Current Florida Marijuana Laws| 0
Florida marijuana laws are evolving fairly quickly. For those who want an understanding of the current state of Florida marijuana law, please read the following digest of the current laws on medical marijuana in Florida and the current state of medical marijuana legalization in Florida. The article will also outline how to legally buy marijuana in Florida (once approved for sale by the five licensed Florida dispensaries):
Florida’s Marijuana Laws
Non-Medical Use of Cannabis
Florida’s drug control laws are set forth in ch. 893, F.S., entitled the Florida Comprehensive Drug Abuse Prevention and Control Act (Drug Control Act). The Drug Control Act classifies controlled substances into five categories, ranging from Schedule I to Schedule V. Cannabis is currently a Schedule I controlled substance, which means it has a high potential for abuse, it has no currently accepted medical use in treatment in the United States, and its use under medical supervision does not meet accepted safety standards. Cannabis is defined as:
All parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include “low-THC cannabis,” as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with s. 381.986.
The Drug Control Act contains a variety of provisions criminalizing behavior related to cannabis:
- Section 893.13, F.S., makes it a crime to sell, manufacture, deliver, purchase, or possess cannabis. The penalties for these offenses range from first degree misdemeanors to second degree.
- Section 893.135(1)(a), F.S., makes it a first degree felony to traffic in cannabis, i.e., to possess, sell, purchase, manufacture, deliver, or import more than 25 pounds of cannabis or 300 or more cannabis plants. Depending on the amount of cannabis or cannabis plants trafficked, mandatory minimum sentences of three to 15 years and fines of $25,000 to $200,000 apply to a conviction.
- Section 893.147, F.S., makes it a crime to possess, use, deliver, manufacture, transport, or sell drug paraphernalia. The penalties for these offenses range from first degree misdemeanors to second degree.
Florida’s Medical Necessity Defense
Florida courts have held that persons charged with offenses based on the possession, use, or manufacture of marijuana may use the medical necessity defense, which requires a defendant to prove that:
- He or she did not intentionally bring about the circumstance which precipitated the unlawful act;
- He or she could not accomplish the same objective using a less offensive alternative; and
- The evil sought to be avoided was more heinous than the unlawful.
- In Jenks v. State, the defendants, a married couple, suffered from uncontrollable nausea due to AIDS treatment and had testimony from their physician that they could find no effective alternative treatment. The defendants tried cannabis, and after finding that it successfully treated their symptoms, decided to grow two cannabis plants. They were subsequently charged with manufacturing and possession of drug paraphernalia. Under these facts, the First District Court of Appeal found that “section 893.03 does not preclude the defense of medical necessity” and that the Jenks met the criteria for the medical necessity defense. The court ordered the Jenks to be acquitted.Seven years after the Jenks decision, the First District Court of Appeal again recognized the medical necessity defense in Sowell v. State. More recently, the State Attorney’s Office in the Twelfth Judicial Circuit cited the medical necessity defense as the rationale for not prosecuting a person arrested for cultivating a small amount of cannabis in his home for his wife’s medical use.Compassionate Medical Cannabis Act of 2014The Compassionate Medical Cannabis Act of 2014 (CMCA) legalized a low tetrahydrocannabinol (THC) and high cannabidiol (CBD) form of cannabis (low-THC cannabis) for the medical use by patients suffering from cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms.The CMCA provides that a Florida licensed allopathic or osteopathic physician who has completed certain training and has examined and is treating such a patient may order low-THC cannabis for that patient to treat the disease, disorder, or condition or to alleviate its symptoms, if no other satisfactory alternative treatment options exist for the patient. To meet the requirements of the CMCA, each of the following conditions must be satisfied:
- The patient must be a permanent resident of Florida.
- The physician must determine that the risks of ordering low-THC cannabis are reasonable in light of the potential benefit for that patient.
- The physician must register as the orderer of low-THC cannabis for the patient on the compassionate use registry (registry) maintained by the Department of Health (DOH) and must update the registry to reflect the contents of the order.
- The physician must maintain a patient treatment plan and must submit the plan quarterly to the University of Florida College Of Pharmacy.
- The physician must obtain the voluntary informed consent of the patient or the patient’s legal guardian to treatment with low-THC
- Under the CMCA, DOH was required to approve five dispensing organizations by January 1, 2015, with one dispensing organization in each of the following regions: northwest Florida, northeast Florida, central Florida, southeast Florida, and southwest Florida. To be approved as a dispensing organization, an applicant must establish that it:
- Possesses a certificate of registration issued by the Department of Agriculture and Consumer Services for the cultivation of more than 400,000 plants;
- Is operated by a nurseryman;
- Has been operating as a registered nursery in this state for at least 30 continuous years;
- Has the technical and technological ability to cultivate and produce low-THC cannabis;
- Employs a medical director, who must be a physician and have successfully completed a course and examination that encompasses appropriate safety procedures and knowledge of low-THC cannabis; and
- Other specified
Implementation by DOH of the dispensing organization approval process was delayed due to litigation challenging proposed rules that addressed the initial application requirements for dispensing organizations, revocation of dispensing organization approval, and inspection and cultivation authorization procedures for dispensing organizations. Such litigation was resolved on May 27, 2015, with an order entered by the Division of Administrative Hearings holding that the challenged rules do not constitute an invalid exercise of delegated legislative authority. Thereafter, the rules took effect on June 17, 2015 and the 5 Florida dispensaries allowed under the CMCA were issued licenses in late 2015. Numerous legal challenges ensued, however, all of the 5 Florida dispensaries have asserted that they will begin growing the low-THC allowed under Florida marijuana law (with sales projected to begin between July-September, 2016).
The CMCA provides that it is a first degree misdemeanor for:
- A physician to order low-THC cannabis for a patient without a reasonable belief that the patient is suffering from a required condition; or
- Any person to fraudulently represent that he or she has a required condition to a physician for the purpose of being ordered low-THC cannabis.
The CMCA specifies that notwithstanding ss. 893.13, 893.135, or 893.147, F.S., or any other law that:
- Qualified patients and their legal representatives may purchase and possess low-THC cannabis up to the amount ordered for the patient’s medical use.
- Approved dispensing organizations and their owners, managers, and employees may manufacture, possess, sell, deliver, distribute, dispense, and lawfully dispose of reasonable quantities, as established by DOH rule, of low-THC cannabis. Such dispensing organizations and their owners, managers, and employees are not subject to licensure or regulation under ch. 465, F.S., relating to pharmacies.The Compassionate Use RegistryThe CMCA requires DOH to create a secure, electronic, and online registry for the registration of physicians and patients. Physicians must register as the orderer of low-THC cannabis for a named patient on the registry and must update the registry to reflect the contents of the order. The registry must prevent an active registration of a patient by multiple physicians and must be accessible to law enforcement agencies and to a dispensing organization to verify patient authorization for low-THC cannabis and to record the low-THC cannabis dispensed.
- Interaction of State Medical Marijuana Laws with Federal LawThe Federal Controlled Substances Act lists cannabis as a Schedule 1 drug with no accepted medical uses. Like the Florida’s Drug Control Act, the Federal Controlled Substances Act imposes penalties on those who possess, sell, distribute, etc. cannabis. A first misdemeanor offense for possession of cannabis in any amount can result in a $1,000 fine and up to year in prison, climbing for subsequent offenses to as much as $5,000 and three years. Selling and cultivating cannabis are subject to even greater penalties.Although state medical cannabis laws protect patients from prosecution for the legitimate use of cannabis under the guidelines established in that state, such laws do not protect individuals from prosecution under federal law should the federal government choose to enforce those laws. in recent years, however, the federal government appears to have softened its stance on cannabis.In August of 2013, the United States Justice Department (USDOJ) issued a publication entitled “Smart on Crime: Reforming the Criminal Justice System for the 21st Century.” This document details the federal government’s changing stance on low-level drug crimes announcing a “change in Department of Justice charging policies so that certain people who have committed low-level, nonviolent drug offenses, who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. Under the revised policy, these people would instead receive sentences better suited to their individual conduct rather than excessive prison terms more appropriate for violent criminals or drug kingpins.”On August 29, 2013, United States Deputy Attorney General James Cole issued a memorandum to federal attorneys that appeared to relax the federal government’s cannabis-related offense enforcement policies. The memo stated that the USDOJ was committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational ways, and outlined eight areas of enforcement priorities. These enforcement priorities focused on offenses that would result in cannabis being distributed to minors, cannabis sale revenues going to criminal gangs or other similar organizations, and cannabis being grown on public lands. The memo indicated that outside of the listed enforcement priorities, the federal government would not enforce federal cannabis-related laws in states that have legalized the drug and that have a robust regulatory scheme in place.
United for Care Florida Marijuana Petition
As detailed in a previous article here, the United for Care Florida marijuana petition is expected to be passed by Florida voters in November, 2016. Thereafter, the Florida legislature and the Florida Department of Health will have to enact further statutes and rules implementing the legal sale and use of medical marijuana in Florida. At a minimum, however, passage of the United for Care Florida marijuana petition means that the legal possession and use of medical marijuana by Florida citizens who are deemed “Qualifying Patients” under the law cannot be denied (so long as all legal requirements are complied with).
- For more detail on the current state of Florida marijuana law, please see the Senate Staff’s Analysis of current Florida medical marijuana bills located here (from which much of this article was derived).
- We here at the Florida Medical Marijuana Directory will keep you posted as Florida marijuana laws change. We want to be the best medical marijuana directory in Florida.