A Sarasota nursery has filed a lawsuit challenging the constitutionality of part of a new law that includes a preference for the citrus industry in the state’s awarding of potentially lucrative medical-marijuana licenses.
The lawsuit, filed last week by TropiFlora, LLC in Leon County circuit court, is similar to a case filed in September that challenges another provision in the law directing a license to be awarded to a member of a black farmers’ group.
In both cases, plaintiffs are seeking injunctions to block the Florida Department of Health from moving forward with awarding licenses while the lawsuits are pending.
The Legislature, during a June special session, passed the law to help carry out a November 2016 constitutional amendment that broadly legalized medical marijuana in the state. In part, the law aimed to resolve legal and political battles about awarding licenses to businesses that would grow and sell medical cannabis.
The law directed the Department of Health to award 10 licenses and included direction that for up to two licenses, “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.”
TropiFlora, which was denied a medical-marijuana license in 2015 under an earlier law, contends that the preference for the citrus industry violates the Florida Constitution. In part, it argues that the preference is what is known as a “special law” that improperly “grants a privilege to private persons and/or private corporations that own facilities” involved in the citrus industry.
“There is no valid or rational relationship between private persons and/or private corporations that own facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and providing safe, efficacious, and quality medical marijuana products to the qualified patients in Florida,” said the 19-page lawsuit filed Friday.
The Department of Health has not issued licenses under the citrus preference and had not filed a response to the lawsuit as of Wednesday morning. The citrus preference drew questions during the special legislative session. Sen. Rob Bradley, a Fleming Island Republican who has played a key role in medical-marijuana legislation, said during the session the preference was included to help a declining citrus industry, which has been devastated by citrus greening.
“Some of those old-line facilities and businesses are deteriorating much like the city of Detroit,” Bradley said at the time. “This would allow them to have an opportunity to redesign or repurpose their facilities.”
With Florida expected to have one of the largest medical-marijuana markets in the country, battles over the licenses have been fierce. The battles started after lawmakers in 2014 approved a limited law that allowed non-euphoric cannabis for patients with certain conditions, such as children with severe epilepsy.
The department, which has faced heavy litigation over the application and selection process, has approved 13 licenses. One of those came last week when the department reached a settlement with the Homestead grower Keith St. Germain Nursery Farms.
In addition to the citrus-related case, TropiFlorida has other litigation pending against the department in Leon County circuit court and the 1st District Court of Appeal.
The new lawsuit raises similar legal arguments as the case involving a license for black farmers. In that case, Columbus Smith, a black farmer from Panama City, alleges that the June law is so narrowly drawn that only a handful of black farmers could qualify for the license.
The law specified that one license goes to a black farmer who had been part of settled lawsuits about discrimination by the federal government against black farmers. The law also said that the black farmer who receives a license would have to be a member of the Black Farmers and Agriculturalists Association-Florida Chapter.
Smith contends he meets the qualification of being part of the litigation about discrimination against black farmers but has not been allowed to join the black farmers association, effectively preventing him from receiving a license.
The Department of Health on Oct. 18 filed a response objecting to a possible injunction in the case. It said such an injunction would prevent the department from awarding any licenses.
“As there are currently 44,973 qualified patients in the Office of Medical Marijuana Use registry, and the current growth rate is 254 patients per day, restricting the supply of medical marijuana is not simply maintaining the status quo and clearly not in the best interest of the public,” the Oct. 18 response said.
by Jim Saunders, News Service of Florida