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Federal Pot Law Key In Florida License Fight

Cannabis plant
Wikimedia Commons
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Pointing to a federal law that makes marijuana illegal, a U.S. district judge has tossed out a lawsuit filed by a Tampa firm that argues Florida health officials violated its due-process rights in a long-running dispute about a medical-marijuana license. 

Louis Del Favero Orchids, Inc., filed a notice that it is appealing U.S. District Judge Robert Hinkle’s decision to the 11th U.S. Circuit Court of Appeals. The firm contends Florida Department of Health officials violated its federal constitutional rights in not granting a potentially lucrative medical-marijuana license after Florida voters broadly legalized marijuana for patients in 2016.

But while medical marijuana is legal in Florida, pot remains illegal under federal law. Hinkle wrote in his ruling last month that the federal law eliminates due-process protection for Louis Del Favero under the U.S. Constitution’s 14th Amendment.

“In other circumstances, this would constitute a property interest protected by the Fourteenth Amendment. Such a right can be denied only through procedures that provide due process,” Hinkle wrote. “But federal law makes it a crime to manufacture, distribute, or possess marijuana. Any interest an individual has in marijuana is not a property interest protected by the Fourteenth Amendment. Similarly, any interest in a license to manufacture, distribute, or possess marijuana is not a property interest protected by the Fourteenth Amendment.”

Louis Del Favero filed the federal lawsuit in June while also pursuing state legal challenges against the Department of Health. In part, the firm contends that its rights were violated because department officials did not review its application for what are a limited number of licenses in the state, effectively denying the application.

Hinkle’s decision to dismiss the case did not address the details of the licensing dispute but focused on the interplay between federal and state laws on marijuana.

As is common, Louis Del Favero’s notice of appeal, filed at the Atlanta-based appeals court this month, does not provide extensive arguments. But in a September document filed in district court, Louis Del Favero’s attorneys contended that a federal law known as the Controlled Substances Act “bears no relevance to Del Favero’s constitutional claims for deprivation of a state property interest.”

“While the CSA (Controlled Substances Act) prohibits possession, manufacture, and distribution of marijuana --- it does not prohibit a person from possessing a license that affords immunity from prosecution under state law for engaging in such activities,” the firm’s attorneys wrote.

But Hinkle wrote that when “Congress declares a substance contraband, an individual cannot have a ‘property’ interest in the substance within the meaning of the Fourteenth Amendment.”

“Del Favero may or may not be correct that the defendants have violated its rights under Florida law,” the opinion said. “But Del Favero will have to look to state law and procedures for any redress. Del Favero possesses no Fourteenth Amendment property interest in the license it seeks.”