Marijuana Law, Policy, and Authority

UPDATE: Florida Passes Law Removing Ban on Smokable Marijuana

Posted by on Wednesday, March 20, 2019 in News, Updates.

Back in the fall of 2016, Florida voters passed Amendment 2, which legalized the medical use of marijuana. When Florida lawmakers passed legislation to implement the Amendment, they imposed a limitation on how patients could consume marijuana: namely, they defined “medical use” to exclude smoking of marijuana:

“(j) ‘Medical use’ . . . . does not include:

2. 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 seal, tamper-proof receptacle for vaping.”

Fl. Rev. Stat. 381.986.

As I blogged more than a year ago, one of the key sponsors of Amendment 2 sued the state to challenge this restriction. See Cases to Watch: Lawsuit Challenges Florida Law Banning Medical Use of Smokable Marijuana

Much has happened in the intervening year (or so) since I first (and last) posted about the case. For one thing, in May 2018, the judge in the lawsuit ruled that the legislature’s ban on smokable marijuana was unconstitutional. The judge based her ruling on two findings:

First, she held that the ban on smoking marijuana – at least in private places – was inconsistent with Amendment 2:

The Florida Medical Marijuana Amendment recognized the ability of the government to regulate smoking medical marijuana in public places. Subsection 29(c)(6) provides:

Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.

. . .

It is a traditional canon of construction ‘expressio unius est exclusio alterius’ [“when one or more things of a class are expressly mentioned others of the same class are excluded”]. Merriam-Webster Law Dictionary. This principle controls the Court’s interpretation of the Amendment. The ability to smoke medical marijuana [in private places] was implied in this constitutional language and is therefore a protected right.

People United for Medical Marijuana v. Florida Department of Health, ¶¶ 11-12.

Second, the judge held that the Florida legislature lacked the power to amend Amendment 2 by simple legislation:

Unlike other Constitutional Amendments6, no legislation is needed to implement the Amendment. Floridians specified that the legislature may enact related laws only if ‘consistent with’ the Amendment, and thus limited further legislative action in the area; ‘Nothing in this section shall limit the legislature from enacting laws consistent with this section’. . . .

Id. at 10. The full ruling can be found here People United for Medical Marijuana v. Florida Department of Health, but there is not much more to it (on point) than what I have excerpted above. The book discusses similar limitations other states have impose on state legislatures’ authority to amend marijuana ballot initiatives (see book pages 294-295).

Florida’s outgoing Governor Rick Scott appealed this ruling, but before the Florida appeals court could actually decide the appeal, Florida elected a new governor, Ron DeSantis. Governor DeSantis is more open to smokable marijuana, and the state legislature appears to have had a change of heart since 2017. So earlier this month, the legislature passed legislation (SB 182), which the Governor signed, removing the restriction on smokable marijuana. Coverage of this development can be found in the Tallahassee Democrat here and the Miami Herald here.

The new law can be found here. In relevant part, it removes the language quoted above excluding smokable marijuana from the definition of “medical use”:

“(j) ’Medical use’ . . . . does not include:

2. 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 seal, tamper-proof receptacle for vaping.”

SB 182, Section 1.

The legislation effectively moots the litigation.

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