With Commissioners Caragiulo, Detert and Hines in the majority, county ordinance banning sale and cultivation of recreational marijuana fails

Commissioners learn that their medical marijuana regulations violate federal law, though staff admitted to being unaware of that before speakers brought it up at the hearing

The County Commission sits in session on Aug. 29. Rachel Hackney photo

After learning from public speakers that the Sarasota County medical marijuana ordinance, dating to 2014, violates federal law in regard to certain of its provisions, and then debating whether they should even act on something that is not a pressing issue, the county commissioners voted against passage of a new ordinance that would ban the sale, cultivation and processing of recreational marijuana in the county.

Commissioners Paul Caraguilo, Nancy Detert and Charles Hines voted against approval of the new regulations. Commissioner Alan Maio joined Commissioner Michael Moran — who won approval earlier this year to direct staff to draft the ordinance — in voting in favor of it.

During an Oct. 10 public hearing that took close to three-and-a-half hours, the board members learned from speakers that their medical marijuana ordinance violates Section 7606 of the U.S. Agricultural Act of 2014, which legalizes industrial hemp research and production of an oil from cannabis referred to as “CBD.”

Tom Polk, the county’s impact fees administrator who was charged years ago also to be the county’s point person on marijuana issues, acknowledged that the county’s medical marijuana regulations violate part of the U.S. Farm Bill approved in 2014. However, he said, staff had not been enforcing that part of the county law.

“We’re in conflict with a federal act?” Detert asked.

Impact Fees Administrator Tom Polk. File photo

“Unbeknownst to us until it was brought to our attention today,” Polk replied, “we do see a conflict with the draft [ordinance] that we currently have.”

The recreational marijuana ordinance the board was considering that day would be an amendment to the county’s medical marijuana ordinance, which was approved in 2014. Zoning Administrator Donna Thompson pointed that out at the start of the Oct. 10 public hearing.

The commissioners held their first hearing on the proposed new regulations on Aug. 29.

The recreational marijuana ordinance was drafted at Moran’s request. During earlier discussions, Moran and others expressed hope that if recreational marijuana is legalized in Florida, the Legislature would not pre-empt local government regulations already in place. That was the case with the county’s medical marijuana ordinance, which is stricter than the state regulations.

Nonetheless, County Attorney Stephen DeMarsh had cautioned them that the wording of a Florida constitutional amendment could make it impossible for the Legislature to let existing local government regulations on recreational marijuana stay in place.

During the Oct. 10 discussion, Commissioner Maio said he had wondered why people were talking about a medical marijuana issue in the context of the proposed regulations on recreational marijuana. Referring to earlier speakers, Maio asked Polk, “They were right in that this new rule, if passed, would fly in the face of current federal regulations?”

Polk reiterated his earlier point — that staff had learned earlier that day that the ordinance, as written, is in conflict with state and federal laws.

Polk stressed that ordinances related to marijuana use throughout the nation “are constantly changing, trying to keep up with this industry.” He called the pace “very challenging.”

The city of Denver, Polk continued, “has changed their regulating ordinances close to 30 times over the last four or five years.”

When the commissioners debated whether to continue the hearing to allow staff time to amend the proposed recreational marijuana ordinance to reflect federal law, they reached the consensus that they would allow the remaining members of the public who wished to address them to do so.

By count of The Sarasota News Leader, 28 people addressed the board, many of them present because of the CBD issue. One told the board that information about the hearing went out on Facebook to people who own businesses that sell the oil.

How best to proceed

County Attorney Stephen DeMarsh. File photo

At the conclusion of the public comments, Chair Detert asked County Attorney DeMarsh how to proceed, since the speakers had identified flaws in the proposed regulations.

“It is possible that you could pass the ordinance and then tell the [county] administrator and staff to come back with an amending ordinance in the future,” DeMarsh began. “Alternatively, you could continue the matter to have those changes catch up, back to you,” he said. The board also had the option of declining to adopt the ordinance, DeMarsh pointed out.

Then Detert looked to Moran and asked what he wanted to do. Moran made a motion to find the proposed ordinance consistent with the county’s Comprehensive Plan, the first step in approving the measure on second reading.

“I don’t think we need to get down into the DNA profile of the different [marijuana] plants that were discussed here today,” Moran said, “to get a simple ordinance, making it clear to Tallahassee and other regulatory authorities that recreational marijuana is not welcome in Sarasota County.”

Referencing Polk’s comments, Moran added, “This could be a continuous issue with this board and any boards going forward, to keep up [with state and federal regulations regarding recreational marijuana]. What’s before us today is a clear message and a clear ordinance.”

“How does this look if this does unfold in 2020?” Caragiulo asked, referring to the potential for a state constitutional amendment passing that would legalize recreational marijuana, especially if the majority of Sarasota voters approve such an amendment.

“My fear is that we’re out ahead of what people think,” Caragiulo added. “Are we protecting the electorate from themselves?”

Early on during the discussion, Caragiulo had voiced concern about approving an ordinance that might “run in the face … [of] what the electorate decides,” adding, “Are we really that afraid of our electorate?”

The very first speaker during the public hearing — Louis Costello of Sarasota — pointed out, “Nationwide, [the number of people who support legalization of recreational marijuana is] standing at 62% now. It’s just a matter of time. … It really goes back to the will of the people.”

A Florida constitutional amendment is expected on the 2020 General Election ballot, Costello added. “Where does this leave us,” Costello asked, if the state amendment passes and the County Commission has made “a pre-emptive strike. … Do you guys honestly feel … that we shouldn’t have this?”

Commissioner Paul Caragiulo. File photo

Caragiulo suggested that he could support the proposed county ordinance if it had some provision within it that would make it void if the majority of Sarasota County voters approved a state constitutional amendment legalizing recreational marijuana.

However, when Moran offered to consider changing language in the proposed ordinance to assuage concerns of his colleagues, no one responded.

Referring to the number of public speakers that day, Commissioner Hines said, “This is exactly what I wanted to happen.” During the first public hearing on the ordinance, on Aug. 29, he made the statement that he hoped for bigger turnout for the second reading, so the board members would have a better understanding of the public’s views of the proposed new regulations.

Perhaps it would have been better if the commissioners had held a workshop first to iron out all the issues that came up on Oct. 10, Hines continued.

“I’m not going to support the motion as presented,” he added, “because I still think there are some more things for us to think through …”

For example, Hines said, one of his biggest concerns is that the proposed ordinance does not make clear what “commercial” cultivation is. He has no problem with the idea of a resident growing marijuana for personal use, he added. “We haven’t gotten into that type of distinction.”

“I’m not willing to vote for something that we’re going to fix later, and needs to be fixed,” Chair Detert said.

She also agreed with public comments that the board should reach out more to the community. If the commissioners had talked with the business owners who sold CBD, she continued, “We could have saved ourselves a little bit of embarrassment …”

“Bless you for pointing it out,” Detert told Rach Quinn, who first brought up the CBD issue. “It’s not our intention to be wrong.”

This webpage of the U.S. Department of Agriculture explains facets of the 2014 Farm Bill.

“This is not a complex issue,” Moran pointed out. All the ordinance does, he insisted, is prohibit the sale, cultivation and processing of recreational marijuana in Sarasota County. “We can play word chess all day long.”

Maio also thanked Quinn for bringing up the CBD issue. “I am shocked at the amount of people out there with the dispensaries and the businesses,” he added.

Still, while he acknowledged that state legalization of recreational marijuana might occur in the future, Maio said he supported the proposed county regulations.

The federal conflict

Rach Quinn of Sarasota was among the first group of speakers to address the board on Oct. 10. She explained that she uses CBD oil  — which does not have THC, the psychotropic chemical in marijuana — to treat Crohn’s disease. It had proven the only medication effective for her, she said, of the many she had tried.

“Nobody’s here to take it away,” Detert told her.

Before the commissioners took a 30-minute lunch break, Caragiulo asked County Attorney DeMarsh whether the new ordinance would prohibit the use of CBD. DeMarsh said he believed the county’s current medical marijuana ordinance does not allow the oil, and he did not believe the proposed recreational marijuana ordinance included any change from that.

Caragiulo asked for more information about the issue.

Scheril Murray Powell. Image from the website of the Florida Medical Cannabis Conference & Exhibition

Following the lunch break, the second speaker, Scheril Murray Powell, an attorney who works with the American Civil Liberties Union, also raised the legality issues. Powell serves on an international standards board for cannabis, she explained, and she has done consulting work across the country and in other countries. She told the commissioners that she had been able to speak with DeMarsh during the break.

Powell pointed to the definition of cannabis in the county regulations. “There has been a clear distinction made at the federal level,” she continued, between hemp — and products derived from it, including CBD oil — and other types of cannabis.

Additionally, Powell noted, the U.S. Drug Enforcement Administration issued a directive on May 22, based on a 2004 ruling by the U.S. Court of Appeals for the Ninth Circuit, which enjoined the DEA from enforcing certain regulations with respect to THC.

The federal government did not seek a Supreme Court review of the decision, according to a statement on the website of the DEA’s Diversion Control Division.

The directive says, “Products and materials that are made from the cannabis plant and which fall outside the [Controlled Substances Act] CSA definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations. The mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.”

After one more speaker pleaded with the board not to outlaw CBD with the new ordinance, Polk addressed the situation with the commissioners, at DeMarsh’s recommendation.

When county staff was wrapping up work on the 2014 ordinance regarding medical marijuana, Polk said, that was about the same time the 2014 federal Farm Bill was being completed. The distinctions regarding hemp in that law were overlooked, he indicated.