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Miami Won't Budge on Dispensaries, Arguing That Marijuana Remains Illegal Federally

Florida voters legalized medical marijuana in 2016.
Florida voters legalized medical marijuana in 2016.
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The City of Miami is confronting a burning question: Which law should it follow when it comes to dispensaries — a state law that allows medical marijuana or federal law that says cannabis is illegal? That conundrum now lands Miami in both state and federal court as the city wrestles with which government takes precedence.

For more than two years, the city has been fighting an attempt by MRC44 LLC, a company managed by Los Angeles entrepreneur Romie Chaudhari, to open a marijuana treatment center at 90 NE 11th St., near the nightclubs Space and E11even. Although Florida legalized medical marijuana in 2016, City Attorney Victoria Méndez contends that because weed is still illegal under federal law, the city cannot issue permits for dispensaries.

On Wednesday, MRC44 and another company managed by Chaudhari, 60 NE 11th LLC, sued Miami in state court. The complaint asks for a judge's interpretation of state law and argues that the companies have a right to open a dispensary under Florida's medical marijuana statute without permission from the city.

In a development that could make matters even more complicated, the next day, the Florida Supreme Court issued an advisory opinion striking down an effort to legalize recreational marijuana in Florida by a proposed amendment to the state constitution, citing the federal prohibition.

"A constitutional amendment cannot unequivocally 'permit' or authorize conduct that is criminalized under federal law," the court opinion states.

In Miami, the debate over the medical dispensary has been playing out since 2019.

MRC44 applied for a certificate of use that February, based on city guidance that says all businesses must operate with a certificate of use. But Miami's zoning office denied the application, citing the advice from Méndez.

MRC44 appealed the zoning office's denial, arguing that because Miami doesn't actually have any written laws that ban dispensaries, the city can't deny a company's right to open one.

Florida law pre-empts municipalities from regulating medical marijuana treatment centers. According to Florida Statute 381.986, a city or municipality ordinance can only ban or set criteria for where dispensaries can be located. To date, the City of Miami has no ordinance that mentions dispensaries or marijuana treatment centers. (Marijuana is still classified as a Schedule I controlled substance by the federal government, which views it as having "no currently accepted medical use and a high potential for abuse.")

Despite a decision this past February from the city's Planning and Zoning Appeals Board (PZAB) that MRC44 had a right to a certificate of use, the zoning office continued to push back against the application. It filed an appeal of the PZAB's decision last month with the city commission, sticking to the argument that federal law takes precedence over state law when it comes to cannabis. The appeal was meant to be heard yesterday but was indefinitely postponed by commissioners in light of the lawsuit, which was filed the night before the commission meeting.

The lawsuit asks a state judge to interpret Florida statutes and clarify the rights of the city and of the company on the issue of medical marijuana dispensaries. The plaintiffs contend that Florida law allows them to open a dispensary anywhere in the city, even without a certificate of use, because there are no ordinances banning or setting rules for dispensaries. (A copy of the complaint is embedded at the end of this article.)

"My client authorized the filing of a lawsuit, as we believe that state law controls and pre-empts the city from having to issue a certificate of use. Use is permitted by state law, and the city can't interfere with it," Louis J. Terminello, an attorney for MRC44, tells New Times. "In our view, we could open up tomorrow."

At yesterday's commission meeting, City Attorney Méndez asked commissioners for permission to take the question to federal court to get a definitive answer from a judge as to which jurisdiction takes precedence, state or federal.

"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," she told commissioners. "I cannot give you advice to open or allow marijuana dispensaries until we have a little more clarification, that's all."

Commissioners unanimously passed a resolution directing Méndez to file an action in federal court to ask for a judge's opinion, placing the fate of Miami's medical marijuana dispensaries in the hands of both state and federal judges.

Commissioner Ken Russell, who in the past has supported the use of cannabis for medicinal purposes, tells New Times that he welcomes clarification from a judge. He says that while cities across the U.S. have opened marijuana dispensaries under various state laws, the conflict between the two levels of government has never been properly resolved.

"It's amazing that this entire industry and state governments are operating on a 'don't ask, don't tell' policy with the federal government. We need clarification on this," Russell says.

Méndez told New Times in an email that her office was aware of the recent Florida Supreme Court opinion.

"As to the Fla. Supreme Court case, it highlights the issue the city has been struggling with," she wrote.

In the lawsuit from Chaudhari's two companies, the plaintiffs hopes to disqualify the City Attorney's Office from representing the city in both the state and federal court cases, as well as in the eventual city commission decision about the appeal. Terminello argues that because the City Attorney's Office represents the zoning office and the PZAB, which have opposing viewpoints on the legality of dispensaries, as well as the commission, it has a conflict of interest in the case.

"We don't believe the City Attorney's Office can be involved in any proceedings relating to PZAB overruling the city's denial of our certificate of use," says Terminello. "If we prevail in disqualifying the City Attorney's Office, they're gonna need to seek outside counsel for the state case, the federal case, and the appeal. I hope they have a quarter of a million dollars to fight this."

Méndez said the motion to disqualify "is not appropriate."

"We will address it with the court," she wrote in her email to New Times.

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