DATE: October 4, 2017 MEMORANDUM TO: FROM: Town Commission Dave Bullock, Manager SUBJECT: Ordinance 2017-20: Prohibition on Medical Marijuana Treatment Center Dispensing Facilities On November 8, 2016, Florida voters approved Amendment 2, which fully legalized the medical use of marijuana (Cannabis) throughout the State for individuals with specified debilitating conditions and authorized cultivation, processing, distribution, and sale of marijuana and related activities by licensed Medical Marijuana Treatment Centers. On June 23, 2017, Governor Rick Scott signed into law SB 8A, which, in part, essentially preempted the regulation of marijuana dispensaries to the State. Florida Statutes 381.986 limits the manner by which a municipality or county may regulate medical marijuana dispensing organizations and marijuana treatment centers. Essentially, the recently adopted legislation left local municipalities and counties with two options: Treat medical marijuana dispensing organizations and medical marijuana treatment centers exactly the same as pharmacies and allow them in any zoning district where a pharmacy would be allowed, with no additional restrictions or regulations; or Prohibit medical marijuana dispensing organizations and medical marijuana treatment centers in their entirety. (See, Fla. Stat. 381.986(11), below). Under the Town s Zoning Code, pharmacies are allowed in the C-1, C-2, C-3, and MUC-1 Zoning Districts. If the Town does not prohibit medical marijuana dispensing facilities and marijuana treatment centers pursuant to F.S. 381.986(11), then that use would be allowed in any of the above-mentioned zoning districts. Pursuant to Florida Statutes, the Town would not be permitted to regulate the number of dispensary and/or treatment centers or enforce any other restriction or regulation that would not be applicable to a pharmacy.
At their September 25, 2017 Regular Workshop Meeting the Town Commission considered the following options to address this issue: 1. Allow the existing moratorium on medical marijuana dispensing facilities and marijuana treatment centers to expire on December 5, 2017, which would allow an unlimited number of medical marijuana dispensing facilities and marijuana treatment centers in the C-1, C-2, C-3, and MUC-1 Zoning Districts; or 2. Prior to the termination of the existing moratorium, adopt an ordinance extending the moratorium to provide additional time to consider the issue; or 3. Prior to the termination of the existing moratorium, adopt an ordinance prohibiting medical marijuana dispensing facilities and medical marijuana treatment centers in their entirety within the jurisdictional boundaries of the Town. Ordinance 2017-20, attached, prohibits the establishment and operation of medical marijuana dispensing facilities and medical marijuana treatment centers in their entirety within the jurisdictional boundaries of the Town. First reading of Ordinance 2017-20 was held at the October 2, 2017, Regular Meeting. Town Commission asked for clarification on definitions from the Statute. There is ambiguity in the Statute because medical marijuana treatment center and medical marijuana dispensing facility are not defined terms. Based on a reading of the Statute, it appears that the treatment center is the entity that owns the license and has the right to cultivate, process and dispense marijuana. The entity is allowed to operate no more than 25 dispensary facilities (See, Fla. Stat. 381.986(8), below). Staff cannot find anything in the Statute that prohibits a dispensing facility from also being the location of the cultivation and processing component. Therefore, Ordinance 2017-20 has been revised to ensure that the Town is protected against any types of these facilities. Please don t hesitate to contact me if you have any questions or need additional information regarding this issue.
Fla. Stat. 381.986(8) MEDICAL MARIJUANA TREATMENT CENTERS. (a) The department shall license medical marijuana treatment centers to ensure reasonable statewide accessibility and availability as necessary for qualified patients registered in the medical marijuana use registry and who are issued a physician certification under this section. 1. As soon as practicable, but no later than July 3, 2017, the department shall license as a medical marijuana treatment center any entity that holds an active, unrestricted license to cultivate, process, transport, and dispense low-thc cannabis, medical cannabis, and cannabis delivery devices, under former s. 381.986, Florida Statutes 2016, before July 1, 2017, and which meets the requirements of this section. In addition to the authority granted under this section, these entities are authorized to dispense low-thc cannabis, medical cannabis, and cannabis delivery devices ordered pursuant to former s. 381.986, Florida Statutes 2016, which were entered into the compassionate use registry before July 1, 2017, and are authorized to begin dispensing marijuana under this section on July 3, 2017. The department may grant variances from the representations made in such an entity s original application for approval under former s. 381.986, Florida Statutes 2014, pursuant to paragraph (e). 2. The department shall license as medical marijuana treatment centers 10 applicants that meet the requirements of this section, under the following parameters: a. As soon as practicable, but no later than August 1, 2017, the department shall license any applicant whose application was reviewed, evaluated, and scored by the department and which was denied a dispensing organization license by the department under former s. 381.986, Florida Statutes 2014; which had one or more administrative or judicial challenges pending as of January 1, 2017, or had a final ranking within one point of the highest final ranking in its region under former s. 381.986, Florida Statutes 2014; which meets the requirements of this section; and which provides documentation to the department that it has the existing infrastructure and technical and technological ability to begin cultivating marijuana within 30 days after registration as a medical marijuana treatment center. b. As soon as practicable, but no later than October 3, 2017, the department shall license one applicant that is a recognized class member of Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), or In Re Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011) and is a member of the Black Farmers and Agriculturalists Association Florida Chapter. An applicant licensed under this sub-subparagraph is exempt from the requirements of subparagraphs (b)1. and 2. c. As soon as practicable, but no later than October 3, 2017, the department shall license applicants that meet the requirements of this section in sufficient numbers
to result in 10 total licenses issued under this subparagraph, while accounting for the number of licenses issued under sub-subparagraphs a. and b. 3. For up to two of the licenses issued under subparagraph 2., the department shall give preference to applicants that demonstrate in their applications that they own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana. 4. Within 6 months after the registration of 100,000 active qualified patients in the medical marijuana use registry, the department shall license four additional medical marijuana treatment centers that meet the requirements of this section. Thereafter, the department shall license four medical marijuana treatment centers within 6 months after the registration of each additional 100,000 active qualified patients in the medical marijuana use registry that meet the requirements of this section. 5. Dispensing facilities are subject to the following requirements: a. A medical marijuana treatment center may not establish or operate more than a statewide maximum of 25 dispensing facilities, unless the medical marijuana use registry reaches a total of 100,000 active registered qualified patients. When the medical marijuana use registry reaches 100,000 active registered qualified patients, and then upon each further instance of the total active registered qualified patients increasing by 100,000, the statewide maximum number of dispensing facilities that each licensed medical marijuana treatment center may establish and operate increases by five. b. A medical marijuana treatment center may not establish more than the maximum number of dispensing facilities allowed in each of the Northwest, Northeast, Central, Southwest, and Southeast Regions. The department shall determine a medical marijuana treatment center s maximum number of dispensing facilities allowed in each region by calculating the percentage of the total statewide population contained within that region and multiplying that percentage by the medical marijuana treatment center s statewide maximum number of dispensing facilities established under sub-subparagraph a., rounded to the nearest whole number. The department shall ensure that such rounding does not cause a medical marijuana treatment center s total number of statewide dispensing facilities to exceed its statewide maximum. The department shall initially calculate the maximum number of dispensing facilities allowed in each region for each medical marijuana treatment center using county population estimates from the Florida Estimates of Population 2016, as published by the Office of Economic and Demographic Research, and shall perform recalculations following the official release of county population data resulting from each United States Decennial Census. For the purposes of this subparagraph:
(I) The Northwest Region consists of Bay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson, Jefferson, Leon, Liberty, Madison, Okaloosa, Santa Rosa, Taylor, Wakulla, Walton, and Washington Counties. (II) The Northeast Region consists of Alachua, Baker, Bradford, Clay, Columbia, Dixie, Duval, Flagler, Gilchrist, Hamilton, Lafayette, Levy, Marion, Nassau, Putnam, St. Johns, Suwannee, and Union Counties. (III) The Central Region consists of Brevard, Citrus, Hardee, Hernando, Indian River, Lake, Orange, Osceola, Pasco, Pinellas, Polk, Seminole, St. Lucie, Sumter, and Volusia Counties. (IV) The Southwest Region consists of Charlotte, Collier, DeSoto, Glades, Hendry, Highlands, Hillsborough, Lee, Manatee, Okeechobee, and Sarasota Counties. (V) The Southeast Region consists of Broward, Miami-Dade, Martin, Monroe, and Palm Beach Counties. c. If a medical marijuana treatment center establishes a number of dispensing facilities within a region that is less than the number allowed for that region under sub-subparagraph b., the medical marijuana treatment center may sell one or more of its unused dispensing facility slots to other licensed medical marijuana treatment centers. For each dispensing facility slot that a medical marijuana treatment center sells, that medical marijuana treatment center s statewide maximum number of dispensing facilities, as determined under sub-subparagraph a., is reduced by one. The statewide maximum number of dispensing facilities for a medical marijuana treatment center that purchases an unused dispensing facility slot is increased by one per slot purchased. Additionally, the sale of a dispensing facility slot shall reduce the seller s regional maximum and increase the purchaser s regional maximum number of dispensing facilities, as determined in sub-subparagraph b., by one for that region. For any slot purchased under this sub-subparagraph, the regional restriction applied to that slot s location under sub-subparagraph b. before the purchase shall remain in effect following the purchase. A medical marijuana treatment center that sells or purchases a dispensing facility slot must notify the department within 3 days of sale. Fla. Stat. 381.986(11) (11) PREEMPTION. Regulation of cultivation, processing, and delivery of marijuana by medical marijuana treatment centers is preempted to the state except as provided in this subsection. (a) A medical marijuana treatment center cultivating or processing facility may not be located within 500 feet of the real property that comprises a public or private elementary school, middle school, or secondary school. (b)1. A county or municipality may, by ordinance, ban medical marijuana treatment center dispensing facilities from being located within the boundaries of
that county or municipality. A county or municipality that does not ban dispensing facilities under this subparagraph may not place specific limits, by ordinance, on the number of dispensing facilities that may locate within that county or municipality. 2. A municipality may determine by ordinance the criteria for the location of, and other permitting requirements that do not conflict with state law or department rule for, medical marijuana treatment center dispensing facilities located within the boundaries of that municipality. A county may determine by ordinance the criteria for the location of, and other permitting requirements that do not conflict with state law or department rule for, all such dispensing facilities located within the unincorporated areas of that county. Except as provided in paragraph (c), a county or municipality may not enact ordinances for permitting or for determining the location of dispensing facilities which are more restrictive than its ordinances permitting or determining the locations for pharmacies licensed under chapter 465. A municipality or county may not charge a medical marijuana treatment center a license or permit fee in an amount greater than the fee charged by such municipality or county to pharmacies. A dispensing facility location approved by a municipality or county pursuant to former s. 381.986(8)(b), Florida Statutes 2016, is not subject to the location requirements of this subsection. (c) A medical marijuana treatment center dispensing facility may not be located within 500 feet of the real property that comprises a public or private elementary school, middle school, or secondary school unless the county or municipality approves the location through a formal proceeding open to the public at which the county or municipality determines that the location promotes the public health, safety, and general welfare of the community. (d) This subsection does not prohibit any local jurisdiction from ensuring medical marijuana treatment center facilities comply with the Florida Building Code, the Florida Fire Prevention Code, or any local amendments to the Florida Building Code or the Florida Fire Prevention Code.
TOWN OF LONGBOAT KEY Ordinance 2017-20 Prohibition on Medical Marijuana Town Commission Regular Meeting November 6, 2017 1
TOWN OF LONGBOAT KEY Background November 8, 2016: Florida voters approved Amendment 2, which fully legalizes the medical use of medical marijuana throughout the State for individuals with debilitating conditions Authorizes cultivation, processing, distribution, and sale of marijuana by licensed medical marijuana treatment centers. December 5, 2016: Town Commission adopted Ordinance 2016-30, placing a 12-month moratorium on the establishment and operation of medical marijuana dispensing organizations and treatment centers. 2
TOWN OF LONGBOAT KEY Recent State Legislation The state recently adopted legislation which provided two options for local jurisdictions: Treat medical marijuana dispensing organizations and medical marijuana treatment centers exactly the same as pharmacies and allow them in any zoning district where a pharmacy would be allowed, with no additional restrictions or regulations; or Prohibit medical marijuana dispensing organizations and medical marijuana treatment centers in their entirety. 3
TOWN OF LONGBOAT KEY Town s Zoning Code Pharmacies are currently allowed in the following Zoning Districts: C-1, C-2, C-3, and MUC-1 Under State Statute, medical marijuana dispensing organizations and marijuana treatment centers would be allowed in any of those districts. The Town would have no authority to regulate the number of dispensary and/or treatment centers or enforce any other restriction or regulation that would not be applicable to a pharmacy. 4
TOWN OF LONGBOAT KEY Commission Action At the September 25, 2017 Regular Workshop, the Town Commission directed Staff to bring forward Ordinance 2017-20 to prohibit medical marijuana dispensing and treatment facilities in their entirety within the jurisdictional boundaries of the Town. First reading of Ordinance 2017-20 was held at the Commission s October 2, 2017, Regular Meeting. 5
TOWN OF LONGBOAT KEY Ordinance Clarification Town Commission asked for clarification on definitions from the statute. There is ambiguity in the statute because medical marijuana treatment center and medical marijuana dispensing facility are not defined terms. Ordinance 2017-20 has been revised to ensure that the Town is protected against any types of these facilities. 6
ORDINANCE 2017-20 AN ORDINANCE OF THE TOWN OF LONGBOAT KEY, FLORIDA PROHIBITING THE CULTIVATION, PROCESSING, AND/OR DELIVERY OF MARIJUANA BY MEDICAL MARIJUANA TREATMENT OR DISPENSING CENTERS; PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSING FACILITIES AND MEDICAL MARIJUANA TREATMENT CENTERS WITHIN THE TOWN; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ALL ORDINANCES AND RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR READING BY TITLE ONLY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on November 8, 2016, Florida s voters approved an amendment to the Florida Constitution, titled Use of Marijuana for Debilitating Medical Conditions ( Amendment 2 ); and WHEREAS, Amendment 2 fully legalized the medical use of marijuana throughout the State of Florida for those individuals with specified debilitating conditions, and authorized the cultivation, processing, distribution, and sale of marijuana and related activities by licensed Medical Marijuana Treatment Centers; and WHEREAS, on June 23, 2017, Governor Rick Scott signed into law SB 8A, which, in part, essentially preempted the regulation of marijuana dispensaries to the State; and WHEREAS, Section 381.986(11), Florida Statutes, authorizes a county or municipality to ban medical marijuana treatment center dispensing facilities from being located within the boundaries of that county or municipality; and WHEREAS, Section 381.986(11) further provides that [a] county or municipality that does not ban dispensing facilities under this subparagraph may not place specific limits, by ordinance, on the number of dispensing facilities that may locate within that county or municipality, and that [except] as provided in paragraph (c), a county or municipality may not enact ordinances for permitting or for determining the location of dispensing facilities which are more restrictive than its ordinances permitting or determining the locations for pharmacies licensed under chapter 465; and WHEREAS, dispensing of cannabis remains illegal under federal law and the U.S. Department of Justice has discussed federal enforcement of such laws with respect to state regulated cannabis operations in the 2013 "Cole memorandum;" and WHEREAS, potential adverse impacts on the health, safety, and welfare of residents and business from secondary effects associated with the sale and distribution of marijuana exist, potentially including: offensive odors, trespassing, theft, fire hazards, increased crime in and about the medical marijuana dispensing facility business, robberies, negative impacts on nearby businesses, and nuisance problems; and Page 1 of 3 Ordinance 2017-20
WHEREAS, certain of the above potential adverse impacts are accentuated by the current difficulties experienced by medical marijuana dispensing facility business in obtaining banking services, necessitating such businesses to operate on a cash basis; and WHEREAS, there exists the potential for misappropriation and diversion of medical marijuana to nonmedical uses; and WHEREAS, in 1996, the state of California became the first state to legalize the use of medical marijuana, and several other states subsequently enacted laws legalizing medical marijuana in various circumstances; and WHEREAS, the California Police Chiefs Association developed a Task Force on Marijuana Dispensing facilities that prepared the White Paper on Marijuana Dispensing facilities published in 2009 ( White Paper ); and WHEREAS, the White Paper examined the direct and indirect adverse impacts of marijuana in local communities and indicated that marijuana dispensing facilities may attract or cause ancillary crimes, and may result in adverse effects, such as the sale of other illegal drugs at dispensing facilities, loitering and nuisances, and increased traffic near dispensing facilities; and WHEREAS, the White Paper further indicates that the presence of marijuana dispensing businesses may contribute to the existence of a secondary market for illegal, street-level distribution of marijuana; and WHEREAS, the White Paper outlines the following typical complaints received from individuals regarding certain marijuana dispensing facility study areas: high levels of traffic going to and from the dispensing facilities, people loitering in the parking lot of the dispensing facilities, people smoking marijuana in the parking lot of the dispensing facilities, vandalism near dispensing facilities, and citizens worried that they may become a crime victim due to proximity to dispensing facilities; and WHEREAS, the White Paper ultimately concludes that there may be adverse secondary effects created by the presence of medical marijuana dispensing facilities in communities; and WHEREAS, The Marijuana Policy Group has published a memorandum called Municipal Dispensary Allocation: Florida, which evaluated the market need for medical marijuana dispensing facilities and the harmful consequences and secondary effects of over-saturation of medical marijuana dispensing facilities within the market place; and WHEREAS, The Marijuana Policy Group determined that Florida should have no more than one (1) dispensing facility for each fifty-thousand residents and the optimal ratio is one (1) dispensing facility per 67,222 residents, and the Town of Longboat Key has a population (approximately 6,700) well below such ratios; and Page 2 of 3 Ordinance 2017-20
WHEREAS, the Town Commission finds that a prohibition on the establishment and operation of medical marijuana treatment center dispensing facilities within the boundaries of the Town, pursuant to Florida Statute 381.986, is in the interest of the health, safety and welfare of the residents of the Town. NOW THEREFORE BE IT ENACTED BY THE TOWN OF LONGBOAT KEY, FLORIDA: SECTION 1. true and correct. The above Whereas clauses are hereby ratified and confirmed as SECTION 2. Medical Marijuana Treatment Center Dispensing Facilities are hereby prohibited and shall not be located within the boundaries of the Town of Longboat Key. The Town shall not accept, process or approve any request or application for a development order, building permit, or other approval associated with a proposed Medical Marijuana Treatment Center Dispensing Facility. SECTION 3. The terms used herein shall be interpreted in accordance with Florida Statute 381.986 and Chapter 64-4 of the Florida Administrative Code. The intent of this section is to ban medical marijuana treatment center dispensing facilities from being located within the boundaries of the Town as authorized by Florida Statute 381.986(11). SECTION 4. If any section, subsection, clause or provision of this ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 5, This Ordinance shall take effect upon second reading and public hearing in accordance with Law and the Charter of the Town of Longboat Key. Passed on the first reading the 2 nd day of October, 2017. Adopted on the second reading and public hearing the day of, 2017. ATTEST: Terry A Gans, Mayor Trish Granger, Town Clerk Page 3 of 3 Ordinance 2017-20
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