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With over 71% of Florida voters passing Amendment 2 in 2016, many Florida residents thought that the will of the people would be followed. That just isn't the case. Amendment 2 of the Florida Constitution allowed qualified physicians to issue a physician certification for the medical use of marijuana by individuals with debilitating medical conditions. Advocates for the reform of marijuana laws in Florida need to keep applying pressure, submitting comments, and pushing for best practices.
After the passage of Amendment 2, many questions unanswered. Some of those questions were answered with the passage of enabling legislation enacted through Senate Bill 8A on June 9, 2017. The bill was signed into law by the Governor of Florida on June 23, 2017, and is codified as Fla. Stat. § 381.986.
The amendment prohibits patients from smoking or burning marijuana flower, which for many patients is the primary way to administer the medicine. The DOH is now being pressured to expedite implementation and to be more transparent. When legislators passed an amendment to cut the OMMU's entire budget if they do not move forward more quickly, the next day OMMU had put out 20 new rules and set up four public hearings in the next two months.
The Florida Department of Health issued notices of proposed regulations on medical marijuana. The Florida Department of Health has taken the position that the phrase "qualifying debilitating medical condition" would have the same definition as "qualifying medical condition" in Section 381.986(2). See 43 Fla.Admin.Weekly 2698 (June 16, 2017).
Amazingly, the legislation contains an explicit prohibition found in Section 381.986(1)(j)(2) on the administration of medical marijuana by smoking, although it allowed for the possession of medical marijuana flower vaping. Section 381.986(1)(j)(2) provides that “medical use” does not include possession, use, or administration of marijuana in a form for smoking, in the form of commercially produced food items other than edibles, or of marijuana seeds or flower, except for flower in a sealed, tamper-proof receptacle for vaping.
More than 40 distinct operation violations have occurred for failing to provide a working regulatory system for patients, caregivers, testing facilities, and manufacturers. Many of these violations were made by the Department of Health (DOH).
In March of 2018, Florida's legislature passed a bill to fix the delays that still exist in Florida's medical marijuana system including an amendment to cut millions in DOH salaries if they do not fix these issues by the summer of 2018. Also in March of 2018, 13 new rule-making processes began at the Department including dosing and edible hearings in Miami and Orlando, and meetings on testing and pesticides in Jacksonville and Tallahassee. More workshops are scheduled in Tallahassee in April of 2018.
The Florida Department of Health is moving to implement Amendment 2, but they are choosing to ignore and disregard the most important elements of the amendment. We all have an interest in how the Medical Marijuana laws in Florida are being implemented.
The attorneys at the Sammis Law Firm work with clients to stay in compliance with the new regulations. Our attorneys also represent clients subjected to enforcement actions initiated by law enforcement and the Florida Department of Health against patients, medical marijuana physicians, and businesses that are accused of operating outside the regulatory structure in Florida.
Call 813-250-0500 for a consultation today.
The prohibition of cannabis in Florida funds the Mexican Drug Cartels and violent crime. It creates a drain on the resources of law enforcement officers, prosecutors, and our criminal justice system. It is nothing more than a jobs program for law enforcement officers and those that profit from the status quo.
Legalization raises tax money for the state. It will create hundreds of small businesses in Florida that will replace the underground criminal system that import marijuana into our state.
Criminal defense attorneys throughout the state of Florida will continue to fight to protect their client's charged with marijuana possession charges.
We will have to explain to our clients how our elected officials in Washington D.C. can smoke marijuana for recreational purposes, but the same act in Florida is a crime punishable by up to 12 months in jail, and automatic 2 year driver's license suspension (with no possibility of a hardship license for the first 12 months), and a $1,000 fine (plus additional junk fees and court costs).
Even if you avoid the conviction and jail time, any probation sentence or diversion program requires hundreds of dollars, and hours spent on community service, drug testing, and counseling. Then the individual must spend thousands of dollars to seal or expunge the criminal record and eliminate all mug shots published by data mining companies like mugshot [dot] com.
Before you can understand where we are now, it is important to understand where we came from. 3,320,836 Floridians voted in favor of legalizing medical marijuana on November 4, 2014. It received 58% of the votes. Although many argued that Amendment 2 did not go far enough, it did create a path for obtaining marijuana for medical purposes.
Amendment 2 did not obtain the 60% of votes needed. It did, however, receive more votes than the last six (6) elected governors. Amendment 2 received 500,000 more votes than Rick Scott, the governor elected. Amendment 2 received the second highest majority of any medical marijuana vote in the history of the United States.
The Florida legislature should act quickly to bring a good Medical Marijuana law to Florida. It is particularly important that the law provides for a mechanism for caregivers to cultivate a small number of plants. That provision was left out of Amendment 2. Because of Amendment 2, millions of Floridians are better informed. The majority of Floridians understand that the war on marijuana and efforts to prohibit it have failed.
On January 25, 2014, the Florida Division of Elections confirmed that proponents of a 2014 Florida measure to allow for the physician-supervised use of cannabis have gathered sufficient signatures to qualify for the November ballot. Also, the Florida Supreme Court has issued an advisory opinion finding the ballot language to be in compliance with Florida law.
The new Florida law will NOT allow home cultivation. It also falls short of legalizing marijuana for recreational use which was passed by voters in Colorado and Washington in 2012. Instead, it allows the possession and use of marijuana for medical purposes when approved by a physician.
In August of 2013, The United for Care campaign, run by the People United for Medical Marijuana (PUFMM), filed a petition with the Florida Secretary of State.
The petition was the first step towards amending the Florida Constitution to provide for the legalization of marijuana for medical purposes. PUFMM obtained more than 700,000 valid signatures during a petition drive in order for the issue to be included on the general election ballot in 2014. The legislation was drafted by Florida constitutional expert Jon Mills, a former Florida House Speaker and the past dean of the University of Florida College of Law.
Statewide polling from earlier this year showed that 70 percent of Florida voters supported a constitutional amendment to legalize medical marijuana. At that time, nineteen states had already enacted medical marijuana laws that vary widely. In order for the ballot initiative to become law, it must receive 60% of the vote as opposed to a simple majority.
Floridians that want to legalize medical marijuana are in for a long and difficult battle. Expect the opposition groups to ramp up their efforts in the next few months. The Manatee County Substance Abuse Coalition posted an article opposing medical marijuana on its website. According to the article:
"States that have established medical marijuana programs have experienced widespread program abuse. In states that track conditions under which people qualify to use medical marijuana, on average, only 7 percent of patients have terminal or life-threatening illnesses.
The vast majority are smoking marijuana for pain (a subjective term that is being used to cover medical conditions such as menstrual cramps, headaches and minor arthritis). The idea of treating pain with smoked marijuana is of particular concern for Florida, as we are experiencing an epidemic of prescription drug abuse."
The Best Way to Legalize Marijuana
Even within the community that hopes to reform marijuana laws, much debate exists about the best way to effect change. Some push for full legalization for recreational purposes under the model just approved in Colorado. Others advocate for limiting the legislation to address "medical" marijuana under the model used in California. Different groups include:
History of Marijuana Prohibition in the United States
Possession of marijuana became illegal under Federal law in 1970 when congress passed the Controlled Substance Act of the Comprehensive Drug Abuse and Prevention and Control Act. Soon thereafter efforts to reform the laws surrounding the legalization of marijuana began. Most notably, the National Organization for the Reform of Marijuana Laws (NORML) was created to lobby individual states to decriminalize marijuana.
In the early 1990's various groups began efforts to legalize medical marijuana and eliminate minimum mandatory sentences for marijuana offenses. Successful efforts resulted from petitions to add medical marijuana legalization to the ballot to allow the citizens of each state to vote on the issue, including California and Arizona which approved provisions for medical marijuana.
Legalization Efforts in Other States
Voters in the state of Colorado and Washington passed measures to legalized the possession of marijuana for recreational use (at least under state law). In total, thirteen states have taken steps toward legalizing marijuana, including California, Michigan, Nevada, Colorado, Maine, New Mexico, Montana, Oregon, Vermont, Washington, Rhode Island, Hawaii, and Alaska.
Although marijuana is not legal under the laws of other states, physicians are allowed to prescribe marijuana for medical purposes in Arizona. Additional, the State of Maryland recognizes the medical use defense.
Efforts to Legalize Medical Marijuana in Florida in 2012
In 2012, for the first time in Florida's history, resolutions were pending in both Florida's House and Senate to legalize medical marijuana. Florida House of Representative Jeff Clements of Lake Worth, Florida, filed HJR 353. State Senator Larcenia J. Bullard (now former State Senator) of Miami, filed companion legislation known as Senate Joint Resolution 1028.
This legislation would have legalized marijuana in Florida for medical purposes with the recommendation of a doctor. The legislation would allow for medical marijuana cultivation and dispensaries to operate in Florida. The legislation died in committee.
The Last Constitutional Amendment Petition Form from 2012
I am a registered voter in Florida and hereby petition the Secretary of State to place the following amendment to the Florida Constitution on the ballot in the general election.
AMENDMENT TO CREATE ARTICLE 1, SECTION 28 ("RIGHT TO MARIJUANA FOR TREATMENT PURPOSES") OF THE FLORIDA CONSTITUTION
BALLOT TITLE - RIGHT TO MARIJUANA FOR TREATMENT OF CERTAIN MEDICAL DISEASES AND CONDITIONS.
BALLOT SUMMARY - This proposed amendment is designed to create a new article Section 28 ("Right to Marijuana for Treatment Purposes") of the Florida Constitution so as to permit the cultivation, purchase, possession and use of marijuana to treat Alzheimer's, Cachexia, Cancer, Chronic Pain, Chronic Nervous System Disorders, Crohn's Disease, Epilepsy, and other Seizure Disorders, Glaucoma, HIV/AIDS, Multiple Sclerosis, Parkinson's, disease causing muscle spasticity, or other diseases and conditions when recommended by a physician.
Arguments Against the Legalization of Marijuana in Florida
According to a position paper from the Florida Police Chiefs Association concerning the previously proposed language, the ballots in Florida would be misleading because voters would only see the follow language from the Florida Constitutional Amendment Petition Form:
§ Title: Freedom to Use Medicinal Marijuana for Specific Certified Medical Purposes.
§ Summary: Establishes a Right of individuals to choose to obtain and use marijuana for Specific Medical Purposes when certified as Medically Appropriate by a licensed physician; protects physicians and third parties who recommend or provide medicinal marijuana and allows Penalties for Fraudulent Certification or Use.
Groups against the legalization of marijuana argue that maintaining the status quo holds down marijuana abuse and addiction, lessens crime problems, sends the right message to young people, and avoids the slippery slope of legalizing more serious drugs.
Groups that argue against legalization efforts in Florida rely on outdated and incomplete statistics which indicate that few people are incarcerated in Florida State Prison for marijuana offenses. According to Florida Department of Corrections, only 13 (.02%) of the 65,092 inmates in Florida's prisons on September 5, 1997 were incarcerated for the "primary offense" of possession of marijuana while only one percent is in prison for "marijuana production" offenses.
The FDLE statistics did not account for the so-called trafficking or delivery offenses. The statistics also completely ignore the number of individuals incarcerated in county jails throughout the Florida. Furthermore, these statistics ignore the huge number of individuals in Florida State Prison for "non primary offenses" such as violation of probation for marijuana offenses.
Marijuana Prohibition Is Alive And Well in Florida - NORML.org blog article about Karen Goldstein with South Florida NORML, and her letter to Florida Governor Charlie Crist about the one-third of U.S. citizens living in states that have either decriminalized marijuana or provided for medical marijuana protections and the dismissive response from Bruce D. Grant, Director of the Florida Office of Drug Control.
Marijuana Anonymous - Marijuana Anonymous uses the basic 12 Steps of Recovery founded by Alcoholics Anonymous to help those suffering from marijuana abuse or addiction. Includes marijuana stories of recovery, cannabis cross addiction information, and the "twelve questions that may help you determine if marijuana is a problem in your life."
History of How Marijuana Became Illegal - Article traces the history of marijuana from 7000-8000 B.C. when hemp was first used for woven fabric, to the United States from the 1937 Marihuana Tax Act, Pub. 238, 75th Congress, 50 Stat. 551 (Aug. 2, 1937), to the Title II Controlled Substance Act of the Comprehensive Drug Abuse and Prevention and Control act of 1970, and beyond.
This article was last updated by Jason D. Sammis on Friday, March 30, 2018.
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Jason D. SammisTampa native with 15 years experience. University of Florida College of Law Graduate...Read more
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