NORML and Governor DeSantis Agree: Do Not Create Legal Marijuana Cartels

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In a letter sent today to Governor Ron DeSantis, NORML joined Regulate Florida, the Florida Cannabis Action Network (FLCAN), the Law Enforcement Action Partnership (LEAP), Irv Rosenfeld, and Former Sheriff Jim Manfre of Flagler County in calling for DeSantis to ensure that the emerging medical marijuana licensing process be oriented to create a robust marketplace to best serve patients with high-quality and affordable medicine.

“The Florida Legislature has a choice to make. Will they side with patients whose ailments range from cancer to HIV-AIDS or will they choose to side with greedy businesses who seek to profit off the suffering of others,” said NORML Political Director Justin Strekal. “When it comes to medical cannabis in Florida, good policy is also good politics. State lawmakers would be wise to create a patient-friendly competitive marketplace, not monopolies, as the voters overwhelmingly intended when they amended the state constitution in 2016.”

In January, Governor DeSantis said, “We need to have the people’s will represented in good law that is doing what they intended. I look at how some of this was created, where they (lawmakers) created a cartel, essentially.”

 

You can read the full text of the letter below.


April 3, 2019

Office of Governor Ron DeSantis
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

Governor DeSantis:

Thank you for your leadership on the lawsuits relating to smokable marijuana and to the limitation and vertical integration of licenses (Florigrown vs. State of Florida).

The legislature would not have resolved the smoking issue if not for your intervention. This will undoubtedly lead to an increase in patients, creating an urgency to issue new licenses as soon as possible. We are patiently awaiting your leadership on the other major issues obstructing the implementation of Amendment 2: the limitation and vertical integration of Medical Marijuana Treatment Centers (MMTCs).

You are correct when you said “We need to have the people’s will represented in good law that is doing what they intended. I look at how some of this was created, where they (lawmakers) created a cartel, essentially.” The current MMTCs control the production of marijuana and work together to keep competition out and prices high. A dark cloud has lingered over Florida’s medical marijuana program since its inception. They have given well over $2.5 million in political contributions and hire as much of the lobbying corps as possible with the goal of maintaining their exclusive hold on the market. Peculiar and potentially unconstitutional provisions like the 30-year nursery requirement with at least 400,000 plants, granting licenses to unsuccessful applicants, and other subsequent legislation protecting their interests at the expense of patients, raise serious questions. The Department of Health (DOH) estimated nearly 2,000 (1,965) licenses would be needed to implement Amendment 2. We currently have roughly 1% of the official DOH estimates.

The voters’ understanding of the amendment is central to its constitutional interpretation. Amendment 2 was described by proponents and opponents during the campaign as creating an open market [see opponent’s campaign ad: Same people, same problems, same loopholes; and the proponents’ Amendment 2: Analysis of Intent]. The information communicated to the voters was voluminous and consistent. Therefore, the adoption of the amendment must be viewed as an affirmation by the voters of an open market system. We agree with your statement “Everyone knew what that amendment meant. I mean, it was very clear. There was an overwhelming support for it. So we’ve just got to enact a statute that is going to pass constitutional muster.”

When defining MMTCs, the drafters used the operative word ‘or’ in the description of the various business functions, precluding the mandate for vertical integration. The analysis of the drafters’ intent states the following:

“This language allows cross ownership of MMTCs, but does not require any cross ownership of MMTCs. A requirement that a single MMTC must perform all MMTC functions would be contrary to the language and intent of this Amendment, which clearly calls for a variety of business functions in the language.”

SB 8A used the same definition for an MMTC as the amendment. However, the word ‘or’ was changed to ‘and’ in the implementing language of the bill. That change meant the difference between a horizontal and vertical market. It was also a clear violation of the plain language and intent of the constitutional amendment.

The constitution provides restrictions on the regulations implementing the program. It requires “reasonable regulations necessary for the implementation and enforcement of this section. The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients.”

The proponents of Amendment 2 address this in their analysis of intent:

“The intent of this provision would prevent unnecessary and unreasonable burdens on access to medical marijuana such as arbitrary or overly restrictive limits on the number or size of MMTCs”.

A reasonable regulation cannot be unreasonable, which is defined as arbitrary or based on a personal whim. When asked on the Senate floor how the sponsor of SB 8A decided on the number of 10 new licenses, he described it not as a magic number, but rather a number the Governor, House, and Senate could agree upon.

The limitation on licenses also violates the requirement to ensure availability to qualifying patients. Conversely, it has resulted in diminished availability, higher prices, limited choices, and fewer points of access. States with open markets do not experience issues with availability nor do they observe any threats to the patients’ safe use relative to their licensing structure or the number of licenses. It is clear the limitation of licenses is in direct conflict with the language and intent of the constitutional amendment.

There are very few supporters of the monopoly and they regularly claim the contested provisions of the law are constitutional, but that is not consistent with the record before the court. They contend the State has the right to restrict the participation in the medical marijuana industry because marijuana is illegal at the federal level. Judge Dodson observed that the limitation on licenses and vertical mandate do not make it less illegal at the federal level and noted the State was treating the constitution like a “recommendation”. As you are probably aware, the State cannot be required to enforce the federal law (New York vs. United States and Printz vs. United States) but the State is required to follow its own constitution. The defense of the vertical mandate and limitation of licenses cannot be reconciled with the facts we observe in states with open markets. Those states are subject to the same federal laws as Florida and they do not experience federal intervention due to their horizontal structure or number of licenses. Federal intervention occurs for two reasons: black market diversion and unlicensed activity. We believe it is wrong to violate the constitution, especially to protect a speculative investment made by the current licensees. It is our hope the legislature will immediately address this issue.

Settling the Florigrown lawsuit would result in greater access for patients and would end the monopoly of the medical marijuana market. The price for marijuana in Florida is currently more than twice as much in other states. These high prices are forcing patients to the black market where they buy cheaper, untested and adulterated marijuana. Low-income patients and patients on disabilities are especially affected by these high prices. This is a public health risk that would be mitigated if there was more competition to lower prices and increase choices, as the amendment intended.

We believe principles are fundamental, consistent, and not subject to selective application. It was made clear to us that you share our free market principles when you said “I think it should be horizontally integrated rather than vertically integrated…Vertical integration is not free market principles…If you’re going to do it, do it according to sound economic principles.”

We know you must be hearing from the cartel, their lobbyists, and their allies. You should know they represent their interests – not the interests of patients nor the will of the voters. Your administration has the authority pursuant to the constitution to remedy these issues regardless of legislative actions or inaction. Amendment 2 is self-executing, and it empowers the Department of Health to promulgate standards for registering MMTCs. In fact, the Department of Health already has a process in place which has been used to register MMTCs and grant authorizations to perform their various functions.

When discussing ending this lawsuit, you stated “Both leaders of the Legislature say they are going to do it, but if they don’t we have the ability to dismiss the lawsuit so they will have that hanging over their head.”

The Florida Legislature has a choice to make. Will they choose to side with greedy businesses or patients. When it comes to medical marijuana in Florida, good policy is good politics. State lawmakers would be wise to create a patient-friendly competitive marketplace not monopolies, as the voters overwhelming intended.

Your statement has justifiably raised expectations among Floridians that a major overhaul of the State’s medical marijuana program is imminent. Absent immediate legislative action that ensures a free-market system, we ask you to deliver on your commitment and settle the lawsuit, consistent with both Amendment 2 and your oath to protect and defend the Constitution.

Sincerely,

NORML of Florida

Regulate Florida

Jodi James, Florida Cannabis Action Network (FLCAN)

Ray Strack, LEAP (Law Enforcement Action Partnership)

Irv Rosenfeld

Former Sheriff Jim Manfre of Flagler County

cc: The Florida Legislature


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