Florida Medical Marijuana – Proposed Laws and Regulations on Production, Possession and Use

For more information concerning Florida’s proposed medical marijuana laws, please review the information available HERE (www.flamedicalmarijuanalawyer.com) and/or contact Joel Ewusiak at joel@erlitigators.com.

We have been closely monitoring – and will continue to closely monitor  – the legalities of medical marijuana production, possession and use in the state of Florida. If the proposed medical marijuana bills are passed by the Florida legislature or if Florida voters pass the proposed constitutional amendment for medical marijuana, we will be ready, willing and equipped to provide legal advice and assistance to individuals, small businesses, and corporations wishing to cultivate, prescribe and distribute medical marijuana in the state of Florida and/or who need legal representation in medical marijuana disputes with Florida municipalities, the Florida Department of Health and Florida state agencies.  See HERE (www.flamedicalmarijuanalawyer.com)

On January 27, 2014, the Florida Supreme Court approved proposed ballot language for a proposed amendment to the Florida constitution that would provide for the production, possession and use of medical marijuana.   The Florida Supreme Court resolved a dispute over the proposed ballot language.  The dispute primarily focused on whether the definition of “debilitating medical condition” was misleading and would effectively allow a physician to prescribe marijuana to virtually anyone with minor aches and pains.  The Florida Supreme Court, in a 4-3 decision, determined that the ballot language, including the definition of “debilitating medical condition,” will fairly inform voters of the chief purpose of the amendment (i.e., to allow for the production, possession and use of medical marijuana) and will not mislead voters, who will be able to cast an intelligent and informed vote as to whether they want a provision in the state constitution authorizing the medical use of marijuana, as determined by a licensed Florida physician, under Florida law.  

The Florida Supreme Court determined that it is reasonable to construe the amendment as being limited to debilitating medical conditions that require the professional opinion of a physician to diagnose, and that as to each debilitating condition, the benefits of prescribing marijuana as a treatment must outweigh the health risks.   The Court reasoned as follows:

The common definition of “debilitating,” based on these authorities, is therefore similar under both medical and lay dictionaries. While the opponents suggest that the proposed amendment would authorize the “unfettered” use of marijuana to treat more conditions than are commonly thought of as “debilitating,” the popular and common-sense meaning of “debilitating” – though not requiring the condition to be as “serious and devastating” as the opponents state – still requires that the medical condition cause impaired strength, weakness, or enfeeblement. In other words, a physician must first make a professional determination that the patient‘s medical condition causes impaired strength, weakness, or enfeeblement in order to consider issuing a physician certification consistent with the proposed amendment, which limits the amendment‘s scope.

Now that the Florida Supreme Court has determined that the ballot language is permissible, Florida voters will decide whether to pass the amendment in November 2014.   Under Florida law, 60% of the voters must approve of the amendment.   If the amendment is approved, then the Florida Department of Health (“the Department”) will be required to implement regulations for the cultivation and distribution of medical marijuana in the state of Florida.  

Under the proposed amendment, the Department will have six (6) months to create the regulations, namely, procedures for the issuance of qualifying patient identification cards and personal caregiver identification cards, procedures for the registration of “Medical Marijuana Treatment Centers” (defined in the amendment) that include procedures for the issuance, renewal, suspension, and revocation of registration, and standards to ensure security, record keeping, testing, labeling, inspection, and safety, and regulations that define the permissible amounts of marijuana for use by qualifying patients. No later than nine months (9) after the effective date of the amendment,  the Department will then begin registering “Medical Marijuana Treatment Centers,” and issuing identification cards to qualifying patients and personal caregivers.  

Notably, if the Department delays the implementation process, then the proposed amendment provides for a civil action against the Department to compel it to comply with its duties to implement the regulations.

For more information concerning Florida’s proposed medical marijuana laws, please visit HERE (www.flamedicalmarijuanalawyer.com) and/or contact Joel Ewusiak at joel@erlitigators.com.

The full text of the proposed constitutional amendment, up for vote in November 2014, is set forth below:

ARTICLE X, SECTION 29. Medical marijuana production, possession and use.—
(a) PUBLIC POLICY.
(1) The medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability or sanctions under Florida law except as provided in this section.
(2) A physician licensed in Florida shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section.
(3) Actions and conduct by a medical marijuana treatment center registered with the Department, or its employees, as permitted by this section and in compliance with Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law except as provided in this section.

(b) DEFINITIONS. For purposes of this section, the following words and terms shall have the following meanings:
(1) ―”Debilitating Medical Condition” means cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn‘s disease, Parkinson‘s disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.
(2) ―”Department” means the Department of Health or its successor agency.
(3) ―”Identification card” means a document issued by the Department that identifies a person who has a physician certification or a personal caregiver who is at least twenty-one (21) years old and has agreed to assist with a qualifying patient‘s medical use of marijuana.
(4) ―”Marijuana” has the meaning given cannabis in Section 893.02(3), Florida Statutes (2013).
(5) ―”Medical Marijuana Treatment Center” means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their personal caregivers and is registered by the Department.
(6) ―”Medical use” means the acquisition, possession, use, delivery, transfer, or administration of marijuana or related supplies by a qualifying patient or personal caregiver for use by a qualifying patient for the treatment of a debilitating medical condition.
(7) ―”Personal caregiver” means a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient‘s medical use of marijuana and has a caregiver identification card issued by the Department. A personal caregiver may assist no more than five (5) qualifying patients at one time. An employee of a hospice provider, nursing, or medical facility may serve as a personal caregiver to more than five (5) qualifying patients as permitted by the Department. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use by the qualifying patient.
(8) ―”Physician” means a physician who is licensed in Florida.
(9) ―”Physician certification” means a written document signed by a physician, stating that in the physician‘s professional opinion, the patient suffers from a debilitating medical condition, that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient, and for how long the physician recommends the medical use of marijuana for the patient. A physician certification may only be provided after the physician has conducted a physical examination of the patient and a full assessment of the patient‘s medical history.
(10) ―”Qualifying patient” means a person who has been diagnosed to have a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card. If the Department does not begin issuing identification cards within nine (9) months after the effective date of this section, then a valid physician certification will serve as a patient identification card in order to allow a person to become a ―qualifying patient‖ until the Department begins issuing identification cards.

(c) LIMITATIONS.
(1) Nothing in this section shall affect laws relating to non-medical use, possession, production or sale of marijuana.
(2) Nothing in this section authorizes the use of medical marijuana by anyone other than a qualifying patient.
(3) Nothing in this section allows the operation of a motor vehicle, boat, or aircraft while under the influence of marijuana.
(4) Nothing in this law section [sic] requires the violation of federal law or purports to give immunity under federal law.
(5) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any place of education or employment, or of smoking medical marijuana in any public place.
(6) Nothing in this section shall require any health insurance provider or any government agency or authority to reimburse any person for expenses related to the medical use of marijuana.

(d) DUTIES OF THE DEPARTMENT. The Department shall issue reasonable regulations necessary for the implementation and enforcement of this section. The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients. It is the duty of the Department to promulgate regulations in a timely fashion.
(1) Implementing Regulations. In order to allow the Department sufficient time after passage of this section, the following regulations shall be promulgated no later than six (6) months after the effective date of this section:
a. Procedures for the issuance of qualifying patient identification cards to people with physician certifications, and standards for the renewal of such identification cards.
b. Procedures for the issuance of personal caregiver identification cards to persons qualified to assist with a qualifying patient‘s medical use of marijuana, and standards for the renewal of such identification cards.
c. Procedures for the registration of Medical Marijuana Treatment Centers that include procedures for the issuance, renewal, suspension, and revocation of registration, and standards to ensure security, record keeping, testing, labeling, inspection, and safety.
d. A regulation that defines the amount of marijuana that could reasonably be presumed to be an adequate supply for qualifying patients‘ medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient‘s appropriate medical use.
(2) Issuance of identification cards and registrations. The Department shall begin issuing qualifying patient and personal caregiver identification cards, as well as begin registering Medical Marijuana Treatment Centers no later than nine months (9) after the effective date of this section.
(3) If the Department does not issue regulations, or if the Department does not begin issuing identification cards and registering Medical Marijuana Treatment Centers within the time limits set in this section, any Florida citizen shall have standing to seek judicial relief to compel compliance with the Department‘s constitutional duties.
(4) The Department shall protect the confidentiality of all qualifying patients. All records containing the identity of qualifying patients shall be confidential and kept from public disclosure other than for valid medical or law enforcement purposes.

(e) LEGISLATION. Nothing in this section shall limit the legislature from enacting laws consistent with this provision.

(f) SEVERABILITY. The provisions of this section are severable and if any clause, sentence, paragraph or section of this measure, or an application thereof, is adjudged invalid by any court of competent jurisdiction other provisions shall continue to be in effect to the fullest extent possible.

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