Medical Cannabis Ordinances Tuesday, December 20, 2016
Pre Amendment 2 Law In 2014, the Florida Legislature passed, and Gov. Rick Scott signed, a bill that attempted to exempt a limited class of individuals with certain medical disorders and their legal representatives from criminal penalties for using and possessing low-thc cannabis that was ordered for the patients by their physicians. Then, in 2016, the legislature passed a bill intended to improve the law, which would also allow terminally ill patients to access all forms of medical cannabis. Because the law only applies to a very specific type of marijuana or terminally ill patients, and because the bill depends on physicians violating federal law, Medical Policy Project does not consider Florida a medical marijuana state.
History Pre Amendment 2 Law What type of marijuana does the law apply to? The law protects certain patients from penalties for using low-thc cannabis, which is defined as containing 0.8 percent or less of tetrahydrocannabinol and more than 10 percent of cannabidiol. The law also has a second provision for terminally ill patients, defined as those who are expected to die within one year of diagnosis without lifesustaining procedures, who may use any type of medical cannabis. Smoking medical cannabis, which does not include use of a vaporizer, is prohibited for both groups of patients. Who qualifies for this limited program? Patients with cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms may qualify for the program if no satisfactory alternative treatment options exist. Patients who are terminally ill must have medical marijuana recommend by two doctors, one of whom must be a specialist, and must have considered all FDA approved treatments and given written, informed consent. A doctor must have been treating the patient for at least three months before registering the patient, which will make access very difficult for anyone moving to Florida, since there is no provision for recognizing out-of-state ID cards.
First Dispensary opened in Tallahassee -- July 2016 Trulieve, one of the six Florida medical cannabis licensees, announced that they are the first dispensary in the State of Florida to receive a formal Authorization to Process and Authorization to Dispense from the Florida Department of Health.
Clearwater opened in August 2016 Truelieve hopes to open 9 more dispensaries in Florida cities over the next year, including Orlando, Bradenton, St. Petersburg, and Miami.
Nursery Facilities in Florida
The Basics of Amendment 2: Amendment 2 is a voter-initiated constitutional amendment legalizing medical marijuana possession and use. Amendment 2 establishes a caregiver-patient system for medical marijuana distribution. Caregivers must be 21 years of age, agree to assist with a patient s medical marijuana use, and receive a caregiver identification card by the Florida Department of Health (DOH). The measure establishes Medical Marijuana Treatment Centers (MMTC) that have the authority to acquire, cultivate, process, transport, and sell all marijuana products. The measure does not cap how many caregivers a patient may have or how many patients a caregiver may have. The measure does not cap or limit how much medical marijuana a patient may possess or purchase, nor does it regulate the number of MMTCs allowed to operate. There is no age limit on possession or use of medical marijuana under Amendment 2. Minors may use it with parental consent. State Regulation: Amendment 2 requires the DOH to conduct rulemaking around Amendment 2 within six (6) months of passage, which is roughly a deadline of May 9, 2017. If the DOH fails to do so, any Florida citizen has standing to sue the State of Florida to compel compliance by DOH with Amendment 2. The state s legislative session begins on March 7, 2017. The Florida Legislature will likely have to pass an implementing bill for all issues related to Amendment 2 during their 60-day annual session, ending on May 5, 2017.
Medical Qualifications: Amendment 2 requires a Debilitating Medical Condition in order for a patient to qualify for medical marijuana, which includes cancer, epilepsy, glaucoma, positive status for HIV/AIDS, post-traumatic stress disorder, amyotrophic lateral sclerosis (ALS), Crohn s disease, Parkinson s disease and multiple sclerosis. The definition also allows for other debilitating medical conditions of the same class as or comparable to those enumerated and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient. The word comparable is not defined. This is a large loophole and potential opportunity for abuse of an otherwise highly regulated system. Physicians: Florida physicians may give a written medical marijuana certification to a patient with a qualifying medical condition. Amendment 2 requires the physician to conduct a physical examination of the patient along with a full assessment of the patient s medical history prior to giving the certification. Amendment 2 does not cap how much marijuana a physician may recommend or how many certifications a physician may give a patient at one time. Additionally, HIPAA privacy regulations are triggered as a result of the physician-patient relationship, so the Florida DOH may have difficulties enforcing any limits on the amount and frequency of physician recommended medical marijuana certifications.
Local Government Authority: Amendment 2 is silent as to local government regulation of medical marijuana. It does not give an opt-out to local governments who do not wish to have medical marijuana sales within their jurisdictions. Public Health and Safety: Amendment 2 does not allow smoking of marijuana in public. However, the word public is not defined. Additionally, the measure is silent as to other forms of consumption beyond smoking including ingestion of edible marijuana food products, vaping, dabbing or the use of marijuana tinctures and oils. From a law enforcement perspective, the measure does not define a standard for under the influence of marijuana, so the state will have to address this issue, otherwise enforcement of DUI or DUID laws will be legally and practically very difficult. Federal Law: Regardless of the passage of Amendment 2, marijuana remains illegal under federal law.
Zoning Examples from Local Governments Some local governments allow the use in commercial or industrial zones with no specific regulations (Tallahassee, Clearwater, Gainesville and Bradenton) Some local governments have issued a temporary moratorium (Boca Raton, Delray Beach and Orlando) A few local governments have banned the use (Pasco County and Plant City) Many local governments have adopted ordinances that require specific regulations concerning the use (Leesburg, Altamonte Springs, Vero Beach, Dania Beach and Naples)
City of Ocala Options 1. Proceed with an ordinance (2017-14) to allow the use as a special exception in certain zoning districts (B-4 and B-5) with specific regulations 2. Adopt a temporary moratorium (Ordinance 2017-15) in order to give staff time to investigate the impacts of the proposed use (No later than September 30, 2017)
Proposed Definition Medical cannabis retail establishment means a dispensing organization as defined in the section 381.986, FS (2016) (the Act ) and which (1) has been approved by the Florida Department of Health to dispense low-thc cannabis (as defined in the Act) or medical cannabis (as defined in the Act) pursuant to the Act and regulations adopted pursuant to the Act, and (2) which is dispensing such low-thc cannabis or medical cannabis to a qualified patient (as defined in the Act). If the Act is amended subsequent to the effective date of the ordinance adopting this section, the definition set forth herein shall not apply to any establishment that no longer complies with the definition of such use on such effective date, and such use shall not be a permitted use under this code. Any establishment that does not meet the foregoing definition shall not be considered a medical cannabis retail establishment notwithstanding that it is permitted to sell and distribute marijuana (as defined in, and pursuant to, the constitutional amendment approved by Florida voters on November 8, 2016 ( Amendment 2 )); such a facility is not a permitted use (including by way of special exception) within any zoning district until further amendment to this code.
Proposed Regulations A medical cannabis retail establishment shall be permitted with a special exception in the B-4 (General Business) and B-5 (Wholesale Business) zoning districts subject to the following criteria: A security plan that has been approved by the police chief prior to the special exception hearing, and that complies with the following; applicants shall submit schematics and similar documents concerning the specifics of the security plan: Section 391.986(6)(d) of the Act and Each vehicle transporting low-thc cannabis or medical cannabis shall contain a non-removal GPS system and a non-removable camera (with sufficient storage to record at least the previous one hour of use of the vehicle), so that if the vehicle is stolen, the vehicle can be located and the thief apprehended. A medical cannabis retail establishment shall not be permitted: Within two thousand five hundred (2,500) feet of another medical marijuana establishment. Within one thousand (1,000) feet of a school, day care facility, park, recreation center or church/place of worship. A medical cannabis retail establishment shall be located in a freestanding structure (i.e., there may be no other tenants or uses) with a maximum gross floor area of six thousand (6,000) square feet. A medical marijuana retail establishment shall not have a drive through service aisle. All dispensing and sales of products shall occur inside the building.
Loitering: Proposed Regulations A medical cannabis retail establishment shall provide adequate indoor seating for its customers, clients, patients and business invitees. Customers, clients, patients or business invitees shall not be directed, encouraged or allowed to stand, sit (including in a parked car for any period of time longer than reasonably required for a person's passenger to conduct their official business and depart), or gather or loiter outside of the building where the establishment is operating, including in any parking areas, sidewalks, rights-of-way, or neighboring properties. All pedestrian queuing or loitering at any time, including prior to business hours, outside of an establishment is prohibited. A medical cannabis retail establishment shall not engage in any activity other than those activities specifically defined herein as an authorized part of the use. The preparation, wholesale storage, cultivation, or processing of any form of marijuana or marijuana product and on-site consumption of any marijuana or marijuana product is specifically prohibited. On-site storage of any form of marijuana or marijuana product that is not available for sale is prohibited.
Proposed Regulations Any sign for a medical cannabis retail establishment shall comply with the requirements of this code (e.g., Section 110-151) and the following: The sign shall identify the name of the dispensing organization only. The sign shall not contain any text referring to cannabis, marijuana, pot or similar terms, or any text or pictures that are reasonably likely to be deemed to refer thereto (such as 420, marijuana leaves, joints or pipes). A special exception for a medical cannabis retail establishment shall be valid for three (3) years, subject to compliance with the conditions of approval and all state laws, licensing and operational requirements (including those set forth in the Act). A renewal of a special exception for three (3) years must be obtained prior to expiration of the special exception. If the special exception is not renewed prior to expiration, the medical marijuana retail establishment shall no longer be permitted (unless a new special exception is obtained). A special exception for a medical cannabis retail establishment can be immediately terminated if in violation of the code or act. No transfer of the Special Exception