{"id":584,"date":"2019-03-20T10:14:00","date_gmt":"2019-03-20T15:14:00","guid":{"rendered":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/?p=584"},"modified":"2019-03-20T10:14:00","modified_gmt":"2019-03-20T15:14:00","slug":"update-florida-passes-law-removing-ban-on-smokable-marijuana","status":"publish","type":"post","link":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2019\/03\/update-florida-passes-law-removing-ban-on-smokable-marijuana\/","title":{"rendered":"UPDATE: Florida Passes Law Removing Ban on Smokable Marijuana"},"content":{"rendered":"

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 \u201cmedical use\u201d to exclude smoking of marijuana:<\/span><\/p>\n

“(j) ‘Medical use\u2019 . . . . does not include:<\/span><\/p>\n

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.\u201d<\/span><\/p>\n

Fl. Rev. Stat. 381.986.<\/span><\/p>\n

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<\/a>.\u00a0<\/span><\/p>\n

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\u2019s ban on smokable marijuana was unconstitutional. The judge based her ruling on two findings: <\/span><\/p>\n

First, she held that the ban on smoking marijuana \u2013 at least in private places \u2013 was inconsistent with Amendment 2: <\/span><\/p>\n

The Florida Medical Marijuana Amendment recognized the ability of the government to regulate smoking medical marijuana in public places. Subsection 29(c)(6) provides:<\/span><\/p>\n

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.<\/span><\/p>\n

. . .<\/span><\/p>\n

It is a traditional canon of construction ‘expressio unius est exclusio alterius’ [\u201cwhen one or more things of a class are expressly mentioned others of the same class are excluded\u201d]. 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.<\/span><\/p>\n

People United for Medical Marijuana v. Florida Department of Health,\u00a0<\/span>\u00b6\u00b6<\/span> 11-12.<\/span><\/p>\n

Second, the judge held that the Florida legislature lacked the power to amend Amendment 2 by simple legislation:<\/span><\/p>\n

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’.\u00a0. . .<\/span><\/p>\n

Id. at <\/span>\u00b6<\/span> 10. The full ruling can be found here People United for Medical Marijuana v. Florida Department of Health<\/a>, but there is not much more to it (on point) than what I have excerpted above. The book discusses\u00a0similar limitations\u00a0other states have\u00a0impose on state legislatures\u2019 authority to amend marijuana ballot initiatives (see book pages 294-295). <\/span><\/p>\n

Florida\u2019s 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<\/a><\/span>\u00a0and the Miami Herald here<\/a><\/span>.<\/span><\/p>\n

The new law can be found here<\/a><\/span>. In relevant part, it removes the language quoted above excluding smokable marijuana from the definition of \u201cmedical use\u201d:<\/span><\/p>\n

“(j) \u2019Medical use\u2019 . . . . does not include:<\/span><\/p>\n

2. Possession, use, or administration of marijuana in a form for smoking,<\/s> 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<\/s>.\u201d<\/span><\/p>\n

SB 182, Section 1. <\/span><\/p>\n

The legislation effectively moots the litigation.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201cmedical use\u201d to exclude smoking of marijuana: “(j) ‘Medical use\u2019 . . . . does…<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[179,6,504,175,506,41,15,5,217,507,505,174,172,173],"class_list":["post-584","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-amendment-2","tag-cannabis","tag-desantis","tag-florida","tag-governor-sb182","tag-lawsuit","tag-marihuana","tag-marijuana","tag-medical","tag-morgan","tag-scott","tag-smokable","tag-smoke","tag-smoking"],"_links":{"self":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/584","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=584"}],"version-history":[{"count":2,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/584\/revisions"}],"predecessor-version":[{"id":587,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/584\/revisions\/587"}],"wp:attachment":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=584"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=584"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=584"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}