Board members to work through state association to try to ensure ‘home rule’ can prevail over state regulations
Charlotte County commissioners this week applauded their Sarasota County counterparts for taking action two years ago in preparation for the legalization of medical marijuana.
As Charlotte County Commissioner Chris Constance put it during his board’s Oct. 19 joint meeting with the Sarasota County Commission in Port Charlotte, “We’re trying to define a strategy for [the potential that] Amendment 2 passes, [and] we’ve seen our neighbors to the north have done a good job assessing the situation.”
If 60% of voters mark “Yes” for Amendment 2 on Nov. 8, the state constitution will legalize marijuana “for individuals with specific debilitating diseases or comparable debilitating conditions as determined by a licensed state physician.” The measure also would require the Florida Department of Health to regulate marijuana production and distribution centers and issue identification cards for patients and caregivers.
An Oct. 4 memo prepared by staff for the Sarasota County Commission explains that Amendment 2 “supports the legalization of medical marijuana” for the treatment of individuals with cancer, epilepsy, glaucoma, HIV, Parkinson’s disease and post-traumatic stress disorder, for example.
During the Oct. 19 meeting, Tom Polk, the former director of Sarasota County’s Planning and Development Services Department — now the county’s impact fees administrator — discussed amendments to the county’s pain clinic ordinance that the board approved in 2014 to deal with the state’s “Compassionate Care” marijuana law. The commission’s most important action makes it necessary for any entity to request a special exception to cultivate, process and distribute medical marijuana, he explained.
With Amendment 2, Polk continued, “the main things … are the unknowns … I feel comfortable with what we have.”
Polk told the Charlotte County commissioners, “I would encourage anyone considering these emergency ordinances to consider the processing and the cultivation aspect as much as the distribution.”
Constance cited his concern that the leaders of Charlotte County’s only city, Punta Gorda, could decide to be more lax in their regulations than the county commissioners. “There basically would be a doughnut hole.”
When he asked about cooperation between Sarasota County and its four municipalities, Polk explained that the three that have acted thus far are taking slightly different tacks than the County Commission took, though the City of North Port is working on an ordinance with special exceptions, similar to the county’s 2014 measure. The City of Sarasota on Oct. 17 approved a nine-month moratorium on dispensaries and treatment centers. (See the related story in this issue.)
The Town of Longboat Key, Polk added, is working on a moratorium on dispensaries as well as the growth and production of medical marijuana.
In an Oct. 14 email to the Sarasota city commissioners, City Manager Tom Barwin wrote that he had been advised that the City of Venice is crafting a moratorium that would be similar to the measure the Sarasota city commissioners have approved.
A day earlier, Sarasota City Attorney Robert Fournier pointed out in an email to other city staff members, “We are aware of the following jurisdictions that have enacted moratoria in 2016: Orange County; City of Orlando; Hillsborough County; City of North Lauderdale and the City of Boca Raton. I doubt that this list is exhaustive, as we haven’t had the time to check with every jurisdiction; but it does show that other jurisdictions are taking the same approach.”
‘Home rule’
If Amendment 2 wins voter approval, Polk continued during the Oct. 19 meeting, he recommends local governments focus on uniformity in their regulations. Nonetheless, he said he recognized that differences in approaches would be inevitable. “This is an economic generator,” he added of medical marijuana.
Polk also recommended the boards work through the Florida Association of Counties (FAC) to lobby for “home rule” if Amendment 2 passes and the Florida Legislature in 2017 chooses to craft a law to deal with its provisions.
Since the Sarasota County Commission took its action in 2014, Polk explained, concern has arisen about regulatory preemption provisions held by the state in conjunction with the Compassionate Medical Cannabis Act (CMCA).
The Oct. 4 staff memo says, “Specifically, the CMCA states that ‘All matters regarding the regulation of the cultivation and processing of medical cannabis or low-THC cannabis by dispensing organizations are preempted to the state.’”
The memo adds, “There is an argument that local jurisdictions cannot regulate the location of cultivation and processing facilities, but may determine the number and location [of them]. Another interpretation of the preemption language is that it simply limits local governments from telling dispensing organizations how they cultivate or process medical marijuana, and not the location of these specific uses.”
The memo cites Florida Administrative Rule 64-4.002(2)(c)(3), which, it says, “requires an applicant who wishes to become a dispensing organization to demonstrate the ability to obtain zoning approval.”
Going forward
“We’re just trying to work something out here in very broad strokes,” Constance pointed out. Already, he continued, the board has asked its zoning official to create a map showing locations of churches, schools, residential areas and family centers; marijuana-related operations would be off limits near them.
“I personally think the ideal location would be the Department of Health,” he added. From the standpoints of law enforcement, credibility and access, Constance said, “I think that makes the most sense. If the state was smart enough — and I will say that, smart enough — to take that up as an idea … the state could realize all the sales revenue.”
Then the Florida Department of Health would have a funding stream to subsidize Medicaid, for example, and for providing primary care services, Constance pointed out.
Charlotte County Commission Chair Bill Truex was among board members who cited his frustration with the prospect of marijuana being allowed for medical purposes because marijuana remains a Schedule 1 drug under federal law, making it illegal.
(The U.S. Department of Justice has said it will not enforce the law in regard to use of marijuana by patients and caregivers.) Nonetheless, Truex continued, if Amendment 2 passes, the Charlotte County board needs “to protect those businesses that have major investments in our community.”
Sarasota County Commissioner Charles Hines noted that both he and Constance attended the FAC session in August when representatives from Colorado discussed “all the unintended consequences that have occurred out there” in the wake of the state’s legalization of marijuana for recreational and medicinal use by adults. “It was a wake-up call.”
Other facets of the Sarasota County law
The 2014 amendment to Sarasota County’s pain clinic ordinance specifies the zoning districts where cultivation, processing and dispensing of medical marijuana could be allowed, though only through approval of a special exception, says the Oct. 4 staff memo.
Cultivation would be limited to zones designated Open Use Agriculture, Open Use Recreation and Open Use Estate. A dispensary would be restricted to Office, Professional and Institutional (OPI) and Commercial General districts. Furthermore, any research or processing of medical marijuana would be confined to Industrial Research or Industrial, Light Warehousing districts.
The law also requires all cultivation to be handled indoors without the use of gas products such as carbon dioxide, butane, propane and natural gas. All processing facilities would have to have alarm systems, too.
No drive-through dispensaries would be allowed, and none could be located on the same property with a medical office, pain management clinic, pharmacy or other medical marijuana dispensary. Hours of operation also would be restricted.
Charlotte County Commissioner Ken Doherty complimented the Sarasota County board on the staff report, which had been provided to the Charlotte County commissioners in advance of the Oct. 19 meeting. “I think it’s a good road map for us,” he said.