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The Florida Supreme Court held oral arguments yesterday on two significant cases involving marijuana. The court heard arguments relating to a request by the Attorney General on whether an adult-use ballot initiative met the state’s legal requirements as well as the continuation of the Florigrown lawsuit against the Department of Health challenging the state’s license caps and the vertical integration market structure.
Florida’s administration including the Attorney General, the Governor, the House, and the Senate showed up in force to fight these two cases. The Supreme Court’s decisions will define the constitutional role of marijuana in the state and the ability of the state to regulate the industry. These cases point out the complexity of citizen-initiated ballot measures to amend state constitutions, especially with topics like marijuana that pose safety and health risks to citizens.
The united front displayed by Florida’s administration suggests that the state is trying to get control of the marijuana issue. Marijuana has been a loose cannon in Florida with allegations of favoritism in the distribution of licenses and the subsequent sale of these licenses at astronomical prices. The Supreme Court’s decision on these two cases will help the industry understand the path forward for future growth including the legalization of adult-use marijuana.
Make it Legal Florida Adult Use Ballot Initiative
The State’s Attorney General and the State Senate asked that the Supreme Court to stop the Adult-Use of Marijuana ballot petition that was filed by Make It Legal Florida using two separate arguments.
First, the Attorney General petitioned the court to provide an advisory opinion that it Make it Legal Florida’s initiative failed the technical requirements for it to move forward. The main argument is that the 75-word summary of the ballot initiative will mislead voters into believing that the use or purchase of marijuana would be legal, when in fact, it is still illegal under federal law.
The State Senate piled on by filing a Motion to Dismiss claiming that the ballot initiative failed the signature threshold requirements. In the Motion, it was noted that Make It Legal announced on January 13, 2020 that the initiative would be placed on a ballot in 2022, which creates uncertainty as to whether the petition meets the signature certification requirements. This technical argument is loaded with issues that will impact future ballot initiatives.
Florida Department of Health, Etc., et. al. v. Florigrown, LLC, et. al.
In the Florigrown case, the Governor, the State House, and Florigrown asked the Supreme Court to address whether the state’s regulations are constitutional. The answer will depend on how the court interprets the use of the word “or” versus the word “and “ in certain medical marijuana regulations. The attorney representing the Governor’s office, Joe Jacquot, indicated during the oral arguments that the state would like the court’s decision in order to prevent future litigation around this issue. The state’s confidence on this issue makes it appear that they expect a favorable answer.
Marijuana litigation related to legalization and license allocations has become the norm. The question is whether state and local governments will soon succumb to litigation fatigue and focus on more pressing matters than legalizing the industry. At some point, litigation costs become more costly than the economic benefit that the industry provides. The industry should start self-policing when and where it is appropriate to challenge these regulatory decisions.