Road to Florida Medical Marijuana Constitutional Amendment

Posted on October 14, 2013 by Jeffrey Feiler

The passage of the Florida Constitutional Amendment, Article X § 29 will create an exponentially-growing Medical Marijuana industry in Florida. I had a great deal of exposure in this area, as I experienced the development of the Colorado Medical Marijuana industry firsthand, in 2010. Below you can learn about what has occurred and will be occurring in the road to legalizing Medical Marijuana in Florida.

The Florida Supreme Court is reviewing the proposed ballot language for a Florida Medical Marijuana Constitutional Amendment and on December 5, 2013, they will conduct a hearing to consider the proposed language. Once the Court approves the language as Constitutional, the petition drive to obtain 683,000 valid signatures will resume. United for Care collected an estimated 140,000 signatures between July and September of 2013. United for Care plans to obtain up to 1 million signatures to compensate for the chance that some signatures be deemed invalid for various reasons. These signatures are needed before February 1, 2014, in order for the proposed Constitutional Amendment to appear on the November 2014 ballot for voters in Florida to consider. As a proposed Constitutional Amendment, it will take 60% of voters to approve the measure.

If Florida voters approve the Constitutional Amendment, the measure will include an implementation plan. The Department of Health or its successor agency is to issue "reasonable regulations" in a "timely fashion" to "insure the availability of and safe use of medical marijuana by qualifying patients." The regulations are to be promulgated no later than 6 months following the effective date of this statute. The "effective date" is not specified. Thus, it may be the date voters cast their approval for this Constitutional Amendment in the November 2014 ballot. Should the Department fail to issue regulations favorable to using medical marijuana within 6 months of the effective date, "any Florida citizen may seek judicial relief." The Department is also tasked with issuing identification cards to qualify patient and caregivers within 9 months of the effective date.

From my experience in Colorado, upon legalizing Medical Marijuana, the state's Department of Revenue in Colorado created the Medical Marijuana Enforcement Division (MED). MED was unable to keep up with demand, and fell behind on the issuance of Medical Marijuana Cards. Therefore, patients were permitted to present documentation from the Doctor as their interim "cards," permitting them to purchase marijuana legally.

The Florida Medical Marijuana Constitutional Amendment, if approved in November 2014, calls for the Department of Health to issue rules and procedures. The Amendment, Article X § 29, does not require Florida Legislature to enact laws, however states "Nothing in this section shall limit the legislature from enacting laws consistent with this provision."

In Colorado, the Legislature passed House Bill 10-1284, consisting of about 60 pages of laws, which were then to be enforced by the Department of Revenue, which, in turn, created MED to oversee the transition. It would make sense for the Florida Legislature to enact a statute governing this area of law and to exempt participants from Criminal liability. Democratic Florida State Senator Jeff Clemins of Lake Worth attempted to present a Bill in the Legislature in 2013, but was unsuccessful. If the Constitutional Amendment is approved, I believe he will sponsor a Bill in the Legislature to support the Amendment.

The Florida Constitutional Amendment differs from Colorado in various ways. Colorado permitted a "caregiver system" without limitations to the number of patients. This led to unfavorable results: cases where caregivers became commercial businesses. The Colorado House Bill later limited a caregiver to five patients. The Florida Amendment limits caregivers to five patients. Colorado limited a Patient and his caregiver to grow six plants per patient. The Florida Amendment is silent as to the number of plants, and leaves this open to Florida's MED Agency and Doctor to determine quantities. This ambiguity may initially lead to caregivers taking absurd positions as to the number of plants they may grow per patient.

The Florida Amendment clearly states that patients and caregivers are "not subject to criminal law." The Colorado Amendment created an "affirmative defense," a procedure that persons arrested under marijuana-related circumstances could use as an exemption from criminal sanctions. This is also planned to circumvent the challenges faced in Colorado, as Colorado law was much more confusing in with respect to what acts could constitute criminalization. Florida also clarifies that Medical Marijuana Treatment Centers (MMTC), or simply, retailers who store, grow and infuse product, will be registered as commercial enterprises. This will create a "for profit" industry, statewide!

The passage of the Florida Constitutional Amendment, Article X § 29 will create an exponentially-growing Medical Marijuana industry in Florida. The big question is, where in Florida will marijuana stores, known as "Dispensaries" be permitted? Where will indoor and outdoor growing facilities be permitted? These are all important issues to anticipate this upcoming change in Florida's laws. My clients will benefit from my insights. Serious and well-funded prospective clients should seek my advice in preparing for a legalized Florida.

Jeffrey Feiler is a well-known Miami Criminal Lawyer who has been successfully defending the rights of clients for over 30 years with a reputation for getting impressive results.

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