County commissioners take step closer to seeking staff research into any legal means they could use to keep medical marijuana dispensaries from ‘flipping’ to recreational marijuana sales

Board members vote 4-1 to approve fifth dispensary in the unincorporated part of county

This is an architect’s rendering of the newest medical marijuana dispensary, which the County Commission approved for the property at 3555 Clark Road. Image courtesy Icard Merrill

On Sept. 11, the Sarasota County commissioners inched closer to a formal discussion about steps they might be able to take to pre-empt medical marijuana dispensaries from “flipping” to sales of recreational marijuana, if an amendment to the Florida Constitution or the Legislature makes the latter legal.

As he has in the past, Commissioner Christian Ziegler joined Commissioner Michael Moran in stating a desire “to avoid all of the medical marijuana facilities just overnight flipping from medical to recreational in Sarasota.” Ziegler characterized such a situation as “a totally different experience for the community. … Then you’re going to have a lot of upset citizens.”

Moran talked of a potential “pre-emptive strike” to prevent such flips. He added that his preference would be to find a way to limit the number of medical marijuana dispensaries in the county, as well. “This is a Trojan horse. … We’re going to have 20 of these things in Sarasota County,” and all of them will make the switch to recreational marijuana if the latter is legalized in Florida, he added.

“I want to know from our legal department every single option we have from this board to put a stranglehold” on the potential transition of medical marijuana dispensaries to recreational marijuana shops, Moran said. “I think we need a deeper discussion.”

What prompted the latest board comments was a public hearing on the fifth petition for a Special Exception for a medical marijuana dispensary. This one, submitted by McCrory’s Sunny Hill Nursery LLC, involves property at 3555 Clark Road, just west of the Beneva Road/Clark Road intersection.

(The company does business as GrowHealthy.)

The McCrory’s Sunny Hill Nursery dispensary is planned for the property outlined in red, which is just west of the Beneva/Clark roads intersection. Image courtesy Icard Merrill

Commissioner Alan Maio was the first to raise the issue of the board members’ discomfiture with the potential that the medical marijuana dispensaries it has approved could make the switch to recreational marijuana sales in the future.

“You know I have had heartburn. … Others have had heartburn with every one of these,” Maio told Matthew Brockway of the Sarasota law firm Icard Merrill, who was representing McCrory’s Sunny Hill Nursery during the Sept. 11 public hearing.

“This is No. 5 rolling through,” Maio continued.

Still, Maio acknowledged, “I fully understand that the state rules pre-empt anything but the vote that I’ll give you in a few minutes,” he told Brockway, referring to approval of the new dispensary.

Commissioner Michael Moran, who has voted against every Special Exception petition from a company regarding a medical marijuana dispensary, asked Brockway the same question he has asked representatives of the previous four applicants: “Is your client going to stipulate if the state goes to recreational, that McCrory’s Sunny Hill will not sell recreational?”

“Currently, recreational marijuana sales are prohibited in every zoning district [in the county],” Brockway replied. Depending on how the Florida Legislature crafted rules for sales of recreational marijuana, Brockway continued, McCrory’s likely would have to appear before the County Commission again, if it wanted to transition into recreational marijuana sales.

Matt Brockway. Photo from the Icard Merrill website

“Respectfully,” Brockway added, “we’re going to decline that step,” referring to Moran’s stipulation request. “I don’t believe any of the other [medical marijuana dispensary applicants] have been subject to that stipulation.”

“Appreciate your creative answer,” Moran told Brockway.

Then Commissioner Christian Ziegler asked Assistant County Attorney Joshua Moye if the board members had any options in regard to limiting the number of medical marijuana dispensaries. He has visited other cities, Ziegler pointed out, where a dispensary stands on each corner of an intersection. “It just starts polluting the area,” he said of such a situation.

Moye explained that the state regulations regarding sales of medical marijuana allow a local government to ban the dispensaries altogether or to treat them in the same manner pharmacies are handled, in terms of zoning and similar requirements.

At one point, Commissioner Nancy Detert said she thought the board members had decided “that we didn’t want a high concentration [of the dispensaries] in one area.”

The county regulations do not limit the number of dispensaries that can be approved in a particular area, Moye explained.

In May 2018, then-County Attorney Stephen DeMarsh provided a memorandum to the commissioners about the county’s ordinance governing the dispensaries. He was asked to undertake research into the issue after the board approved the first two medical marijuana facilities in the unincorporated part of the county.

DeMarsh cautioned 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.

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 May 3, 2018 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.

Back to the present and the future

Assistant County Attorney Joshua Moye responds to a question during the Sept. 11 hearing. News Leader image

During the Sept. 11 discussion, Assistant County Attorney Moye reminded the board members that the dispensaries do have to be at least 500 feet apart, according to the applicable county ordinance.

“That’s ridiculous,” Detert responded.

When Ziegler asked about the required distance between a medical marijuana dispensary and a school, Moye said that also is 500 feet.

Moye pointed to other criteria in the Sarasota County ordinance on medical marijuana sales, which was approved prior to the legalization of medical marijuana. “Applicants jump through extra hoops to get that Special Exception.”

“So then it’s up to us to individually police these and decide what we’re going to support or not support?” Ziegler asked.

The commission has to consider all the facets of the application in conjunction with the county regulations, Moye said. If board members find that the applicant does not comply with one or more of those, Moye added, then the board members can point to such findings of fact in denying the Special Exception.

Moye read several of those findings of fact the commissioners must consider, including whether the proposed business is compatible with existing land uses in the same area, as well as whether the proposed use “would or would not be detrimental to the health, safety, morals, order, comfort, convenience or appearance of the neighborhood or other adjacent uses by reason of any one or more of the following: the number, area, location …”

Moran interrupted Moye to ask him to repeat the last one.

Commissioner Michael Moran. File photo

After Moye did so, Moran thanked him.

Commissioner Detert referred to Moran’s efforts “to get people to swear in blood they’re not going to switch” from medical marijuana to recreational marijuana sales.” Having served in both the Florida House and Senate, she noted, her belief is that if the state makes recreational marijuana legal, “we would probably be able to decide if we would [allow such sales in the county].”

She referenced Moye’s comments about cities and counties having the right to decide whether to allow medical marijuana dispensaries within their jurisdictions.

“I’m perfectly happy moving along as we have been with medical marijuana stores such as this,” she added.

Chair Charles Hines asked that the board members proceed with the hearing and then talk about Moran’s desire to have the Office of the County Attorney research steps the board could take in regard to pre-empting recreational marijuana sales.

At the end of the hearing — with no member of the public having signed up to address the Special Exception petition — Maio made the motion to approve the McCrory’s Sunny Hill Nursery request, and Detert seconded it.

Moran then voted “No” when Hines called the question.

However, no further discussion ensued about directing the Office of the County Attorney to draft an ordinance on “flips” from medical to recreational marijuana sales.

The latest dispensary

This is the exterior of the former liquor store. Image courtesy Sarasota County

During the Sept. 11 public hearing, Todd Dary, a manager in the county’s Planning and Development Services Department, explained that the McCrory’s Sunny Hill Nursery application focuses on the property where a liquor store stood, at 3555 Clark Road.

The application says the building encompasses 2,240 square feet.

The parcel is about 0.37 acres, Dary noted.

A Verizon store stands to the east, Brockway, the Icard Merrill attorney, explained, while a Chase bank is to the west.

The land uses on either side of the site are zoned Commercial Intensive, Dary added.

“The proposed dispensary does meet all of the requirements” of the applicable county ordinance, Dary pointed out.

In response to a comment Detert made during Dary’s presentation, Brockway explained, “There are cosmetic and interior improvements proposed for the building.”

Although a liquor store previously occupied the structure, he said, McCrory’s Sunny Hill Nursery plans to redesign the façade to make the building look more like a medical office.

This is the interior of another McCrory’s dispensary. Image courtesy Icard Merrill

A 6-foot-tall concrete wall at the rear of the property will serve as a buffer between the dispensary and a neighborhood to the north, Brockway added.

The access to the property will remain the same, Brockway noted: Patients will be able to use Brooklyn Avenue as well as Clark Road. Access from the latter, he said, would be right-in, right-out only.