Florida Supreme Court Clears PUMM’s Initiative


Progress toward legal medical marijuana use in Florida took another step on Dec. 17, 2015, when the state’s supreme court issued an advisory opinion on the initiative petition on the subject. Florida’s voters will pass judgment in 2016 on the issue as framed by this petition, submitted by People United for Medical Marijuana, if PUMM can complete the task of gathering the necessary signatures by year’s end.

The proposed initiative would mandate that the Department of Health create procedures for the registration of Medical Marijuana Treatment Centers, and that the MMTCs be permitted to acquire, cultivate, possess, process, transfer, sell, distribute, dispense or administer marijuana. It would also authorize a range of “related products” to be sold through the MMTCs, including “food, tinctures, oils, or ointments” in which cannabis is an ingredient.

The qualifying patients for the receipt of such products will be those with a “debilitating medical condition” on a list of 10 such conditions specifically named in the petition or any condition “of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”

State law requires a financial impact statement as part of any such filing. The impact statement submitted to the attorney general in connection with this petition acknowledges that “additional regulatory costs and enforcement activities” associated with the newly enabled trade will exist even though fees “may offset some” thereof.


How Many Subjects

One of the issues addressed by the court’s opinion arises from Article XI, sect. 3, of the state constitution, an anti-logrolling rule, which provides that a proposed citizen initiative amendment “shall embrace but one subject and matter directly connected therewith.” The court could have created difficulties for the nascent medical marijuana industry if it had advised the attorney general that, for example, permission for the use of medical marijuana is one “subject” and the creation of a regulatory framework under the Department of Health is another.

The first bit of good news in the decision, then, is that the court made no such finding, concluding instead that provisions speaking to the specific role of the Department of Health have a “logical and natural oneness of purpose” with the underlying liberalization.

Relatedly, the court might have caused trouble by finding that the petition proposes to delegate legislative power to the Department of Health. Again, though, it reached the conclusion desired by the petitioners, that is, that the department “would not be empowered under this proposed amendment to make … primary policy decisions.”


The Impact Statement

Finally, there was the issue of the adequacy of the above quoted impact statement. Under state law, such statements must be no more than 75 words in length, and must be “clear and unambiguous.” Presumably the word-counting task was easy enough. The court also found in rather sweeping language that the statement was clear and unambiguous, inclusive of the unambiguous statement that the impact could not be quantified with precision. It relied on a 2008 precedent in which it had made clear that a “necessarily indefinite” cost can still be unambiguously described as such.

A similar measure for broadly defined medical marijuana was on the ballot in 2014, and received support from a majority of voters, but the size of the majority was not sufficient to satisfy the 60 percent requirement for a constitutional amendment.


Beyond Charlotte’s Web

Separately, the legislature in 2014 passed a narrowly tailored bill authorizing the use of low-THC cannabis as medicine for children suffering from epilepsy. The Department of Health has in place a so-called “Charlotte’s Web” licensing system as a consequence. That name represents an homage to Charlotte Figi, now nine years old, the girl whose story—of Dravet’s syndrome, resulting seizures, and symptomatic relief brought about by medical marijuana—was the subject of a CNN documentary in 2013.

The sponsor of that successful bill, Sen. Jeff Brandes, has also recently introduced a bill that would largely pre-empt the proposed constitutional amendment creating a more inclusive medical-marijuana system.

The widespread expectation in Florida is that the state will join the 23 other states that have made marijuana with normal levels of THC lawful, and that it will do so within 2016, when voter turnout will be energized, vis-a-vis the 2014 turnout, by the presidential campaign.

Christopher C. Faille, a Jamesian pragmatist, was one of the first reporters taking the hedge fund industry as a full-time beat, at the turn of the millennium, with HedgeWorld. His latest book, Gambling with Borrowed Chips, treats of common misunderstandings of the crisis of 2007-08.

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