2014 ordinance does give County Commission latitude to regulate location of medical marijuana dispensaries, county attorney says

Stephen DeMarsh offers options for changing county’s handling of those businesses

The County Commission has approved this binding site plan for the AltMed dispensary in the Cobia Bay shopping center on Fruitville Road in Sarasota. Image courtesy Sarasota County

Following back-to-back votes in April that approved two medical marijuana dispensaries in the unincorporated areas of Sarasota County, commissioners began fretting that they might be inundated with applications for such facilities.

Do they have the latitude to tighten the ordinance a previous County Commission approved in 2014 to regulate such businesses? they asked Deputy County Attorney Alan Roddy on April 11.

After some discussion, they requested that the Office of the County Attorney research the issue and report back to them.

In a May 3 memorandum, County Attorney Stephen DeMarsh offered options regarding medical marijuana dispensaries, as well as the cultivation, processing and dispensing of recreational marijuana — if the State of Florida law progresses to the point where the latter actions become legal.

The County Commission could maintain its existing system of approving medical marijuana dispensaries by special exception, DeMarsh wrote; it could ban all such dispensaries in the county, with the option of treating those approved in April as nonconforming businesses; or it could treat dispensaries like pharmacies, as provided under the new state law.

DeMarsh did caution that “some advocates have argued” that banning dispensaries outright would be unconstitutional under the provisions of Amendment 2, which voters approved in 2016 to legalize medical marijuana.

DeMarsh noted during the May 8 County Commission meeting that the memo summarizing the research had been provided to the board. No commissioner commented on the report at that time. However, Commissioner Michael Moran has asked for a discussion on it during the Board Reports segment of the May 22 meeting.

County Attorney Stephen DeMarsh. File photo

The County Commission has not taken any action on its 2014 ordinance since the passage of the state law governing medical marijuana treatment centers, DeMarsh added in the memo. The rationale behind that, he indicated, is that the state law “grandfathered” existing local government ordinances on such operations. The state law makes it impossible for a county or municipality to “place specific limits, by ordinance, on the number of dispensing facilities that may locate within that county or municipality,” he wrote. The only alternative is for the local government to ban medical marijuana treatment centers or dispensing facilities within its boundaries, he pointed out.

“Because Sarasota County had an ordinance in place before the [state law] went into effect,” he explained, “the County has taken the position” that it can determine the location of dispensaries.

The 2014 county ordinance that regulates the cultivation, processing and/or dispensing of medical marijuana — upon approval of a location under the special exception guidelines — specifies the zoning districts where such operations are allowed, DeMarsh explained.

The county ordinance, he wrote, “provides for dispensaries within Office, Professional, and Institutional (OPI) and Commercial General (CG) zoning districts through a special exception. If the board were to adopt a new ordinance treating dispensaries like pharmacies — as the City of Sarasota did earlier this year — DeMarsh noted that the County Code allows pharmacies in the Commercial General, Commercial Intensive, Commercial Neighborhood, and Industrial Light Manufacturing Warehousing (ILW) zoning districts.

Under the state law, DeMarsh noted, a medical marijuana treatment center (MMTC) must handle the cultivation, processing and dispensing of marijuana products. Each MMTC may have separate facilities for those operations, he added.

“There is an argument that local jurisdictions cannot regulate the location of cultivation and processing facilities [for medical marijuana],” he wrote, but that they “may determine the location of the dispensaries.”

“Bolstering this argument,” he added, “is language in Florida Administrative Rule 64-4.002(2)(c)3., which requires an applicant who wishes to become a dispensing organization to demonstrate the ability to obtain zoning approval.”

A graphic shows the location of the planned Trulieve dispensary in Venice. Image courtesy Sarasota County

No judicial cases have interpreted that language, DeMarsh pointed out. “Many local governments have decided not to regulate cultivation or processing facilities,” he added, except to ensure their compliance with the Florida Building Code and the Florida Fire Prevention Code.

The state law does say that a medical marijuana treatment center or cultivating or processing facility cannot be located within 500 feet of a public or private elementary, middle or secondary school, he pointed out in the memo.

Recreational marijuana regulation

As for recreational marijuana: “[T]here is no state preemption if the Board wishes to prohibit or regulate recreational marijuana cultivation, processing, or dispensaries,” DeMarsh noted. “Although the State of Florida could later preempt such local regulation,” he wrote, the commission could change the County Code to address the concern that medical marijuana treatment centers (MMTCs) might want to open medical marijuana dispensaries because they would have an advantage with those existing businesses “should recreational use be approved later.”

The commission “could prohibit uses associated with recreational marijuana in all zoning districts or limit recreational marijuana uses to certain zoning districts,” he pointed out.

One option DeMarsh suggested is that the County Commission could amend its zoning regulations to distinguish medical marijuana from recreational marijuana, if it wanted to prohibit or regulate the cultivation of recreational marijuana.

The zoning code, he pointed out, limits cultivation of “Cannabis” to a “Cannabis Farm,” which is allowed only by special exception in the Open Use Agriculture, Open Use Recreation, and Open Use Estate zoning districts. “The definition of ‘Cannabis,’” he added, “does not limit itself to medical marijuana ….”