By Michael Liss, Esq.
Florida’s medical cannabis system may soon be found unconstitutional by the Florida Supreme Court. In a case called “Florigrown,” the court will soon rule after hearing a very unusual second round of oral arguments. Also unusual, it was the Justices who requested more time to hear additional arguments, not one of the parties.
The first round of briefs and arguments addressed several issues which the State of Florida said were errors in how the trial and appellate courts ruled. Florigrown, a company which was denied a license to operate as a Medical Marijuana Treatment Center (“MMTC”), despite being qualified under the law’s criteria, won an injunction from a trial court ordering Florida’s Department of Health to issue a license to it. To determine that the license should be issued, the trial court found that Florida’s “Medical use of marijuana” law, §381.986 was unconstitutional. All was affirmed on appeal.
The Supreme Court heard oral arguments after the briefs of the parties had been submitted, with the State of Florida defending the law as passed by the legislature, and asking the Supreme Court to set aside the order to issue the license. After arguments but prior to ruling, the justices asked the State and Florigrown to file new briefs and prepare for new oral arguments on a particular issue. The issue is whether our “Medical use of marijuana” statute amounts to a “special law”, which is a type of law deemed unconstitutional in Florida. A special law favors a particular category of (usually) businesses unfairly.
A factual reminder: After our ballot initiative was approved by over 70% of voters, Florida granted two dozen winning tickets for lucky companies to operate cannabis businesses in Florida. The existing criteria would allow for any number of operators. While other companies meet the criteria for new licenses, the state has not issued any new licenses. To date, 22 licenses have been granted. Only a dozen of those are in operation. The licenses can be sold to qualified companies on a waiting list. Those licenses have sold for tens of millions of dollars.
Questions were asked about how the government could defend granting licenses, solely, to businesses which had already been approved under the 2014 low-thc amendment or which had lawsuits pending against the state, which were settled with a grant of a license. It’s true, the only licensees allowed to operate were determined when the state passed the law in 2017, and every other qualified applicant is on a “wait list” waiting for the state to change its law or its will. Florigrown sued because it was placed on the wait list.
The Supreme Court wanted to hear more about the “special law” issue, which was not primary in the first round. Florida deems “special laws” unconstitutional. “Special” laws benefit specific entities, and do not allow the same benefit for all similarly situated. The heart of the issue is whether the vertical integration statute grant rights to particular companies which are not afforded to companies, generally. Florida argued that the law allows for “classes” of businesses to get particular treatment, just not specific businesses. The law is not a “special” law, but a “general” law, uniformly applied, was the argument.
Florigrown responded that this is clearly a “special” law. Those who automatically were given licenses by the department before the new criteria were adopted, and all other companies, which in reality will never operate under the present law. The department argued that existing restrictions were permitted because the only special treatment for any company was a “grandfather clause” for the licenses granted after 2014 and those applicants with pending suits. None, equally, have been granted since.
Florigrown argued that this was a simple “statutory give-away” which created distinct treatment, which usurps any real opportunity to any company not already possessing a license from obtaining one. Clearly a “special”, not a “general” law. Florigrown, like many companies, paid the application fee and was put on a wait list, not granted a license to operate an MMTC.
I predicted that Florigrown was already going to win based on a different issue (“monopolies are un-American”). I was fascinated when the court asked for the additional briefing. The “special law” issue seems like a “layup” for Florigrown. How can this law not be a “special” law which gives special privilege to lucky ticket holders? The state’s argument seems weak to me, because while “classes” are formed all the time (such as plumbers, lawyers or any other licensed trade), none of those licenses are granted to qualified applicants who are then unable to operate because a specific number of their trade had been met.
Last month, I wrote that 2022 is likely to see an adult-use referendum pass. I opine that Florigrown will have an MMTC license prior to that ballot initiative reaching the voters, that the system in place will be found unconstitutional, and that adult use will be legal after the 2022 vote. Because, after all, we are a country which represents freedom and opportunity for all. Awarding monopolies and preventing competition to the selected few provides no freedom or opportunity for those wishing to enter the industry. “Special law” likely, but one way or another, the Supreme Court is likely to rule that the system we are just starting to get used to is unconstitutional.
Michael Liss, Esq. can be reached at ml@integritycounselpa.com or (561) 981-2507, located in Boca Raton.
