Marijuana

Florida Medical Marijuana Is Back From The Dead

The hype that surrounded Amendment 2 feels like it has waned, but can we expect the same political and legal tumult that faced Amendment 2 the first time around?

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Hilary Bricken

Hilary Bricken

Florida has a love/hate relationship with marijuana. You may not know it, but Florida has a very limited medical marijuana program that its legislature adopted in 2014 and that’s been entangled in legal challenges almost from its inception. In the same year, Florida also tried passing a medical marijuana constitutional amendment (Amendment 2) by a vote of the people that would have created a more robust medical marijuana marketplace. This year, that ballot initiative will again be making its way back to the voters. The hype that surrounded Amendment 2 feels like it has waned, but can we expect the same political and legal tumult that faced Amendment 2 the first time around?

Florida’s Amendment 2 took a strange and rocky road to the ballot box the first time around. The Florida State attorney general filed a challenge to strike it down, alleging it misled the public about its true intent and effect. The Amendment 2 campaign had to go before the Florida’s Supreme Court to keep Amendment 2 alive, which it did.

I am a licensed Florida attorney and I spent much time in the state with clients during the run-up to Amendment 2, and, in my opinion, what really set so many Florida voters against Amendment 2 was the proliferation of more fly-by-night pot colleges, airport seminars, and self-proclaimed “medical marijuana business lawyers” promising endless riches than I have seen in any other state.

Florida also saw billionaire Sheldon Adelson pony up massive funds to fight against Amendment 2 through a well-funded group that claimed medical marijuana is the new “date-rape drug,” and that circulated a video of Amendment 2’s main financial backer and supporter, lawyer John Morgan, claiming that Morgan’s true intent was to completely legalize marijuana. In spite of all this, our firm advocated in favor of Amendment 2.

Amendment 2 made it to the ballot box but did not get the votes needed to pass. Florida requires a 60% supermajority vote for a constitutional amendment by the voters, and Amendment 2 fell short at around 57% of the vote.

In January 2015, I wrote about Amendment 2 making a comeback in 2016. The campaign for Amendment 2 has now gathered the necessary signatures for the Florida Division of Elections to certify the Amendment to go to the ballot this November, and there have so far not been any legal challenges from the state attorney general or any opposition groups.

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What makes the new Use of Marijuana for Debilitating Medical Conditions ballot amendment different from Amendment 2? Frankly, not much beyond clearer language regarding regulation and oversight of medical marijuana businesses, qualifying patients, and caregivers.

If the new amendment passes, Florida’s Department of Health will be in charge of oversee Florida’s medical marijuana program. “Medical Marijuana Treatment Centers” (MMTC) are the entities that will grow, process, and distribute all medical marijuana. An MMTC is defined as “an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department [of Health].”  A “qualifying patient” will be a person diagnosed with a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card. “Debilitating Medical Condition” means “cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”

This new amendment makes clear that the Florida Department of Health will issue “reasonable regulations necessary for the implementation and enforcement” of the new law so as to ensure the availability and safe use of medical marijuana by qualifying patients. The amendment makes sure that the following regulations be promulgated no later than six (6) months after the effective date of the law:

  • Procedures for issuance and annual renewal of qualifying patient identification cards to people with physician certifications and standards for renewal of such identification cards. Before issuing an identification card to a minor, the Department [of Health] must receive written consent from the minor’s parent or legal guardian, in addition to the physician certification.
  • Procedures establishing qualifications and standards for caregivers, including conducting appropriate background checks, and procedures for issuance and annual renewal of caregiver identification cards.

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  • Procedures for registration of MMTCs to include issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection, and safety.
  • A regulation defining the amount of marijuana reasonably be presumed to be an adequate supply for qualifying patients’ medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient’s appropriate medical use.

I am hoping that the legal and political circus that encircled Amendment 2 will be kept at bay this time around, and that Florida voters will be placated by the amendment’s stronger language regarding regulation and control of Florida’s more comprehensive medical marijuana program. Only time will tell.

Do stay tuned.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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