Medical-marijuana dispensaries have been permitted in Florida since voters approved Amendment 2 in 2016. In the intervening years, Miami Beach, North Miami, and Coral Gables have allowed marijuana businesses to operate. Yet Miami city officials haven't written a single ordinance pertaining to medical marijuana, either banning or regulating it.
Their indecision is now playing out in real time as a Los Angeles-based company fights to open a dispensary in downtown Miami. Despite a key vote from a city board last month saying the company should be allowed to set up shop, the city's zoning office is moving forward with an appeal, which it filed last week.
The company, MRC44, first applied in February 2019 for a certificate of use to open a cannabis dispensary at 90 NE 11th St., near the nightclubs Space and E11even.
A month after submitting its application, the company received an unexpected response. City Zoning Administrator Joseph Ruiz denied the certificate of use based on guidance from the city attorney's office, which has taken the position that marijuana is illegal despite Florida statutes legalizing medical cannabis. The city's opinion is that federal law supersedes state law, and because the federal government continues to classify marijuana as a Schedule 1 drug — i.e., "a substance that has "no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse" — the city cannot issue permits for dispensaries.
During a May 2017 meeting of the Planning and Zoning Appeals Board (PZAB), several months after Amendment 2 passed, Assistant City Attorney Barnaby Min advised board members that Miami would continue to adhere to federal law. While doing so, he compared medical marijuana to pedophilia.
"If the City of Miami, for some infinite, God-forbidden reason, thought having sex with a child is a great way to recover from some issue, so we wrote it into our city code — just because the city says it's legal, doesn't mean it's legal," Min said. "Just because for marijuana, we say marijuana is legal and the state says it's legal, until the federal government says it's legal, it's not legal."
Since then, the city attorney's office has continued to argue that medical marijuana is not technically legal. No dispensaries attempted to open within city limits until MRC44 applied for a certificate of use in 2019.
Attorneys for MRC44 appealed the city's denial in November 2019, arguing that the city was violating state law by denying the application without an actual ordinance banning medical marijuana in Miami. The company's attorneys argued that under Florida Statute 381.986, a county or municipality may not limit the number of dispensaries within its borders if it does not have an ordinance that bans medical marijuana. The statute also states that a municipality cannot place restrictions on permits for dispensaries that are more restrictive than those for regular pharmacies.
Louis J. Terminello, an attorney for MRC44, believes City Attorney Victoria Méndez's legal opinion on medical cannabis is misguided and holding back Miami.
"This robs the city of valuable financial resources, for what could only be construed as a questionable call," Terminello tells New Times. "It's time for Miami, one of the most vibrant cities on the planet, to join the mainstream."
The appeals hearing with the Planning, Zoning, and Appeals Board was postponed until February 17, when the PZAB upheld MRC44's appeal in a 7-4 vote, affirming that the company is entitled to a certificate of use.
PZAB member Adam Gersten, who owns Gramps tavern in Wynwood, questioned the city's logic and asked why Miami has not passed any laws regarding dispensaries.
He reiterated those concerns in an interview with New Times.
"The state requires an ordinance to ban it," he says. "In that ordinance, [the city] could say, 'Due to the ongoing ban by the federal government, medical marijuana is banned,' and then have hearings on it. Otherwise, the state legislature has already contemplated this."
City Commissioner Ken Russell, a vocal supporter of medical marijuana, tells New Times he hasn't proposed an ordinance allowing dispensaries in part because the state law already allows for dispensaries without a municipal ruling, and also because he didn't think a pro-marijuana policy would pass under the current slate of commissioners.#BREAKING: Miami Planning, Zoning & Appeals Board overturns @CityofMiami's illegal denial of certificate of use to open a medical marijuana dispensary after city attorney @VickyMendezEsq violates the Florida Constitution, state statute and likely the 10th Amendment #BecauseMiami pic.twitter.com/WAWidd4ef4
— Because Miami (@BecauseMiami) February 18, 2021
"I believe [medical marijuana] is and should be legal in Miami, as it is in State of Florida," says Russell, who represents the district where MRC44 wants to set up shop. "I wasn't sure that the votes would be there for an ordinance, and I did not want to set a negative precedent for medical marijuana."
Despite the vote from the appeals board, the city's zoning office isn't going down without a fight.
Last Thursday, just before the end of a 15-day deadline to respond, interim zoning administrator Tamara Allen Frost filed an appeal with the city commission opposing the PZAB's ruling and maintaining the argument that federal law precludes the city from allowing marijuana dispensaries.
The appeal also cites a provision of the Miami 21 zoning code that requires the city to defer to the most restrictive standards of law in cases where the code differs from applicable rules.
The city's appeal will soon be assigned to the agenda of an upcoming commission meeting, where commissioners will hear arguments from the zoning office and from MRC44's attorneys regarding their certificate of use application.
Russell believes the company is entitled to sell medical marijuana under state law, adding that he plans to challenge the city's appeal when it comes before the commission.
"This appeal sets a negative precedent, in my opinion," Russell says.
Terminello, the attorney for MRC44, says he will continue fighting to open the dispensary, although he believes the city should simply write legislation on cannabis to make its position clear.
He points out that while Miami continues to hamper the legal sale of marijuana based on federal law, many other municipalities have ushered in medical cannabis free of federal intervention.
"If the federal government agreed with the city attorney that medical cannabis dispensaries are not permitted, then one of the thousands of cities around the country that permit it would've heard from them by now," he says. "Under this theory, the people of Colorado, Washington, Oregon, and a host of other states would all be criminals."
