Miami rejects medical cannabis dispensaries. A lawsuit could bring matter to a head

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Two companies fighting to open medical marijuana dispensaries downtown have sued the city of Miami, challenging the city’s stance that federal law trumps the Florida Constitution.

Miami’s city government has rejected cannabis dispensaries since Florida voters approved the creation of a full-fledged medical marijuana marketplace in a 2016 referendum that amended the state Constitution. Instead of creating zoning restrictions to regulate where dispensaries can open, or outright banning them, Miami has created no new laws and relied on an internal legal opinion that the change to the Florida Constitution was moot because federal law continues to categorize marijuana as an illegal substance with no medicinal value.

By contrast, Miami BeachCoral Gables and other local governments approved zoning regulations that dictate where dispensaries can go, even if they did so begrudgingly.

Dispensaries are storefronts where card-carrying patients certified by the state to treat medical conditions with cannabis can purchase products. There are more than 270 dispensaries in the state of Florida, according to the website FLDispensaries.com.

The city’s resistance to medical cannabis has caused problems for company MRC44, which has sought city approvals since 2019 to open a dispensary at 90 NE 11th St. The city initially denied the company a certificate of use, citing the city attorney’s opinion. Miami’s zoning board recently sided with the company in an appeal, leading city administrators to challenge the board’s decision before the Miami City Commission.

Commissioners were expected to settle the matter Thursday. But before they could weigh in, MRC44 and another company seeking to open a dispensary filed suit in Miami-Dade Circuit Court on Wednesday. The companies claim they have the right to open dispensaries in any location in Miami without municipal permits because the city has no medical marijuana ordinance. The second firm owns property at 60 Northeast 11th St., on the same block as the MRC44 location.

“We will address it in court,” City Attorney Victoria Méndez said Thursday.

Commissioners postponed the vote on MRC44’s issue due to the pending lawsuit, but they separately instructed Méndez to seek a declaratory action from a judge to settle the question of federal versus state law. It appears that both legal routes could yield rulings that could clarify the matter.

“I feel that there’s a discrepancy or a conflict between state and federal law, and I just want to ask a court of law to opine on that,” Méndez told commissioners.

Commissioner Alex Díaz de la Portilla asked: “Have any of the 31 states that have passed either recreational or medicinal marijuana done the same thing?”

“I’m not sure if they have, but I cannot give you advice to open or allow marijuana dispensaries until we have a little more clarification,” Méndez responded. “That’s all.”

Miami’s outlier legal position on Florida’s marijuana marketplace led to an awkward moment a few months after the 2016 referendum. During a Planning Zoning and Appeals Board meeting in May 2017, Deputy City Attorney Barnaby Min used what he couched as a “poor example” to illustrate the city’s stance.

“If the city of Miami for some infinite, God-forbidden reason thought having sex with a child was a great way to recover from some issue and so we wrote that into our city code, just because the city says that’s legal doesn’t mean it’s legal,” Min said.

Some Miami-Dade cities, including Miami Beach, have faced lawsuits over their rules regulating dispensaries. But the industry has largely stayed away from the city of Miami, said Akerman attorney Ian Bacheikov, who represents medical cannabis companies on land use issues.

“State statute says you’d have to treat [marijuana dispensaries] the same way you treat a pharmacy,” Bacheikov said. “They’re simply saying dispensaries are something else and they are not permitted.”

Commissioner Ken Russell supports medical cannabis and had previously suggested he might sponsor an ordinance, but he hesitated for fear his colleagues might oppose it and end up passing a ban. On Thursday, he supported getting the courts to clear things up.

“This case, and the pending request for a federal judge to interpret the conflict between state and federal law, should signal to our federal legislators and the president that it’s time to update federal law to keep up with the will of the states, cities and the majority of their voters,” Russell said.

Thursday’s discussion coincided with a significant decision by the Florida Supreme Court derailing an effort to legalize recreational marijuana. In a 5-2 decision, justices ruled a ballot initiative by the group Make it Legal Florida was “misleading.”

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