Victory: Florida judge rules that ban on smokable marijuana is unconstitutional; automatic stay lifted
Last update: June 11, 2018
Last month, Leon County Circuit Court Judge Karen Gievers ruled that patients “have the right to use the form of medical marijuana for treatment of their debilitating medical conditions as recommended by their certified physicians.” Since then, Judge Gievers lifted an automatic stay put in place after the Department of Health appealed the decision.
This is a big win for patient rights in Florida. After voters overwhelmingly approved the medical marijuana constitutional amendment in 2016, the Florida Legislature passed a law to prevent patients from using smokable marijuana. As you may know, for some patients, smoking marijuana is more effective than vaping or using edibles.
People United for Medical Marijuana and Florida for Care, joined by patients Cathy Jordan, who has ALS, and Diana Dodsen, who has AIDS, challenged the legislature’s attempt to restrict patients’ options. Judge Gievers ruled that patients have the right to use medical marijuana in private under the constitution.
Medical marijuana implementation is underway
The Florida Department of Health has issued proposed regulations to establish the procedure to apply for Medical Marijuana Treatment Center (MMTC) licenses. The application is posted on the Office of Compassionate Use website, and applicants may begin completing applications for submission.
In order to become a licensed MMTC, each applicant is required to submit financial statements and to pass a background check. The law regulating Amendment 2 provides for 10 new licenses to be granted to growers in the state in addition to the seven that already exist. It would require another four licenses to be issued for every 100,000 patients added to the state’s medical marijuana registry and would allow growers to open 25 dispensaries, plus an additional five dispensaries for every 100,000 patients. Check out the regulations here.
To become a medical marijuana patient in Florida, you must be a Florida resident with a valid Florida I.D. as proof of residency; however, there is a provision for seasonal residents. Patients must obtain medical records from their primary care physicians describing their diagnosis, which must be a debilitating medical condition, and they bring these records to the marijuana evaluation appointment. All patients will be required to register with the Department of Health’s Office of Medical Marijuana Use. The Department of Health has issued a patients’ guide, which you can access here.
The future of medical marijuana is looking bright in the Sunshine State! For updates on Florida’s implementation of Amendment 2, be sure to subscribe to MPP’s alerts, if you haven’t done so already.
History of Florida’s medical marijuana law
Prior the passage of Amendment 2, Florida had a flawed law that allowed a limited group of patients to access marijuana that was low in THC (less than 0.8%) and high in CBD. The first dispensary of low-THC cannabis opened in Tallahassee on July 26, 2016. The legislature expanded this law in its 2016 session by passing HB 307, which would have allowed terminally ill patients to access other forms of medical cannabis. A summary of that law is available here.
Current marijuana laws in Florida
Possession of small amounts is illegal: Possession of 20 grams or less of marijuana is a misdemeanor punishable by a maximum sentence of one year imprisonment and a maximum fine of $1,000. Possession of more than 20 grams of marijuana is a felony punishable by a maximum sentence of five years imprisonment and a maximum fine of $5,000.
Sale or delivery qualifies as a felony: Sale or delivery within 1,000 feet of a school, college, park, or other specified area is a felony punishable by a maximum sentence of 15 years imprisonment and a maximum fine of $10,000. The sale of 25 pounds or less of marijuana is a felony punishable by a maximum sentence of five years imprisonment and a maximum fine of $5,000. However, the delivery of 20 grams or less is a misdemeanor punishable by a maximum sentence of one year imprisonment and a maximum fine of $1,000.
Medical marijuana permitted: An individual may register as a medical marijuana patient if his or her doctor certifies that the individual suffers from one or more of the following conditions:
- Crohn’s disease
- Parkinson’s disease
- Multiple sclerosis (MS)
- Medical conditions of the same kind or class as or comparable to those above
- Post-traumatic stress disorder(PTSD)
- Amyotrophic lateral sclerosis (ALS)
- A terminal condition diagnosed by a physician other than the qualified physician issuing the physician certification
- Chronic nonmalignant pain caused by a qualifying medical condition or that originates from a qualifying medical condition and persists beyond the usual course of that qualifying medical condition
Patients can purchase marijuana from registered marijuana dispensaries, called Medical Marijuana Treatment Centers (MMTCs).
Decriminalization policies adopted across Florida
Since June 2015, a new trend has taken root across Florida — several cities and counties have passed similar ordinances that give officers the discretion to replace arrests for possession of under 20 grams of marijuana with citations. These jurisdictions include Miami-Dade County, Tampa, Key West, and Orlando.
For example, Orlando decriminalized small amounts of marijuana by allowing police officers to give out citations instead of making arrests. If you possess 20 grams of cannabis or less or have marijuana paraphernalia, an officer can choose to give you a citation with a $100 fine if you're a first-time offender, or a $200 fine for a second offense. Repeat offenders can get a fine of up to $500 and a court appearance.
While this is a positive sign, in some jurisdictions, payment of the citation could still result in a criminal record, and some police departments have said that they will continue to arrest everyone in possession of marijuana, so caution should be exercised. For more information, please see our summary of the measures.
During the 2017 legislative session, State Rep. Guillermo Smith and Sen. Jeff Clements introduced bills that would decriminalize possession of small amounts of marijuana. By categorizing misdemeanor possession of marijuana as a noncriminal civil violation, these bills could eliminate the severe, disproportionate effects of a criminal offense. If passed, the bills would allow for adults with a “personal use quantity of cannabis” (one ounce or less) to face a civil penalty of no more than $100 or 15 hours of community service. However, the Senate Criminal Justice Committee “temporarily postponed” review of these bills. The bills could return later in the legislative session, but it is unlikely since only a few weeks of the session remain.
Timeline of marijuana policy reform in Florida
1978: The Florida Legislature enacted the Therapeutic Research Program, which was never operational. The program would have required federal permission and would have involved pharmacies dispensing marijuana to cancer and glaucoma patients. It was repealed in 1984.
1991: In Jenks v. State, the First District Court of Appeals allowed two seriously ill HIV/AIDS patients to raise a medical necessity defense to marijuana cultivation and drug paraphernalia charges. The court found that the defendants had met the burden of establishing the defense at trial and reversed the trial court’s judgment and acquitted the defendants.
1998: The same First District Court of Appeals upheld the medical necessity defense again in Sowell v. State, even after the legislature made a slight change to its Schedule I statutory language that was unfriendly to the use of medical marijuana.
2012: Simultaneous bills HJR 353 and SJR 1028, a constitutional amendment to allow medical marijuana in Florida, were introduced by Rep. Jeff Clemens (D – Lake Worth) and Sen. Larcenia J. Bullard (D – Miami) but never voted on. This marked the first time that medical marijuana bills were filed in both the House and the Senate.
2014: The “Compassionate Medical Cannabis Act of 2014” allows specified physicians to issue orders for certain patients, allowing them to use low-THC cannabis, which is defined as having no more than 0.8% THC and more than 10% CBD. It requires the Department of Health to create a registry of patients and to authorize five organizations to grow and dispense the cannabis. Requiring doctors to issue “written orders” rather than recommendations or certifications puts them at risk under federal law.
Advocates were able to get a medical marijuana constitutional amendment on the November 2014 ballot. Since it was a constitutional amendment, it needed 60% or more of the vote to pass. Unfortunately, it only got 57.6%.
2015: Local governments began opting to allow officers to cite, rather than arrest, adults found in possession of marijuana.
2016: Amendment 2 – which established a medical marijuana program – passed with a popular vote of 71%.
2017: In special session, the legislature passed SB8A to regulate Amendment 2, and implementation is underway by the Office of Medical Marijuana Use within Florida’s Department of Health.
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