Florida’s ballot initiative to legalize medical marijuana (commonly known as Amendment 2) passed by an overwhelming margin of 71%. The right of qualified patients to access medical marijuana is now embedded in Florida’s Constitution. On June 23, 2017, Governor Rick Scott signed into law Senate Bill 8-A, which implements the Constitutional Amendment. The new law contains a state preemption provision that addresses how Florida counties and municipalities can regulate dispensaries within their boundaries – placing local Florida governments in a difficult position.
Under Fla. Stat. §381.986(11) (as amended by SB 8-A), local governments have two options on how to regulate dispensary locations. They can ban dispensaries outright – a highly unpopular decision given the level of support for medical marijuana across the State. Otherwise, local governments must treat dispensaries in a similar manner than pharmacies (regulated by Chapter 465 of Florida’s Statutes). Indeed, with the exception of a 500 foot distance requirement from certain schools, local governments must determine the locations of dispensaries in a manner that is not more restrictive than how they determine locations for licensed pharmacies. Moreover, counties and municipalities are prohibited from placing specific limits on the number of dispensaries within their boundaries. Given the amount of pharmacies (think Walgreens and CVS) throughout the State, local governments are left having to decide between two extremes.
Many local governments have enacted moratoriums (temporary bans) to allow for more time to determine how to govern dispensaries under the new law. An example of a county that implemented a moratorium is Palm Beach County. The temporary ban applies to the unincorporated areas of the County. Some local governments have decided to do nothing. For example, Lake Worth – a city located within Palm Beach County – has not revised its ordinance. Instead, the City is relying on state law to govern. As a result, Lake Worth will be home to the first medical marijuana dispensary in Palm Beach County.
Other local governments have begun revising their ordinance to comport with Florida’s new medical marijuana law. To that end, there have been two approaches taken. First, local governments are leaving in place the regulations governing pharmacies and simply adding medical marijuana dispensary language in their ordinance to ensure that dispensaries are regulated in the same manner. Miami-Dade County has taken this approach, which was announced in a memo released in July 2017. Others have sought to redraft pharmacy regulations in order to more strictly regulate dispensaries. For example, Miami Beach is attempting to overhaul its pharmacy regulations – using the pill mill crisis in support thereof – that will limit the locations of new pharmacies and dispensaries within its boundaries. There are questions surrounding the legality of this strategy and the unintended consequences of implementation. It is almost certain to raise concerns and may invite legal challenges by patient advocates and industry stakeholders.
In the coming months more and more local governments will be addressing the issues of how to regulate dispensaries within their boundaries. In doing so, counties and municipalities should be mindful that the citizens of Florida overwhelmingly voted in favor of having access to medical marijuana. The new medical marijuana law already includes exhaustive regulations on dispensaries, including a limitation on the number of facilities that can be located within a particular region. Further limitations or a ban of dispensaries within a county or municipality only creates more barriers for patients in need of access to medicine.