A Legal Review of the Marijuana Amendment

by Kemp Brinson

Support for medical marijuana in Florida is overwhelming. Amendment 2, which will be on the ballot in Florida in November, would legalize medical marijuana use in Florida, at least under state law. A 60% “yes” vote is required for passage, and recent public opinion polls range from 57%-88% in favor.

The Florida Sheriff’s Association, of which Polk County Sheriff Grady Judd is President, recently launched a campaign called “Don’t Let Florida Go To Pot“, which seeks to influence voters to vote “no” on Amendment 2. (Side note: www.dontletfloridagotopot.com is an unfortunate domain name choice. Someone needs a new marketing consultant.)

A similar effort was funded by St. Petersburg developer Mel Sembler called “Vote No on 2“. (Source: Tampa Bay Times). There is some cross-pollination between the two groups — for example, Sheriff Judd appears in a Vote No on 2 video.

The Amendment is championed by attorney John Morgan and the group he heads up, People United for Medical Marijuana. (Yes, that John Morgan.) His motivations are widely seen to be less about the merits and more about getting liberals to vote in droves in the mid-terms, to give Charlie Crist the best chance against Rick Scott. Regardless, the campaign gets both John Morgan and Grady Judd some press coverage. That’s a win-win if I’ve ever seen one.

I think the opponents of this are pretty scared it’s going to pass. Support for the principle of medical marijuana is high, pun intended, so arguing directly against the idea of medical marijuana is probably a loser. Instead, they are focusing on the legal details of the amendment. They claim it has some serious flaws. Do their claims hold up to legal scrutiny?

They point to four so-called “loopholes”. I have adopted the format and names used by the Vote No On 2 campaign to describe them:

  1. The “pot for anyone who wants it loophole” – this is the one Grady Judd calls “big enough to sail a battleship through.” (Source: The Ledger). The proponents of Amendment 2 say medical marijuana can only be used for “debilitating” medical conditions. The opponents say that if you read the text, you’ll see that it allows marijuana for most any medical condition imaginable.
  2. The “drug dealer loophole”. Amendment 2 allows medical marijuana users to receive help from “qualified caregivers”. The opponents say that “qualified caregivers” is defined so loosely that even convicted felons can become caregivers.
  3. The “teenager loophole”. Amendment 2 does not have a hard minimum age for someone to be a qualified patient. The opponents say this means children will be able to purchase marijuana without parental consent.
  4. The “pill mill loophole”. Amendment 2 does not have any location restrictions for medical marijuana treatment centers. The opponents say that this means, like “pill mills”, “pot docs” will be “in your face” and will crop up next to “schools, churches, and supermarkets.”

Legal language is not interpreted in a vacuum. To understand whether these accusations make sense legally, we have to take a look at the history of Amendment 2, in addition to the text. There has already been a Florida Supreme Court decision that explores the meaning of the language used in Amendment 2.

In order to place an amendment on the ballot, it must be described in a ballot summary. The law requires ballot summaries to be accurate. If they are not, the amendment cannot appear. Several groups challenged the amendment (some of the same players opposing it now), alleging that the ballot summary was inaccurate. These claims were rejected by the Court in an interesting 4-3 split. The Court’s opinion governs how the Amendment will be interpreted by trial courts if it passes.

There is an element of truth to all of the loophole accusations. But once the Florida Supreme Court decision is taken into account, in my opinion, at least three of the four “loophole” fears are substantially overstated.

These links will be handy if you want to follow along at home:

The Pot For Anyone Who Wants It Loophole

What does the text say?

The Amendment allows physicians to issue a certificate allowing someone to use marijuana if he has a “debilitating medical condition.” There is a definition of what constitutes a “debilitating medical condition”, and that’s the source of the “loophole”. The definition lists several specific conditions that qualify, and then closes with a catch-all phrase. The catch-all phrase defines “debilitating medical condition” to include “other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” That’s the part Grady Judd thinks you could sail a battleship through.

“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. (Amendment 2 – sec. (b)(1)).

The opponents say this would allow a physician to certify a patient to use marijuana for anything from generic “pain” and “stress” to “trouble sleeping”, i.e., things that most people would not call “debilitating”.

My own opinion is that this is, in fact, badly drafted language. It would have been better to more clearly describe what a “debilitating” condition is. On the flip side, as a lawyer who routinely encounters Americans with Disabilities Act (ADA) claims, trust me, defining what is and is not debilitating is a notoriously tricky thing to do.

Nonetheless, if one only considers the text in a vacuum, it appears that a condition does not have to be “debilitating” to fall under the definition of a debilitating medical condition. But there is more to it than that.

What did the Florida Supreme Court say?

The Florida Supreme Court has held, effectively, that this loophole does not exist. The majority of justices felt that the meaning of the catch-all phrase could not be interpreted without considering the plain meaning of the term “debilitating”. They also employed a doctrine known as “ejusdem generis”, which means that “where general words or phrases follow an enumeration of specific words or phrases, the general words are construed as applying to the same kind or class as those that are specifically mentioned.” (Opinion, p. 24).

For example (my example, not theirs) if a municipal ordinance says you can’t keep “chickens, ducks, geese, emu, or other birds” on your city property, the phrase “other birds” probably does not prohibit you from keeping a parakeet. “Other birds” really means “other birds similar to chickens, ducks, geese, and emu”.

The Court also looked to a different portion of Amendment 2, which defines “physician certification”, which says that, before issuing a certificate to use marijuana, the physician must determine that “in the physician’s professional opinion, the patient suffers from a debilitating medical condition, [and] that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient…” (Amendment 2 – sec. (b)(9)). 

The Court reasoned that the word “debilitating” would not have been used in the text at all if all that is required is that the benefits outweigh the risks. We must give meaning to each word used. (Opinion, p. 27)

Therefore, as things stand today, the Supreme Court has spoken. A doctor will not be able to issue a certificate for any old condition where the benefits of marijuana outweigh the risks. The doctor will only be able to issue a certificate for marijuana use if that condition is, in fact, “debilitating”.

Is this “loophole” a legitimate concern?

I don’t think so. I agree that there was an ambiguity in the original text, but the Supreme Court has interpreted that ambiguity away. I predict that, if the amendment passes, the regulations enacted to implement it will require physicians only to issue certificates to patients for conditions that are, in fact, debilitating.

There is an open question as to what “debilitating” means, exactly. Might that result in people getting certificates for things like “pain”, “stress”, and “trouble sleeping”? Yeah, probably so. Will some physicians’ standards be lower than others? Yeah, probably so. But I don’t foresee the free-for-all envisioned by the opposition coming to pass. Regardless of what you or I think the text says, the Supreme Court’s opinion, and therefore the law, is that the condition must be truly “debilitating”. I think we will see regulations and physician standards that address that.

So there is some ambiguity, but you aren’t going to sail a battleship through it, maybe a smoke-filled Cadillac, but not a battleship. And, as noted below, it would still be illegal to drive that Cadillac if you’re high.

If the opponents were being truly fair, they would point out that the amendment would allow medical marijuana use for “debilitating pain”, “debilitating stress”, and “debilitating insomnia.” It’s pretty obvious why they aren’t doing that. The public understands that “debilitating” pain, stress, and insomnia are real things, and, based on the polling, the public is probably not opposed to medical marijuana being used to alleviate those conditions.

The Drug Dealer Loophole

What does the text say?

Amendment 2 provides for “personal caregivers” who can be licensed to help patients consume medical marijuana:

““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.” (sec. (b)(7)).

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. 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:… 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.” (sec. (d)(1)(b) and preceding text).

The opponents say that this would make it easier to get a caregiver license than a driver’s license. They point out that the only requirement in the text is that the caregiver be at least 21 years old. Therefore, they argue, convicted felons, including drug dealers, will be able to become caregivers.

What did the Florida Supreme Court say?

Nothing directly. The Court glossed over the caregiver issue because its review was limited to a review of the accuracy of the ballot summary language, which did not go into detail about what a caregiver was. The Court characterized the opponents’ concerns about caregivers as “largely speculative”. (Opinion, p. 42).

The Court did address the question of whether general standards followed by physicians apply to the certification of medical marijuana users. The Court found that, even though the language of the amendment did not impose discipline on physicians who authorized marijuana use in inappropriate circumstances, the amendment does not mean that physicians are not subject to all the usual duties of professional conduct and discipline while certifying marijuana patients. It seems that the same logic would apply to caregivers — they are still subject to reasonable regulation.

Is this “loophole” a legitimate concern?

I don’t think so. This Constitutional Amendment does not set forth all the details of implementation of the program, nor was it intended to. It explicitly says that regulations concerning issuance of cards to “persons qualified to assist” should be enacted. It also explicitly says that “Nothing in this section shall limit the legislature from enacting laws consistent with this provision.” (sec. (e)).

It is well-understood that rights conferred by Constitutional or judicial fiat are subject to reasonable regulation. For example, as Grady Judd is fond of pointing out, the freedom of speech is not absolute. You can’t yell fire in a crowded theater. I foresee regulations promulgated imposing reasonable additional qualifications on caregivers who assist with the consumption of medical marijuana.

Could the amendment have been drafted better? Yes, absolutely. Much better. Is this a scary loophole that will allow convicted felons to go legit? I am very doubtful. All that has to happen is for the state legislature to pass a law or the Department of Health to promulgate a regulation that provides for reasonable restrictions and qualifications for someone to be a personal caregiver.  I think reasonable restrictions on who could become a caregiver would be upheld.

The Teenager Loophole

What does the text say?

Amendment 2 does not address the age of marijuana patients at all. Therefore, opponents argue, it will lead to children and teens being able to obtain marijuana, and to obtain it without parental consent.

What did the Florida Supreme Court say?

Nothing directly. Since age was not addressed in the ballot summary, there would have been no appropriate reason for the Court to address the age question in its opinion.

The Court did address the issue of physician immunity, which relates to a counter-argument addressed below.

Is this “loophole” a legitimate concern?

It is true that children may be able to obtain marijuana under Amendment 2, but the claim that they can do so without parental consent is probably false.

Allowing children to use marijuana, or at least certain marijuana-derived medicines, is surprisingly uncontroversial. The Republican-controlled legislature approved two different versions of a measure called Charlotte’s Web designed to allow precisely that, and the governor has said he would sign it into law. The drug allowed in that bill is a low-THC oil-based medication that cannot be smoked.

Consent is a different issue, entirely. Treating a minor, except in emergency situations, without the informed consent of a parent or legal guardian, is medical malpractice in most situations. “The law imposes a duty upon a parent to support a child until that child attains majority. In conjunction with that parental duty, the right to consent to medical treatment for a child resides in the parent who has the legal responsibility to maintain and support the child.” O’Keefe v. Orea, 731 So. 2d 680, 686 (Fla. 1st DCA 1998).

The Florida Sheriff’s Association says that “Although Florida law requires consent when treating minors, the amendment gives immunity (both civil and criminal) to physicians who issue a recommendation to use marijuana.” The Florida Supreme Court has rejected that argument, finding that:

“[A]s the proposed amendment does not explicitly repeal and is not completely inconsistent with existing medical malpractice or liability statutes, and does not mention the constitutional right of access to courts, we conclude that these provisions would remain in full effect if the amendment were to pass.” (Opinion, p. 39).

I think that future law or regulations are likely to address the issue by clarifying that parental consent is required for a physician to certify a minor to use marijuana, and I think those laws and regulations would be upheld. Even if that does not happen, I think that few, if any physicians will certify minors to use medical marijuana without parental consent out of fear of malpractice lawsuits under existing laws, which remain enforceable.

The Pill Mill Loophole

What does the text say?

The text of Amendment 2 does not address the locations where treatment centers can be located. The opponents say that this will lead to aggressive, “in your face” marketing and allow  “pot docs to set up shop next to schools churches and restaurants.”

What did the Florida Supreme Court say?

Nothing. Since treatment center location was not addressed in the ballot summary, there would have been no appropriate reason for the Court to address the issue its opinion.

Is this “loophole” a legitimate concern?

Quite possibly. Future legislation or local codes might address the issue of where treatment centers can be located, but this gets into tricky land use issues. Consider where liquor stores are located in your community. I think it is safe to assume that, due to the ability of treatment centers to argue that they are note a vice-type operation, and are instead a medical practice, treatment centers will have less onerous location restrictions than liquor stores, possibly much less. To be honest, I do not even know what restrictions are placed on liquor stores, but I don’t foresee any mechanism by which marijuana treatment centers will be any worse off.

I think if one is OK with the existence of these facilities, one is probably not all that concerned about where they are located, and the inversion of that is also probably true. So I’m not sure this “loophole” is going to be all that persuasive to many people. But, it’s a legitimate critique of the amendment, in my view. It does not restrict where treatment centers can be located. Restricting their locations by statute or local code, while possibly doable, may be tricky.

Vehicular Liability

An honorable mention for bogus arguments goes to Mark Wilson, president of the Florida Chamber of Commerce, who had this to say about the amendment in a December, 2013 press release:

“We find it ironic that plaintiff trial lawyer John Morgan, in a political attempt to legalize pot smoking, has proposed granting broad immunity to thousands from civil and criminal liability,” said Mark Wilson, President of the Florida Chamber. “Here’s his wording, ‘The medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability… ‘A physician licensed in Florida shall not be subject to criminal or civil liability…’ Under this amendment, if someone is authorized to smoke pot by a physician, and then gets into a car accident that is their fault, the pot smoker and the physician may be granted civil and criminal immunity. That’s the crazy world trial lawyer John Morgan creates with his pot smoking amendment. If the person at fault isn’t responsible, who will the victim sue?””

This is flat-out incorrect because the text of the amendment specifically disqualifies automobile use: “Nothing in this section allows the operation of a motor vehicle, boat, or aircraft while under the influence of marijuana.” (sec. (c)(3)). This is a classic case of not reading past the first few lines. No, the pot head who drives off and kills someone is NOT immune from prosecution or civil liability. Period.

But what about the physician who hands it out like candy? Or negligent/criminal acts that do not involve motor vehicles, like punching people in the face, public urination, or playing Phish albums too loud in public? Are they immune from prosecution or liability?

The amendment says that people are not liable for “the medical use of marijuana”, but not necessarily the act of doing something stupid afterwards.

Alcohol provides a useful comparison. I am not subject to civil or criminal prosecution for the recreational consumption of alcohol. I am thankful for this because the Siesta Key Spiced Rum (my favorite) and Sprite I had last night was well-deserved and quite refreshing. But if I had beaten my girlfriend afterwards, I might have gone to jail.

Nor is my doctor subject to liability if she prescribes me a Percoset for pain. But if I decide to go on a road trip while under its influence and run into a school bus, I’m in big trouble. The independent act of consuming alcohol or prescribing a drug is legal. Stupid decisions afterwards are not. The Chamber’s criticism was wrong. Rest assured, John Morgan is never going to put his might behind something that will limit who he can sue for negligence.

Be careful where you get your facts, people.

Conclusion

This Amendment could have been drafted better, and the Supreme Court opinion could have easily gone the other way. The opponents even managed to peel off one of the five so-called “liberal” justices to dissent, Justice Labarga, and it is his dissenting opinion that most closely reflects how I view the case. I do not think the Court should have gone so far in the direction of interpreting what this amendment means in the context of evaluating the ballot summary. Such inquiries are best left to cases and controversies on the merits that arise under the amendment. I think the first loophole was a spot-on criticism before the Supreme Court opinion, and the Supreme Court should not have answered the interpretive question prospectively.

However, the Court went there. Since they did, their decision now has the force of law. That decision will be cited to and followed if the amendment passes, and I think it effectively plugs most of the loopholes asserted by the opposition.

I am not an advocate for this amendment, and did not even consider writing about it until a friend asked me for my thoughts on the legal aspects. I have never tried marijuana, and I don’t intend to — but I also don’t have any debilitating medical conditions. I haven’t even decided if I’m going to vote for the amendment or not, although I’m leaning towards “yes”.

When I make a final decision, my vote will be based on facts, not propaganda. I encourage you to engage in the same inquiry.

 

UPDATE 6/4/2014: The Vote No on 2 Campaign has graciously responded to this post, and I anticipate responding to their counter-argument as well. You can view all of my articles on this topic in the archive.