In 2024, we may finally see adult use marijuana in Florida. This week, Smart & Safe Florida, a non-profit political organization, filed its ballot initiative, “Adult Personal Use of Marijuana“, with the Division of Elections to legalize adult use marijuana in Florida. Make it Legal Florida already unsuccessfully tried to get adult use on the ballot for this year. Notably, this current initiative is backed by Trulieve, the largest cannabis operator in the state. In any event, adult use marijuana in Florida by ballot initiative must first make it past the Florida Supreme Court.
Unlike many states, Florida initiative sponsors can submit petition signatures at any time. After 25% of required signatures have been collected and sponsors submit a ballot title and summary to the Secretary of State, the Secretary of State then submits the proposal to Florida Attorney General. The Florida AG then petitions the State Supreme Court for an advisory opinion on “the measure’s compliance with the single-subject rule, the appropriateness of the title and summary, and whether or not the measure ‘is facially valid under the United States Constitution.’” The single-subject rule means that the initiative can only address one subject, topic, or issue. And the Court’s review of the title and summary hinges on whether the initiative is “printed in clear and unambiguous language” pursuant to Florida law (the “Clarity Requirement”).
The “Adult Use of Marijuana” ballot initiative sponsored by Make it Legal Florida would have allowed people 21 and up to “possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason.” On its review, the Supreme Court struck down the initiative based on the Clarity Requirement, alone; it found that the summary of the initiative was misleading to voters and inaccurate in that it would lead voters to believe that federal cannabis laws would no longer apply, among other issues. We’ve seen a lot of this type of thing around the country, unfortunately. See: Cannabis Ballot Measures Are a Sucker’s Game.
A second bite at the apple Smart & Safe seems to have learned from Make it Legal Florida in that the main goal appears to just get the initiative language past the Supreme Court (and on to the ballot) by utilizing as little language as possible to form the Constitutional Amendment.
The initiative for adult use marijuana in Florida is only four pages long. Here is the summary:
Allows adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption by smoking, ingestion, or otherwise; allows Medical Marijuana Treatment Centers, and other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute such products and accessories. Applies to Florida law; does not change, or immunize violations of, federal law. Establishes possession limits for personal use. Allows consistent legislation. Defines terms. Provides effective date.
The initiative makes clear that only Florida civil and criminal penalties would not apply if the law passes, and that the initiative does not change current federal laws. Further, Medical Marijuana Treatment Centers (MMTCs) (the only entities that can make and sell cannabis products) would also be the ones to make and dispense adult use products (unless the state decides to license other entities, too). That’s pretty much it.
Smart & Safe first needs to net enough signatures to get the initiative to the Secretary of State. Of course, this initiative is receiving mixed reactions from the industry. It seems that Floridians badly want adult use cannabis in a regulated fashion. The only way to do that, though, may be through an initiative like this that has, overall, very little detail and that preserves the currently monopoly held by MMTCs. This type of program would barely open the door for industry expansion.
In the end, while Smart & Safe may end up passing muster with the Secretary of State and satisfying the Supreme Court on any challenge, voters may or may not get behind the future of adult use marijuana in Florida with such an abbreviated law. That’s especially with the Florida primary elections on the horizon. We will keep you posted.
Re-published with the permission of Harris Bricken and The Canna Law Blog
Hilary Bricken is an attorney at Harris Bricken, PLLC in Los Angeles and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at [email protected].
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