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Florida’s Medical Marijuana Amendment Defeated, but Zoning Issues Loom for Charlotte’s Web Law

Albert E. Dotson, Jr.

In our previous post about the legal challenges that have been raised in the wake of the State of Florida’s establishment of selection rules for the issuance of licenses for growing and selling medical marijuana pursuant to the newly enacted Charlotte’s Web law, we mentioned that there are claims in the lawsuits filed against the State that involve the zoning regulations that are associated with the new law.

Zoning issues relating to medical marijuana will not cause as much havoc as was previously expected given the failure of Amendment 2, which would have legalized medical marijuana (and not just the low-THC strains used to treat epilepsy and cancer) via a constitutional amendment, to receive the 60% approval needed for its adoption in this week’s mid-term elections. Nevertheless, an opinion has not yet been rendered in the legal cases involving Charlotte’s Web and various municipalities have taken steps to delay the growth and sale of marijuana in their municipalities until they have established their own governing regulations.

Municipalities such as Boca Raton want to limit marijuana dispensaries to certain areas of the municipality and some municipalities have proposed legislation to outline restrictions on the issuance of conditional use permits for marijuana dispensaries. In anticipation of the passage of Amendment 2, various municipalities made or proposed changes to their land use and zoning codes to regulate the location of dispensaries, the cultivation of medical marijuana, and the related processing and retail operations. As it currently stands, the zoning-related requirements of the Charlotte’s Web regulations require clarifications as to the Department of Health’s interpretation of zoning authority, because the zoning restrictions placed on dispensing organizations conflict with existing zoning regulations and decisions delegated to local governments. These zoning restrictions include, for example, a requirement that a dispensary be at least 1000 feet away from the nearest property line of a secondary school. Additionally, there are rules concerning the location of dispensaries and the activities that can be conducted in such locations, but there aren’t specific criteria for determining that the dispensaries meet the statutory requirements.

It is not clear whether the decision resolving the legal challenges to Charlotte’s Web will include extensive discussion of the zoning issues that were raised. The rules and regulations promulgated by the State as a result of the administrative judge’s order may require further action by municipalities to ensure that the legal rights of businesses are not limited. Although the zoning issues are important, the primary claims argued in the legal challenges to Charlotte’s Web are based on the lottery system that the Department of Health created to select nurseries that will receive the medical marijuana licenses. We will explore this aspect of the law in our continued blogging on this topic.

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