Attorneys for the Florida House of Representatives are appealing a May ruling that bars the chamber from joining the state’s Department of Health in defending its much-maligned 2017 medical marijuana law.
Florida House attorneys issued notice on May 31 that they will appeal Leon County Circuit Judge Charles Dodson’s decision to prevent it from intervening in a lawsuit filed by Patients and Producers Alliance, Inc. against the Department of Health [DOH].
The Patients and Producers Alliance’s [PPA] lawsuit challenges restrictions imposed by the legislature on the number and type of firms that can participate in Florida’s booming medical marijuana industry.
The legislature’s 2017 law, adopted to implement the voter-approved 2016 constitutional amendment that legalized medical marijuana, requires firms be “vertically integrated” – have “seed to sale” capacity to grow, process, sell – instead of allowing businesses to specialize in one aspect of the industry.
It was the second time Dodson had ruled the House could not stand with the DOH in defending the law it adopted.
Last year, he told House attorneys they could not participate in a similar lawsuit filed by Florigrown, which is partially owned by Tampa strip-club operator Joe Redner, a cancer patient who wants to grow his own medical marijuana.
In the “Grow Joe Grow” lawsuit, Dodson ruled the 2017 law unconstitutional and issued a temporary injunction requiring DOH to register Florigrown to grow medical marijuana.
House attorneys appealed. A June 11 hearing is scheduled before the 1st District Court of Appeal to hear their arguments.
In January, the House filed a motion to join the PPA lawsuit. House attorneys argued they have standing because the chamber actually adopted the law and because only the legislative branch can navigate through federal law, which still outlaws marijuana as a Class 1 drug.
“The Florida House of Representatives, as one-half of the state’s policymaking branch, is well-situated to respond to the plaintiff and the court,” the House said in its January filing. “Notably, the MMA [medical marijuana amendment] gives implementation authority – not policymaking authority – to the Department of Health, and the Florida Constitution’s strict, express separation of powers precludes this court from exercising policymaking authority.”
House attorneys argued it is the legislature, not the DOH, that has “the sole constitutional authority to make necessary policy choices for how to implement the MMA within the limits of otherwise conflicting and superseding federal drug policy.”
But Dodson rejected that argument in a two-page order issued in May, citing his November comments from the Florigrown suit.
“The court concludes the Department of Health is the proper defendant,” Dodson wrote. “Because even the Legislature’s policymaking authority must comport with the Constitution, the House does not have a direct and immediate interest in the matter at issue in this litigation such that it stands to gain or lose by the direct legal operation and effect of any judgment rendered by this court.”
The lawsuits challenging the legislature’s “vertical integration” requirement and its 25 dispensary cap – since expanded to 35 after medical marijuana patients surpassed 200,000 – for each of the state’s then-14 licensed operators are among a bevy of lawsuits filed since 2017.
Shortly after assuming office in January, Gov. Ron DeSantis gave lawmakers a March 15 deadline to legalize smokable medical marijuana, which had been banned by the legislature and the target of lawsuits. They did so. DeSantis signed the bill on March 18.
According to the DOH’s Office of Medical Marijuana Use [OMMU], as of May 31, there were 298,337 Florida medical marijuana patients registered by 2,293 “qualified” physicians with 224,815 residents issued ID cards to purchase marijuana at 131 dispensary sites statewide.
Last week, the OMMU approved five more dispensaries for a program growing by an estimated 10,000 patients a week.
According to BDS Analytics of Colorado and The Arcview Group of California’s “State of Legal Marijuana Markets,” Florida’s medical marijuana market will approach $1.1 billion in sales in 2020.
But more than 60 percent of the 131 dispensaries are operated by just three licensed “vertically integrated” corporations, Trulieve , Curaleaf  and Surterra Wellness . Of 22 licensed operators – increased by eight earlier this year – only three have more than 10 sites, three only do delivery and others are not operational.
In May, Surterra and Curaleaf filed administrative complaints against the DOH, seeking the same consideration Trulieve received when it was permitted to open 49 stores — 14 above the limit — after winning a lawsuit that ruled the cap was applied unfairly after the company opened shops in places it may not have if it knew it could only operate 25 then and 35 now.
The “grandfathering in” of the original dispensaries “must be uniformly applied” to all of the state’s original medical marijuana operators, Surterra and Curaleaf maintain.