House seeks to join 'monumental' marijuana case

Florida House leaders should be able to participate in a lawsuit that could revolutionize the state’s medical marijuana market, a lawyer for the Republican-led chamber told a three-judge panel of the 1st District Court of Appeal Tuesday.

But Tampa-based Florigrown argued that legislators instead should concentrate on fixing the law, aimed at carrying out a constitutional amendment that broadly legalized medical marijuana.

Tuesday’s arguments came a week after a different panel of the same appellate court upheld in part a Tallahassee judge’s decision that the statute, approved by legislators during a special session in 2017, ran afoul of the constitutional amendment.

“When a law is found to be unconstitutional, the Legislature goes and fixes it. They don’t freelance and argue on their own, the constitutionality of what they already wrote. They could have written it in a constitutional way in the first place,” Florigrown CEO Adam Elend told reporters following Tuesday’s hearing.

The House sought to intervene in the legal challenge after Leon County Circuit Judge Charles Dodson sided with Florigrown and ruled that the statute requiring pot operators to grow, process and distribute cannabis and related products --- a system known as “vertical integration --- was unconstitutional. Dodson’s ruling also struck down a portion of the state law that set a cap on the number of medical marijuana operators in the state. But the Tallahassee judge refused to allow the House to join in the lawsuit.

During arguments in the House’s appeal Tuesday morning, however, Judge Brad Thomas openly questioned Dodson’s decision.

“The (constitutional) amendment was a monumental change of the law, in allowing the distribution of a drug that is illegal under federal law, illegal under Florida law except to the extent that it’s authorized by the amendment, and a circuit judge has declared this regulatory scheme invalid. How can the House not be allowed to intervene on the merits of that determination?” Thomas asked Katherine Giddings, a lawyer representing Florigrown.

Giddings said the House waited too long to join the lawsuit, and that the issue was settled by the appellate court on July 9, when a majority of a three-judge panel found that “the statutory language directly conflicts with the constitutional amendment, and appellee (Florigrown) has demonstrated a substantial likelihood of success” in procuring a judgment declaring the statute unconstitutional.

The appeals court in part upheld Dodson’s temporary injunction requiring state health officials to begin registering Florigrown and other medical-marijuana firms to do business.

“This is a situation where the legislation is so blatantly unconstitutional,” Giddings said.

But Thomas disagreed, saying the constitutionality of the law will be determined by the appeals court, not the circuit judge.

“It’s not blatantly unconstitutional until we decide whether it is or not,” Thomas scolded.

The appeals court decision, which requires health officials to come up with new regulations, did not result in an overnight upheaval to the state’s pot industry. But it sent shockwaves through Florida’s highly restricted but rapidly growing medical marijuana industry, in which licenses are routinely selling for upwards of $50 million.

And Thomas may have injected even more uncertainty into the state’s cannabis arena on Tuesday, saying the appellate ruling “is not final” because “it’s subject to rehearing.”

In addition, Dodson has yet to rule on the merits of the lawsuit filed by Florigrown, which is partly owned by Tampa strip-club operator Joe Redner.

But Giddings argued that the resolution of the case could be simple.

“All that the Legislature has to do is meet in special session and come up with laws that are constitutional,” she said, again drawing the wrath of Thomas, who was highly skeptical that such a solution would be easy.

The House would have to “try to convince the governor or the Senate president to convene an immediate special session” to address the issue and “attempt to essentially circumvent the trial court’s ruling” and “come up with what you think is constitutional legislation,” the judge said.

“They’re not to be allowed to intervene in the case and defend their policy-making prerogatives,” he said.

But Judge Scott Makar questioned why the House was bothering to intervene in the case, which Makar said would almost certainly wind up before the Florida Supreme Court. The law will remain in place until the legal challenges are resolved, Makar indicated.

“So if we rule for you in this case, where does that get you?” Makar asked Adam Tanenbaum, the House’s general counsel. “In other words, the bus has already left the station on the injunction. You weren’t there.”

The appeals court could revisit its decision upholding Dodson’s temporary injunction, Tanenbaum noted.

“Maybe there’s a rehearing here. We don’t know,” he said. “Hopefully there’s more proceedings that occur in the trial court. The question, is what would we do on intervention if it’s already done, even if it’s back at the trial court. And the answer is, no it’s not done.”