The Florida Medical Marijuana Constitutional Amendment


On November 8th, 2016, the citizens of the State of Florida sent an overwhelming message to their legislatures: If you are not going to act on Medical Marijuana, we will. 71% of Florida voters voted yes on a proposed constitutional amendment legalizing the medical use of marijuana.

This constitutional amendment took the form of Article X § 29 of the Florida Constitution. This addition to the Florida Constitution does several things. Most importantly, it dictates that the medical use of marijuana by a qualifying patient is not subject to criminal or civil liability. [Art. X § 29(a)(1)]. Additionally, a physician shall not be subject to criminal or civil liability for issuing a qualifying patient a physician certification to treat with medical marijuana. [Art. X § 29(a)(2)].

In order to be a “qualifying patient,” one must suffer from a debilitating medical condition. This is defined in Art. X § 29(b)(1) of the amendment to mean cancer, glaucoma, HIV, AIDS, post-traumatic stress disorder (PTSD), 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 above, “for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”

Medical use of marijuana is defined as the acquisition, possession, use, delivery, transfer, or administration of an amount of marijuana not in conflict with rules to be promulgated by the Department of Health. [Art. X § 29(b)(6)]

Here is where things get tricky. The amendment requires several things of the Florida Department of Health. Art. X § 29(b)(10) requires the department to begin issuing eligibility cards within nine (9) months after the effective date of this section. The effective date of a Florida constitutional amendment is the following January after voters approve the amendment. So in this case, our effective date is January of 2017. This means that the Department of Health is required to begin issuing eligibility cards by September of 2017.

If the department does not do so, the amendment provides that a valid physician certification will serve as a patient ID card qualifying one to be a “qualifying patient” until the department begins the issuance of cards. [Art. X § 29(b)(10)].

The Florida Department of Health is also tasked with issuing reasonable regulations regarding the implementation of the medical marijuana constitutional amendment. The purpose of these regulations, pursuant to the constitutional amendment, is to ensure the “availability and safe use of medical marijuana by qualifying patients.” [Art. X § 29(d)].

In fact, the Department is required to do so no later than six (6) months after the effective date of this section, i.e. June of 2017. [Art. X § 29(d)(1)]. If they do not do so, any Florida citizen shall have standing to seek judicial relief to compel compliance with the Department’s Constitutional duties. [Art. X § 29(d)(3)]. You can bet that the Department of Health does not want to be flooded with lawsuits, which they would be, considering any citizen of the State of Florida now has “standing” to sue in Court to enforce the implementation of the medical marijuana constitutional amendment. Standing is an important concept, and it means that one has enough of a vested interest in the outcome of a lawsuit to be a party to it. And the constitutional amendment specifically dictates that all citizens of Florida have that standing, should the Department of Health not do its job in a timely fashion.

The Florida Legislature and House Bill 1397

So here we are in April of 2017, and the Florida legislature is debating on how they are going to implement the legislation. This will then dictate to the Department of Health how it should go about its constitutionally required duty.

Those of us who grew up in Florida, or have lived here for any length of time, know that it is a seemingly inherent trait of Floridian’s elected officials to screw up even the most simple of things. One would think that when a constitutional amendment passes by a mark of 71%, that our elected officials would get the hint that Floridians are indeed in favor of medical access to marijuana for those afflicted with medical conditions that would be helped by its use. However, this is Florida. So that means that our legislative representatives are going to screw this up.

Currently, the legislative screw up that we all know is coming is taking place in the Florida House of Representatives in the form of House Bill 1397 (HB 1397). Here is where we find evidence that Floridian’s elected representatives seem to care very little for the will of their constituents.

HB 1397 Has Not Yet Been Passed- Nor Should It

HB 1397 clearly subverts the will of the Florida voter in a number of ways.  For starters, HB 1397 limits what the Department can deem “medical use.” The bill indicates that medical use specifically does not include the possession or use of marijuana in a form for smoking, vaporizing, or in edible food form. In a nutshell, this bill bans virtually all of the common forms of consumption of marijuana. The only exception to this rule is that terminally ill patients are permitted to consume vaporized marijuana. [HB 1397 page 6 lines 131 through 141].

Other Debilitating Medical Conditions

The constitution lists out certain diseases/afflictions that qualify for medical marijuana use. It also has a provision that includes “other debilitating medical conditions of the same kind or class.” If a physician believes that one suffers from a debilitating medical condition of the same kind or class of those that are specifically listed, he or she can still prescribe medical marijuana in the event that the physician believes it would be helpful to his or her patient.

The House Bill does not appear to like that provision. In the event that a person’s physician believes a person qualifies under “other debilitating medical condition” provision, this is not good enough.

If a doctor believes a person qualifies under this provision, he or she must submit to the “applicable board” documentation supporting the opinion, documentation that establishes that marijuana is helpful in treating the condition, documentation that in the physician’s opinion, benefits of marijuana use would outweigh the health risks, and any other documentation requested by the board. [HB 1397 page 9-10 lines 223-234]. It is unclear if the board referenced is intended to be the board of medicine, the board of osteopathic medicine, or a board to be created by the Department of Health. For those that prefer to keep their medical conditions between themselves and the physician of their choice, sorry- but your doctor’s opinion is subject to review by a board of some sort. As a matter of fact, anyone who has been prescribed medical marijuana shall be entered into a registry containing that patient’s qualifying condition, dosage, amount, and form of consumption authorized. [HB 1397 page 11 lines 251 through 255].

Delay in Medical Relief

Under HB 1397 one should not expect quick relief from their debilitating medical condition. HB 1397 requires a doctor to treat a patient for a minimum of three (3) months prior the patient being eligible to register for medical marijuana use. [HB 1397 page 10 lines 235 through 238]. Additionally, the physician must evaluate an existing patient at least once every 90 days to determine if the patient still meets the criteria. [HB 1397 page 13 line 323 through 325].

Further Criminalization of Marijuana Use

While one might think that the legislature would believe that the voters of this state desired less criminalization of marijuana, and that those using medical marijuana would be free of criminal prosecution, there is a slew of new criminal law violations contained within HB 1397.

If its determined that a physician did not have a reasonable belief a patient is suffering from a qualifying condition and prescribes medical marijuana, the physician has committed a criminal law violation subjecting him or her to criminal prosecution. How the reasonableness of said physician’s belief is quantified is unclear. [HB 1397 page 41-42 lines 1022 through 1026].

If law enforcement determines someone has fraudulently represented a qualifying condition- this is a criminal law violation subjecting one to criminal prosecution. [HB 1397 page 42 lines1027 through 1031].

Consume prescribed marijuana “in plain view of or in a place open to the general public” and you have committed a criminal law violation and are subject to criminal prosecution under HB 1397. [HB 1397 page 42 lines 1033 through 1034].

Don’t have your medical marijuana registry identification card on you at the request of law enforcement? You’ve committed a criminal law violation and are subject to criminal prosecution under this proposed bill. [HB 1397 page lines 1043 through 1047].

Unlikely Proponents of the Bill

There is at least one group that believes this is good legislation- The Drug Free America Foundation. A representative of this organization stood before a committee in the Florida House and urged our elected representatives to implement this legislation. The Drug Free America Foundation spent over $10,000,000.00 opposing medical marijuana when it was on the ballot in 2014 and 2016. The fact that they are now advocating for the passage of HB 1397 should tell you all you need to know in terms of how well this bill represents the will of the 71% of Florida voters who voted in favor of the medical marijuana constitutional amendment.

Floridian voters spoke loud and clear in November regarding medical marijuana in Florida. The implementation of this mandate is now in the hands of our elected officials. Unfortunately, it feels like Floridians have seen this movie before.

The Key West Attorneys at Robertson & Hunter will keep you informed of this item as it moves through the legislative process. HB 1397 has not yet passed, and hopefully does not pass in its current form.