In the end of 2019, the Florida Supreme Court took an appeal from a Florida appellate court on a high-profile case that could change the Florida medical marijuana industry. Last week, in May 2020, the Florida Supreme Court heard oral argument on the case and the next day asked for additional briefing. The Florida marijuana industry patiently awaits a decision from the Florida State Supreme Court, as it could make groundbreaking changes in the industry to either keep the market more closed or significantly open it up.
The case started in the Leon County Circuit Court, when Florigrown filed both a complaint and a request for temporary injunction, in which it claimed that Section 381.986, Fla. Stat., (the implementing statute for the Constitutional amendment) was inconsistent with the Constitutional Amendment, Article X Section 29. More specifically, Florigrown’s claim is based on the fact that the Constitutional amendment seems to contemplate a framework in which horizontal licenses are available (specific licenses for cultivation, processing or dispensing), whereas the statute contemplates a framework that requires vertical integration (each license holder must cultivate, process and dispense medical marijuana). In addition, the Constitution does not mention any caps on the number of licenses, whereas the statute does, whereas the statute has strict caps on the number of licenses available.
The First DCA asked for the Florida Supreme Court to invoke discretionary jurisdiction reviewing the opinion from the lower court, in which the lower court agreed with Florigrown in that the statute was inconsistent with the Constitution and instructed the Department of Health to give Florigrown a registration, under a temporary injunction hearing.
After the Florida Supreme Court heard arguments on the case last week, the Court ordered both sides to file additional briefs to provide additional information to the Court to ultimately make a decision. The Court’s motion asked the parties to provide supplemental briefing on the issue of whether Florigrown, LLC, has “a substantial likelihood of success on the merits of their challenge to section 381.986(8)(a)1,(a)2.a., and (a)3., Florida Statutes (2017), as a special law granting a privilege to a private corporation.” The Florida Department of Health has filed their brief, but Florigrown needs to still file their brief. It will be interesting to see how the rest of this case unravels as it will play a big role in deciding the destiny of the future Florida marijuana industry.
If the Supreme Court agrees with the lower Courts decision in that the Constitution and the statute are inconsistent, then the legislature will need to go back to the drawing board on some portions of the law to create a legislative fix. This legislative fix can embody many different scenarios, including a more open marketplace that is decoupled. Alternatively, if the Supreme Court disagrees with the lower courts and determines that the statute is consistent with the Constitution, then the legislature will not need to “fix” the statute and the Department of Health will be able to move forward with issuing additional licenses, which currently stands at 7 licenses available.
It will be interesting to continue to follow this case and its implications on the Florida market from every aspect. If you are interested in entering the Florida marijuana market or any other market contact us as we can walk you through the steps.