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The Florida Bar Journal
November, 2017 Volume 91, No. 9
Local Regulation of Medical Marijuana in Florida

by Patricia D. Smith and Andrew P. Lannon

Page 59


The use of marijuana for medical purposes has a lengthy history, with the earliest known use occurring around 2900 B.C.1 It was first used in the United States for medical purposes circa 1840.2 As of March 2017, 28 states, Guam, Puerto Rico, and the District of Columbia have medical marijuana laws in place.3

Medical marijuana has numerous recognized health benefits: 1) treatment and prevention of glaucoma; 2) reversal of carcinogenic effects of tobacco; 3) improvement in lung health; 4) control of epileptic seizures; 5) decrease in symptoms of Dravet’s Syndrome, a severe seizure disorder; 6) control spread of cancer; 7) decrease in anxiety; 8) slow the progression of Alzheimer’s disease; 9) ease the pain of multiple sclerosis; 10) ease muscle spasms; 11) lessening of side effects of treatments for Hepatitis C while increasing effectiveness of treatment; 12) treatment of inflammatory bowel diseases like Crohn’s disease and ulcerative colitis; 13) relief of arthritis discomfort; 14) increase of metabolism; 15) improvement of symptoms of Lupus; 16) control of Parkinson’s disease-related tremors; 17) treatment of post-traumatic stress disorder (PTSD); 18) protection for the brain after a stroke; 19) protection of the brain from concussions and trauma; and 20) reduction of pain and nausea from chemotherapy while stimulating appetite.4 Furthermore, medical marijuana is a significantly safer alternative to opioids, which have a high risk of death due to overdose.5

U.S. Governmental Regulation of Medical Marijuana
The federal government’s most extensive regulation of marijuana occurred in the Marihuana Tax Act that was passed in 1937. The Marihuana Tax Act imposed an excise tax on marijuana for medical and industrial uses.6 The act imposed a $1-per-ounce tax on registered persons and a $100-per-ounce tax on unregistered persons.7 The act did not criminalize marijuana: “The legislative history also strongly indicates that the [a]ct was intended merely to impose a very high tax on transfers to non-registrants and not to prohibit such transfers entirely.”8 The 1952 Boggs Act and 1956 Narcotics Control Act set mandatory sentences for drug-related offenses, including marijuana.9

In 1969, the U.S. Supreme Court found the transfer tax provisions of the Marihuana Tax Act unconstitutional because they violated the Fifth Amendment prohibition of self-incrimination.10 Congress subsequently passed the 1970 Comprehensive Drug Abuse Prevention and Control Act that established categories or schedules for drugs depending on their perceived medical usefulness and potential for abuse.11 Marijuana was placed in Schedule 1, a category for drugs that have no valid medical use and a high potential for abuse.12 Congressional committee reports indicate that Congress was unsure whether marijuana should be a Schedule 1 drug and were awaiting commission reports to revisit the issue.13 The bipartisan Shafer Commission appointed by President Richard Nixon recommended removing criminal sanctions for private possession of marijuana.14 However, President Nixon rejected the commission’s recommendation.

Subsequently, a private citizen, Robert Randall, was arrested in Washington, D.C., for cultivating marijuana to treat his glaucoma.15 He argued medical necessity and presented evidence regarding his testing at UCLA Medical Center and John Hopkins University Medical Center that revealed marijuana as the only drug able to stop the deterioration of his eyesight.16 Mr. Randall’s arrest and subsequent lawsuit against the federal government led to the Compassionate Investigational New Drug Program that allowed patients to receive medical marijuana from the government.17 The D.C. Superior Court found no evidence to support the ban on marijuana and dismissed the criminal charges.18

Mr. Randall thereafter sued the U.S. Food and Drug Administration (FDA), Drug Enforcement Administration (DEA), the National Institute on Drug Abuse, the Department of Justice, and the Department of Health, Education & Welfare, to obtain legal access to medical marijuana.19 The FDA created the Compassionate Investigational New Drug Program to settle the lawsuit and provide access to marijuana for people suffering from diseases that responded favorably to the drug.20 In the mid-1980s, the program was expanded to include HIV-positive patients suffering from Wasting Syndrome.21

That expansion resulted in a greater demand for medical marijuana through the program. The Bush Administration perceived the program to be in conflict with their stated position, that marijuana had no valid medical use. As a result, in 1992, President George H.W. Bush ordered the closure of the Compassionate Investigational New Drug Program.22 The 13 patients who were receiving marijuana under the program were grandfathered in, and each received 300 free marijuana joints every month.23

As public opinion regarding marijuana changed and a number of states legalized medical marijuana, pressure mounted for the federal government to take action. In 2013, Deputy Attorney General James Cole issued a memoranda providing guidance for marijuana enforcement that indicated the Department of Justice would not prosecute marijuana crimes in states that legalized marijuana.24 In addition, Congress passed a spending bill that prohibits the Drug Enforcement Administration from using funds to arrest or prosecute patients, caregivers, and businesses that comply with state medical marijuana laws.25

State of Florida
Medical Marijuana’s Introduction Into Florida — In 2014, the Florida Legislature enacted F.S. §381.986, “Compassionate Use of Low-THC Cannabis.”26 Under this statute, effective January 1, 2015, a licensed physician could prescribe medical marijuana to patients suffering from cancer or a medical condition that chronically produces seizures or severe, persistent, muscle spasms if no alternative treatment options existed for that patient and six other enumerated conditions were met.27 Two years later, on November 8, 2016, the overwhelming majority of Floridians (71.3 percent) approved Amendment 2, which expands the previously limited Florida medical marijuana law.28 This amendment is now reflected in Fla. Const. art. X, §29.

Differing Perspectives on Use of Home Rule Power Prior to Senate Bill 8-A — F.S. §381.986(8)(a) (2016) preempted any local government’s home-rule power to regulate the cultivation and processing of medical marijuana by medical marijuana treatment centers (MMTCs).29 As a result, regulation of the cultivation and processing of medical marijuana was reserved exclusively to the state of Florida.30 However, F.S. §381.986(8)(b) (2016) provided local governments with the authority to regulate 1) the quantity and geographical location of MMTCs; and 2) other nonconflicting, permitting requirements.

“A municipality may determine by ordinance the criteria for the number and location of, and other permitting requirements that do not conflict with state law or department rule for, dispensing facilities of dispensing organizations located within its municipal boundaries. A county may determine by ordinance the criteria for the number, location, and other permitting requirements that do not conflict with state law or department rule for all dispensing facilities of dispensing organizations located within the unincorporated areas of that county.”31

Counties were created by the Florida Constitution.32 Counties can neither perform any acts inconsistent with law not in the common interest of the people of the county, nor exercise their home-rule power in a manner specifically prohibited by law.33 Municipalities derive their authority from the Florida Constitution.34 Municipalities cannot enact an ordinance expressly prohibited by the Florida Constitution.35 Therefore, prior to Senate Bill 8-A, no county or municipality in Florida could ban MMTCs within its own geographical limits because for an outright ban on medical marijuana is expressly prohibited by Fla. Const. art. X, §29, and is, thus, void ab initio.36

1) Moratoria on MMTCs — Unlike an outright ban, a moratorium arguably would not violate art. X, §29, provided it is less than one year in length.37 A moratorium is “an authorized postponement…in the deadline for…performing an obligation.”38

Proponents of moratoria cite to F.S. §381.986(8)(b) (2016), as expressly authorizing their use.39 In fact, several towns and cities in the state of Florida40 have already placed a moratorium on the distribution of medical marijuana.41 Additionally, many counties in the state of Florida have placed a moratorium on the distribution of medical marijuana.42

While a moratorium ordinance on MMTCs within the geographical limits of a county, municipality, or town would not be a per se direct violation of the Florida Constitution, in particular, art. X, §29, proponents of MMTCs cite to the canon of statutory interpretation expressio unius est exclusio alterius, a Latin phrase meaning “the expression of one thing implies the exclusion of another,” to support their argument that the two cannot coexist.43 This argument requires a closer examination.

Fla. Const. art. X, §29 expressly states: 1) Medical marijuana shall be legal and neither a physician prescribing nor a patient taking it shall be subject to criminal or civil liability provided they adhere to the requirements thereof;44 2) nothing in that section of the Florida Constitution allows for a violation of any law other than for conduct in compliance with the provisions of this section”;45 and 3) “Legislation. Nothing in this section shall limit the legislature for enacting laws consistent with this section.”46 On its face, the Florida Constitution has been amended to expressly permit medical marijuana to be dispensed throughout all 67 counties and 410 municipalities and towns within the parameters of art. X, §29.

Employing basic principles of logic, would not any local government legislation (i.e., ordinance) providing for a moratorium on MMTCs within its geographical limits be violating F.S. §§125.01(1)(w) or 166.021(3)(b) (2016), by using its home rule powers to pass legislation inconsistent with art. X, §29? Stated differently, would not a local government ordinance that is inconsistent with art. X, §29(e) be thereby expressly prohibited by the Florida Constitution and, therefore, void ab initio per §§125.01(1)(w) or 166.021(3)(b)? Additionally, would not any MMTC seeking to open its doors in a local government with a moratorium ordinance be considered violating a law (i.e., the local government moratorium ordinance) while at the same time adhering to the Florida Constitution, the very dilemma already considered and resolved in the dispensary’s favor per art. X, §29(c)(1), thus, making the local ordinance invalid per §§125.01(1)(w) or 166.021(3)(b)?

What happens if every local government in Florida (all 410 towns and municipalities and 67 counties) were to enact a moratorium so that medical marijuana could not be dispensed anywhere in Florida, which, though unlikely to happen, is a theoretical possibility? How can one argue that art. X, §29 has not been violated in such a circumstance? The answers to all of these questions points resoundingly in favor of MMTCs operating throughout all of Florida without restriction on their ability to operate, but with proper growth management regulations to be discussed in the next subsection.

2) Regulating MMTCs Through Local Government’s Growth Management Department — Many jurisdictions embraced the reality that medical marijuana is here to stay and are being proactive, not reactive.47 These jurisdictions established by ordinance how many MMTCs will be allowed to operate and where those MMTCs will be located within their geographical limits in a time-consuming, collaborative effort involving both their police and growth management departments.48 In fact, numerous towns or cities in the state of Florida have already enacted an ordinance authorizing the sale and distribution of medical marijuana.49 Additionally, many counties in the state have passed an ordinance authorizing the sale and distribution of medical marijuana.50

The reasons for enacting an ordinance regulating MMTCs, per F.S. §381.986(8)(b), (2016) were elucidated in the “whereas” clauses of Palm Bay Ordinance No. 2017-33: 1) Comprehensive state licensing and regulatory framework directs that the criteria for the number and location of, and other permitting requirements (not in conflict with state law or department rule) for MMTCs may be determined by local ordinance; 2) potential adverse health effects on the health, safety, and welfare of residents and local businesses from secondary effects associated with the distribution of medical marijuana exist, including (but not limited to) offensive odors, increased crime such as theft, robberies, and trespassing (accentuated because MMTCs must operate on a cash basis due to difficulty in obtaining banking services51), fire hazards, and nuisances; 3) an overabundance of MMTCs can affect the viability of such facilities, resulting in compliance issues and increased regulatory costs, leading to the improper diversion of products; and 4) reasonable and effective regulatory, enforcement systems reduce or avoid threats.

3) Benefits vs. Detriments of Local Regulation — Why would a county or municipality enact a F.S. §381.986(8)(b) (2016) ordinance? There are several reasons. First, if your town, city, or county did not enact such an ordinance, any subsequently determined offensive MMTCs that opened their doors in that community after statewide administrative and regulatory implementation of Fla. Const. art. X, §29, but before passage of a local regulatory ordinance, would have been grandfathered into whatever ordinance(s) that city council or county commission later enacted. Any ex post facto law that attempts to limit, punish, deter, or otherwise prohibit their operations would likely be deemed unconstitutional by a court of law.52 Second, in addition to the aforementioned benefits in this article, there were numerous additional benefits to having a medical marijuana regulatory ordinance: 1) regulation of which entities can operate each MMTC in your jurisdiction; 2) taking care of your constituents who need this medicine; 3) regulating the location of each MMTC so as to keep each at a safe and reasonable distance from churches and other places of worship, schools, daycare centers, etc.; 4) regulation of signage employed by each MMTC; 5) increased revenue through taxes and fees; and 6) job creation. Finally, if the state of Florida elects to permit recreational marijuana in the future, your elected body could amend the ordinance to keep the dispensaries where they are located in your city or county to insure they operate within the already-prescribed parameters.

Impact of Senate Bill 8-A upon Counties and Municipalities
Unfortunately, local regulation of medical marijuana was almost entirely preempted on Friday, June 23, 2017, when Gov. Rick Scott signed into law Senate Bill 8-A, which substantially amended, inter alia, F.S. §381.986.53 In particular, F.S. §381.986(11)(2017) preempted to the state of Florida regulation of cultivation, processing, and delivery of marijuana by MMTCs.

Per F.S. §381.986(11)(b)1 (2017), a county or municipality may now ban by ordinance MMTC dispensing facilities within its geographical boundaries, which is great news to all of the cities and counties that enacted moratoria on MMTC dispensing facilities. Because this statute’s substantial amendment is so fresh, however, the constitutionality of an outright ban on MMTCs has yet to be litigated. Considering this portion of §381.986 is arguably inconsistent with Fla. Const. art. X, § 29(e) and only permits the Florida Legislature to enact legislation consistent with its provisions, there is a strong basis for the Florida Supreme Court to strike that portion of the amendment, at a subsequent time, if this matter is litigated.

On the other hand, if a county or municipality elects not to ban MMTC dispensing facilities within its geographical limits, F.S. §381.986(11)(b)1 (2017) prohibits that county or municipality from placing specific limits on the number of MMTC dispensing facilities within its geographical boundaries. Hence, this legislation is black and white, take-it-or-leave-it, all-or-nothing, with no common-sense moderation, which would ordinarily arise through home-rule powers previously bestowed upon local governments — a tremendous defect in this new law.

While a county or municipality may determine by ordinance the criteria for the location of MMTC dispensing facilities (and other permitting requirements) consistent with Florida law or rules of the Florida Department of Health, the ordinance cannot be more restrictive than ordinances already in place in that county or municipality for permitting or determining the location of pharmacies licensed under F.S. Ch. 465 (2017).54 If your county or municipality, like Palm Bay, does not already have an ordinance in place for permitting or determining the location of licensed pharmacies, and your county or municipality would like to have MMTC dispensing facilities for the benefit of your constituents, there are two choices. First, your local government can enact an ordinance permitting or determining the location of licensed pharmacies and subsequently enact two ordinances: 1) an ordinance permitting MMTC dispensing facilities within the geographical limits of your county or city; and 2) another subsequent ordinance establishing criteria for the location of MMTC dispensing facilities (and other permitting requirements) consistent with the licensed pharmacy ordinance. Alternatively, your city or county may enact an ordinance permitting MMTC dispensing facilities within the geographical limits of your county or city without ever addressing the location thereof.

Location of MMTC dispensing facilities is addressed in this new law. An MMTC dispensing facility may not be located within 500 feet of a public or private elementary, middle, or secondary school, unless the county or municipality approve the location through a formal proceeding at a public meeting (e.g., a variance approved in a quasi-judicial hearing at a regular commission/council meeting by the county commission/city council) at which the county commission/city council determines the closer location promotes the public health, safety, and general welfare of the community.55 Nothing in subsection 11 prohibits a county or municipality from ensuring an MMTC dispensing facility complies with the Florida Building Code, the Florida Fire Prevention Code, or any local amendments to the Florida Building Code or Florida Fire Prevention Code.56

Conclusion
This area of the law, regulation of medical marijuana, is entirely new. The Florida Legislature’s attempts to establish some sort of regulation is laudable. However, the government closest to the people is most equipped to address the health, safety, and general welfare of its constituents. For that reason, Senate Bill 8-A’s preemption, as codified in F.S. §381.986(11) (2017), is a gigantic step in the wrong direction. Hopefully the Florida Legislature will revisit this area of the law in its next legislative session and restore home-rule powers to local governments previously enjoyed before this substantial amendment. Until then, your local government has two choices: Ban MMTCs entirely or get used to seeing them everywhere.


1 See ProCon.org, Historical Timeline: History of Marijuana as Medicine — 2900 BC to Present, http://medicalmarijuana.procon.org/view.timeline.php?timelineID=000026.

2 See Altmed.co, The Science of Medical Cannabis, www.altmed.co/doctors/history-medical-cannabis/.

3 See ProCon.org, 29 Legal Medical Marijuana States and DC, http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881; see also Wikipedia.com, Medical Cannabis in the United States, https://en.wikipedia.org/wiki/Medical_cannabis_in_the_United_States.

4 See Jennifer Welsh & Kevin Loria, 23 Health Benefits of Marijuana, Business Insider (Apr. 20, 2014), http://www.businessinsider.com/health-benefits-of-medical-marijuana-2014-4/#it-can-be-used-to-treat-glaucoma-1.

5 See Laurel Thomas Gnagey, Medical Marijuana Reduces Use of Opioid Pain Meds, Decreases Risk for Some with Chronic Pain, Michigan News (University of Michigan March 22, 2016), available at http://ns.umich.edu/new/releases/23622-medical-marijuana-reduces-use-of-opioid-pain-meds-decreases-risk-for-some-with-chronic-pain.

6 26 U.S.C. §4741 (1964); The Marihuana Tax Act of 1937, available at http://www.druglibrary.org/schaffer/hemp/taxact/mjtaxact.htm.

7 26 U.S.C. §4741, §7(a) (1964).

8 Leary v. United States, 395 U.S. 6, 21 (1969), aff’d, 544 F.2d 1266 (5th Cir. 1977).

9 See Boggs Act, 65 Stat. 767 (1951), repealed by The Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236 (1970); Narcotic Control Act of 1956, 70 Stat. 567 (1956).

10 See Leary, 395 U.S. at 12.

11 Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236 (1970).

12 Controlled Substances Act §812(c)(10) (1970) (Marihuana listed under Schedule 1 Hallucinogenic Substances).

13 See Gonzales v. Raich, 545 U.S. 1, 14 (2005).

14 Drug Abuse: Marihuana: A Signal of Misunderstanding: First Report of the National Commission on Marihuana and Drug Abuse, Washington, D.C., Gov’t. Printing Office, 1972, available at http://www.druglibrary.org/schaffer/library/studies/nc/ncmenu.htm.

15 The Daily Wash. L. Rep. (Dec. 28, 1976), available at http://www.drugpolicy.org/docUploads/randall.pdf.

16 See id.

17 See 1 Uelmen and Haddox, Limitation of the Medical Necessity Defense, Drug Abuse and the Law Sourcebook at §3:86.

18 See id.; see 104 Daily Wash L. Rep. 2249 (Super. Ct. D.C. Nov. 24, 1976).

19 See Denali Healthcare, Federal Cannabis Patients, Compassionate Investigational New Drug program, http://www.denalihealthcaremi.com/federal-cannabis-patients/.

20 See id.

21 See id.

22 See id.

23 Uelmen & Haddox, Limitation of the Medical Necessity Defense, Drug Abuse and the Law Sourcebook at §3:86. See also Craig Patrick, FOX 13, Two Floridians Get Free Marijuana for Life — from the Feds (Nov. 2, 2015), available at http://www.fox13news.com/news/fox-13-investigates/43408493-story.

24 James Cole, Guidance Regarding Medical Marijuana Enforcement (2013).

25 Pub. L. 113-79, Tit. VII, §7606, Feb. 7, 2014, 128 Stat. 912; Pub. L. 114–95, title IX, §9215(f), Dec. 10, 2015, 129 Stat. 2166.

26 See Fla. Laws §2, Ch. 2014-157, 2014.

27 See Fla. Stat. §381.986(2) (2014).

28 See Alexandra Zavis, Florida to Become First Southern State with a Full-Scale Medical Marijuana Program, L.A. Times, Nov. 8, 2016, available at http://www.latimes.com/nation/politics/trailguide/la-na-election-day-2016-florida-medical-marijuana-1478657609-htmlstory.html.

29 See Fla. Const. art. X, §29(b)(5) (“‘Medical marijuana treatment center’ (MMTC) means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the [d]epartment.”).

30 Fla. Stat. §381.986(8)(a) (2016).

31 Fla. Stat. §381.986(8)(b) (2016) (emphasis added).

32 See Fla. Const. art. VIII, §1(a) (“Political Subdivisions. The state shall be divided by law into political subdivisions called counties. Counties may be created, abolished, or changed by law, with provision for payment or apportionment of the public debt.”).

33 See Fla. Stat. §125.01(1)(w) (2016).

34 See Fla. Const. art. VIII, §2(a) (“Establishment. Municipalities may be established or abolished and their charters amended pursuant to general or special law. When any municipality is abolished, provision shall be made for the protection of its creditors.”).

35 See Fla. Stat. §166.021(3)(b) (2016).

36 But see Plantation, Fla., Code of Ordinances art. XVI, div. 1, §27.90; div. 2, §27.901-903; div. 3, §27.907; div. 4, §27.909-910; §27.915-917 (2014).

37 See Fla. Stat. §70.001(3)(e)2 (2016) (“However, a temporary impact on development, as defined in s. 380.04, that is in effect for longer than [one] year may, depending upon the circumstances, constitute an “inordinate burden” as provided in this paragraph.”) (emphasis added).

38 Moratorium, Black’s Law Dictionary (10th ed. 2014).

39 See, e.g., Okaloosa County Code of Ordinances, Ordinance No. 17-01 (Jan. 17, 2017).

40 The Palm Bay City Attorney’s Office surveyed the largest 30 cities, by population, and all counties in the state of Florida. As to the remaining jurisdictions, the information contained herein does not address those areas. You will have to consult either www.municode.com or www.amlegal.com to determine whether a jurisdiction not specified herein either permits or conversely bans the distribution of medical marijuana or, in the alternative, has yet to address this subject matter legislatively.

41 See Clearwater, Fla., Ordinance No. 8995-17 (Feb. 2, 2017); Melbourne, Fla., Ordinance No. 2016-72 (Nov. 22, 2016); Palm Coast, Fla., Ordinance No. 2017-2 (Feb. 7, 2017); Pompano Beach, Fla., Ordinance No. 2017-06 (Nov. 8, 2016); Tallahassee, Fla., Ordinance No. 16-0-33AA (Jan. 25, 2017). Please note that some of the citations referenced herein have not yet been codified per www.amlegal.com and www.municode.com. Hence, any citation to an ordinance number is subject to change.

42 See Bradford Cty., Fla., Ordinance No. 2017-02 (Mar. 6, 2017); Charlotte Cty., Fla., Ordinance No. 2016-036 (Oct. 26, 2016); Clay Cty., Fla., Ordinance No. 2017-6 (Jan. 24, 2017); Flagler Cty., Fla., Ordinance No. 2016-09 (Dec. 20, 2016); Franklin Cty., Fla., Ordinance No. 2017-01 (Jan. 7, 2017); Hamilton Cty., Fla., Ordinance No. 2016-07 (Nov. 1, 2016); Highlands Cty., Fla., Ordinance No. 16-17-04 (Jan. 3, 2017); Jackson Cty., Fla., Ordinance No. 17-03 (Feb. 28, 2017); Lake Cty., Fla., Code of Ordinances, ch. 3, art. 1X, §3-65-66 (2016); Levy Cty., Fla., Ordinance No. 2017-002 (Feb. 08, 2017); Madison Cty., Fla., Ordinance No. 2017-228 (Feb. 22, 2017); Manatee Cty., Fla., Ordinance No. 2016-49 (Dec. 13, 2016); Marion Cty., Fla., Ordinance No. 2016-40 (Nov. 15, 2016); Miami-Dade Cty., Fla., Ordinance No. 2016-67 (July 06, 2016); Nassau Cty., Fla., Ordinance No. 2016-15 (Dec. 21, 2016); Okaloosa Cty., Fla., Ordinance No. 17-01 (Jan. 17, 2017); Orange County, Fla., Code Ch. 38, art. 1V, §38-80 (2016); Palm Beach Cty., Fla., Ordinance No. 2017-009 (Mar. 2, 2017); Pinellas Cty., Ordinance No. 17-05 (Jan. 24, 2017); Pasco Cty., Ordinance No. 16-43 (Dec. 19, 2016); Polk Cty., Fla., Ordinance No. 17-001 (Jan. 17, 2016); Putnam Cty., Fla., Ordinance No. 2016-22 (Nov. 8, 2016); St. Lucie Cty., Fla., Ordinance No. 17-002 (Mar. 7, 2017); Washington Cty., Fla., Ordinance No. 2017-01 (Jan. 2, 2017).

43 See Black’s Law Dictionary (10th ed. 2014).

44 See Fla. Const. art. X, §29(a)(1)-(2).

45 See Fla. Const. art. X, §29(c)(1).

46 See Fla. Const. art. X, §29(e).

47 See, e.g., Lisa J. Huriash, Parkland Gives Initial OK to Law Regulating Marijuana Dispensaries, Sun Sentinel, Dec. 22, 2016, available at http://www.sun-sentinel.com/local/broward/fl-parkland-marijuana-dispensaries-20161221-story.html.

48 See, e.g., Zack Murdock, Where Should City Put Pot Dispensaries?, Sarasota Herald-Tribune, Mar. 6, 2017, available at http://www.heraldtribune.com/news/20170306/where-should-city-put-pot-dispensaries.

49 See Deltona, Fla., Code of Ordinances art. XIV, §110.1400-1402 (2014); Gainesville, Fla., Land Development Code, art. II, Ch. 30, §30-23, art. IV, div. 3, §30-59, div. 4, §30-61, §30-64-66, div. 6, §30-78, Ordinance No. 150395 (November 19, 2015); Miramar, Fla., Code of Ordinances Ch. 8, art. 11, §11-180 – 184; Ch. 13, §13-16; Land Development Code Ch. 2, §201 (2014).

50 See Alachua Cty., Fla., Unified Land Development Code Tit. 40, Ch. 404, art. IX, §404.45, Unified Land Development Code Tit. 40, Ch. 404, art. II, §404.08.5, Unified Land Development Code Tit. 40, Ch. 410, art. III; Baker Cty., Fla., Ordinance No. 2017-01 (Feb. 7, 2017); Bay Cty., Fla., Ordinance No. 2016-38 (Dec. 20, 2016); Calhoun Cty., Fla., Ordinance No. 2017-01 (Jan. 2, 2017); Citrus Cty., Fla., (Ordinance No. 2016-A25 (Oct. 11, 2016); Columbia Cty., Fla., Ordinance No. 2016-31 (Dec. 1, 2016); DeSoto Cty., Fla., Ordinance No. 2016-21 (Dec. 13, 2016); Dixie Cty., Fla., Ordinance No. 2016-13 (Dec. 15, 2016); Escambia Cty., Fla., Ordinance No. 2017-5 (Jan. 5, 2017); Glades Cty., Fla., Ordinance No. 2016-18 (Oct. 24, 2016); Hernando Cty., Fla., Ch. 18, art. VII, §18.165-18.178 (2016) and app. A art. III, §5 (2016); Hillsborough Cty., Fla., Ordinance No. 17-6 (Mar. 7, 2017) and Ordinance No. 17-7 (Mar. 13, 2017); Indian River Cty., Fla., Land Development Regulations Tit. IX, ch. 971, §971.13, §901.03 (2016) and Police Power Ordinances Tit. III, Ch. 315, §315.01 (2011) and §315.02-315.04 (2016); Monroe Cty., Fla., Ordinance No. 047-2017 (Feb. 15, 2017); Osceola Cty., Fla., Code of Ordinances Ch. 14, art. IX, §14-160-178 (2016); Sarasota Cty., Fla., Code of Ordinances Appendix A, art. 5, §5.3 (2017) and Appendix A, art. 10, §10.2 (2016); Sumter Cty., Fla., Ordinance No. 2017-01 (Jan. 10, 2017).

51 See, e.g., Sophie Quinton, Why Marijuana Businesses Still Can’t Get Bank Accounts, The Pew Charitable Trusts, Stateline (March 22, 2016), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/03/22/why-marijuana-businesses-still-cant-get-bank-accounts.

52 See Dugger v. Williams, 593 So. 2d 180, 181 (Fla. 1991) (“In Florida, a law or its equivalent violates the prohibition against ex post facto laws if two conditions are met: (a) it is retrospective in effect; and (b) it diminishes a substantial substantive right the party would have enjoyed under the law existing at the time of the alleged offense.”).

53 See, e.g., Michael Auslen, Governor Scott Signs Medical Marijuana Expansion Into Law, Miami Herald, June 23, 2017, available at http://www.miamiherald.com/news/health-care/article157958724.html.

54 See Fla. Stat. §381.986(11)(b)2 (2017).

55 See Fla. Stat. §381.986(11)(c) (2017).

56 See Fla. Stat. §381.986(11)(d) (2017).


Patricia D. Smith is the deputy city attorney of the City of Palm Bay. She is one of only two attorneys in the state of Florida board certified by The Florida Bar in both state and federal government and administrative practice, and city, county, and local government law.

Andrew P. Lannon is the city attorney of the City of Palm Bay. He is one of only two attorneys in the state of Florida board certified by The Florida Bar in both business litigation and city, county, and local government law.

This article would not have been possible without the contributions of the following members of the Palm Bay City Attorney’s Office: Peter J. Sweeney, Jr., Jill E. Jacobs, Rodney A. Edwards, Debra A. Hunt, Yolanda Ayala, and Shelsea Martin.

This column is submitted on behalf of the City, County and Local Government Law Section, Robert Teitler, chair, and David Miller, editor.

[Revised: 10-26-2017]