Before one can sue for breach of contract, he must be able to prove that there is an enforceable contract under which to sue. In Florida, it has been stated many times that contracts with minors can be voidable, and a minor has a legal right to disavow a contract, because of minority.
This article is not intended to provide legal advice nor is it intended to be relied upon by you should you consider to involve yourself in a business related to cannabis and/or marijuana. If you are looking for actual legal counsel in the area, then you would first need to contact us for engagement terms.
On Novermber 8, 2016, the State of Florida’s constitution was amended to include Article 10 § 29 titled, “Medical Marijuana Production, Possession, and Use.” It exempts the medical use of marijuana by a qualifying patient or caregiver from any criminal or civil liability or sanctions under Florida law. Additionally, it exempts physicians from such penalties if they issue a physician certification with reasonable care to a person who has been diagnosed with a debilitating medical condition, as well as Medical Marijuana Treatment Centers if they are registered with the Department of Health and in compliance with applicable regulations.
The constitution defines what it means to have a debilitating medical condition as having:
- Crohn’s disease;
- Parkinson’s disease;
- Multiple Sclerosis; or
- “Other debilitating medical conditions of the same kind or class as or comparable to” those named above “and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”
The final bullet point is very broad and vague so as to provide a bit of grey area with regard to the provision of medical marijuana to patients. It truly opens the door to use beyond those specific diseases listed in the bullet points prior and provides quite a bit of subjective analysis and decision making on physicians.
Furthermore, physicians are able to provide certification to a minor as long as a parent or legal guardian consents in writing.
Switching gears a bit, the aforesaid Medical Marijuana Treatment Centers (also referred to by the acronym “MMTC”) are entities that either acquire, cultivate, possess, process (including food, aerosol, oil and ointment products), transfer, transport, sell, distribute, dispense or administer marijuana products that contain mariuana, related supplies or even educational materials to patients or their caregivers (who must be at least 21-years-old).
Florida Statute 381.986, the “Medical Marijuana Law” (originally enacted in 2014), also addresses the medical marijuana industry and indicates, in part, that any company seeking to be an MMTC must apply for licensure on a form prescribed by the Department of Health and adopted in rule. It essentially created a competition for licensure with a limit on number of licenses to be provided as well as a steep application fee.
Only seven businesses were licensed to cultivate and sell low-THC marijuana prior to the Medical Marijuana Production, Possession, and Use amendment to the Florida constitution. Ten more licenses were to be granted since the Medical Use of Marijuana Act (Senate Bill 8-A) was passed in June 2017. Thereafter, four more licenses are to be issued for every 100,000 active, registered qualified patients in Florida’s medical marijuana registry. Thus, it is still a competition to obtain a license, and it is expensive (as highlighted below).
Any applicant must demonstrate that it has at least been in business in Florida for five consecutive years prior to applying, possesses a valid certificate of registration from the Department of Agriculture and Consumer Services, has the technical and technological ability to cultivate and produce marijuana, including low-THC cannabis and has the financial ability to maintain operations for the duration of a two-year approval cycle as well as the ability to post a $5 million performance bond.
Importantly, Florida’s amendment to its constitution only provides limited exceptions for medical use. Failure to go through the process of receiving the necessary physician certification can absolutely put someone at risk of violating relevant state laws. Further, the MMTCs must be very cautious to follow all relevant regulations in order to steer clear of any potential civil and/or criminal penalties.
The Application for Medical Marijuana Treatment Center Registration must be hand delivered to the Department of health in Tallahassee, Florida during normal business hours. It also must be accompanied by a non-refundable $60,830.00 application fee.
Additionally, the Florida constitutional amendment is clear that it does not purport to give immunity under federal law. That presents an interesting legal issue, since marijuana remains illegal under federal law (specifically, the Controlled Substances Act). There could be a strong argument that Florida’s medical marijuana law is not preempted by federal law, especially after the U.S. Supreme Court came out with its decision in Murphy v. National Collegiate Athletic Association, which should mean that the federal government cannot restrict states from implementing their own marijuana reform laws.
Overall, the industry is poised to grow in Florida and beyond, which is causing many individuals and corporations to consider involvement in the space. Retail sales in the U.S. from twenty jurisdictions were $6.5 billion in 2016 and are expected to rise to $30 billion by 2021. If you want to be involved in the space, you absolutely need to have an appreciation for the new laws that govern the industry.
Have you ever received a check that you couldn’t cash or deposit? These checks are often returned with the designation “NSF,” which is simply an accronym for “non-sufficient funds.” It’s not only a real frustration to deal with, but can severely hurt your business.
In common-speak, we call these “bad checks.” Interestingly, in the State of Florida there is a cause of action for just that — Bad Check — and it could mean not only a requirement that the bad check sender pay up money to the intended recipient, but can also carry criminal penalties.
Private practice lawyers don’t charge individuals with crimes. Instead, the State of Florida could potentially take action, on a criminal basis, against the sender of a bad check.
“Florida law gives the authority to prosecute the crime of passing worthless bank checks to the State Attorneys of Florida’s 20 Judicial Circuits,” states a page from the Florida Attorney General’s Office. “The proper judicial circuit for the prosecution of this crime is usually the circuit in which the check was presented and accepted. The law requires that certain steps be taken by the recipient of a ‘worthless check’ before the State Attorney begins prosecution.”
But you may be more concerned, at least initially, in recovering the money that you were owed and, if possible, having your attorney’s fees and costs in the collection process paid for. That is where we can help.
Florida’s Bad Check Statute — F.S. 68.065 — says that if you provide a written demand that the money under the bad check be paid and the money isn’t paid within 30 days, then you may be entitled to 3 times the amount initially owed. Additionally, court costs and reasonable attorney’s fees may be reimbursable. Furthermore, you can charge up to 5% of the face amount that was due as a service fee.
Don’t let someone get away with sending you a bad check. Contact us if you want more information about how we can help.
For those looking to form a corporate entity with pass-through taxation, no limitation on the number of members (owners) allowed, limited liability for the company’s debts, flexibility to structure management, fewer formalities than a corporation, and/or the ability to form subsidiaries without restriction, the formation of an limited liability company in Florida may be exactly what you need. Before deciding whether or not to take such a leap towards this next stage of planning a business, it is important to recognize and understand the applicable law and whether it appropriately fits your needs.
Florida’s new Limited Liability Company (“LLC”) Act went into effect January 1, 2014. The statute – which is entitled “Florida Revised Limited Liability Company Act” and is codified in Chapter 605 of the Florida Statutes – was enacted for the purpose of ensuring Florida remains a competitive and desirable location for business owners and start-ups to organize and perfect their trade.
The new statute incorporates a number of considerable and notable changes in order to carry out its purpose. These changes include the following: (1) modernizing Florida’s LLC laws in order to better keep pace with the ever-changing developments in the commercial use of LLC’s; (2) serving as an improved and flexible statutory model for courts, attorneys, and business owners to more easily follow and interpret by correcting significant anomalies carried by the language of the old statute; and (3) including provisions from the ABA Revised Prototype LLC Act, Florida’s Revised Model Business Corporation Act, Florida’s Revised Uniform Limited Partnership Act, and the LLC acts utilized in Delaware and other top, influential commercial states. Specifically, some of the highlights of the Florida Revised Limited Liability Act include:
- Expanding the list of non-waivable provisions that can be contained in a LLC’s operating agreement;
- Stating that operating agreements may no longer provide an indemnification clause for certain kinds of impermissible conduct and other certain circumstances;
- Allowing members of the LLC to file a statement of authority or a statement of denial to better clarify who has the ability to bind the LLC to contractual agreements;
- Eliminating the term “managing member,” resulting in LLCs being either “member-managed” or “manager-managed” from this point forward;
- Modifying default voting and management rules for both members and managers of the LLC;
- Clarifying the grounds for judicial dissolution and the appointment of receivers and custodians while also adding provisions regarding the winding up of the LLC’s affairs; and
- Modifying the appraisal rights of LLCs by adding additional events that may serve as triggering appraisal rights.
As of now, Florida’s new LLC Act applies only to LLCs formed on or after January 1, 2014 and to LLCs organized prior to the effective date who have decided to submit to the governance of the new law. Beginning January 1, 2015, all LLCs organized in Florida, including those formed prior to January 1, 2014, will come under the guidance of the statute. By that point, the thought is that all Florida LLCs would have had the requisite amount of time to make sure they are in compliance before becoming subject to the new Act. For those interested in reading further on how the new Florida LLC Act fully modifies and expands the prior version, be sure to review the White Paper prepared by the Executive Committee of the Florida Bar Revised LLC Act Drafting Committee.
In January 2011, the National Football League Players Association (NFLPA) released a report titled, “Dangers of the Game of Football.” In the report, the NFLPA wrote that injuries went from 3.2 per week to 3.7 per week in 2010. Further, 63% of NFL players were injured during the 2010 season compared to a 59% average from 2002-2009. Of those injuries, 13% ended up putting a player on injured reserve.
Injuries are certainly part of the game in the NFL and other professional sports in the United States. For a long time, professional athletes who were playing for teams based in Florida, but injured while playing a game outside of the state, were able to take advantage of a loophole that allowed those players to seek workers compensation claims in other states. Injured athletes would take advantage of this loophole to file claims in states with workers compensation laws that were much more preferable than Florida’s. The Orlando Sentinel provides as great example:
From the inception of the Jaguars in 1995 through 2009, the franchise has played only five of its 224 games in California. Yet 95 percent of the team’s workers-compensation claims have been in California, where workers-comp laws are more favorable for employees.
This will all change when Florida Governor Rick Scott signs a passed bill that will prevent Florida workers from pursuing workers compensation claims in other states when they are injured while temporarily working outside of Florida. Temporary work is defined as working outside of Florida for 10 days in a row or less, or working outside of the state for less than 25 days in a calendar year. Further, the law will only apply in states that have adopted similar legislation.
The professional sports franchises in Florida are strong supporters of the legislation; players associations are not so thrilled with it.