In a rare move, the Florida Supreme Court heard additional oral arguments Wednesday on a case to decide whether the state’s medical marijuana licensing scheme is unconstitutional, with questions focusing in large part on whether the system is closed or open.
The case will decide if Florida’s vertically integrated market should be opened to stand-alone business licensing opportunities.
Based on their questions and tenor, the justices seemed to be leaning toward agreeing with the state that it had met its constitutional obligations in enacting a limited-license, vertically integrated structure.
Joe Jacquot, an attorney with the Florida Department of Health, argued that state lawmakers and regulators put in place a system of an “expanding bucket of licenses” that satisfied the constitutional amendment to ensure the availability of medical marijuana.
Countered Katherine Giddings, the attorney for Tampa-based Florigrown, which sued the state in 2018 over the licensing: “This is anything but a free market; it’s created a monopoly of a few entities.”
She said: “The whole thing smells bad.”
If the state Supreme Court upholds the constitutionality of the system, that decision would run counter to Leon County Circuit Judge Charles Dodson’s ruling that licensing limits imposed by a 2017 law violated the MMJ constitutional amendment approved by Florida voters in 2016.
At one point, Dodson told Florida regulators to quit stalling and issue additional MMJ licenses, but the state instead decided to appeal his ruling.
The state made these arguments Wednesday:
- All medical marijuana licensees must meet the same regulatory requirements.
- Twenty-two vertically integrated licenses have been issued, and another 11 are available.
- If Florigrown met the requirements and is prepared to be vertically integrated, then it could apply for one of the available licenses.
But Giddings argued:
- Licenses were issued to a privileged group (of longtime tree nurseries). Many simply sold their licenses. Others have won licenses through litigation.
- The state hasn’t accepted any additional applications, nor is there even an application process in place.
- Many of the 22 licensees aren’t operating and the market is dominated by a few. (Trulieve controls nearly 50% of a market rapidly approaching a billion dollars in sales a year. A handful of operators control most of the remainder of the market).
The Florida high court did not set a time frame for a ruling.