Here’s the little secret that neither side of the Amendment2 debate over medical marijuana is talking about: The Florida Legislature controls its fate.
You don’t hear it from opposition groups, who warn that legalizing medical marijuana will endanger children, spawn pot shops on every street corner and become the state’s next pill mill fiasco. That will happen only if the conservative Florida Legislature decides not to impose strict rules on who obtains the marijuana, who distributes it and under what conditions.
You don’t hear it from proponents, as the United for Care campaign rolls into college campuses, riding on the hopes of medically needy Floridians, and wishful recreational pot smokers.
Access to medical cannabis for those groups wouldn’t be easy, either, if the Legislature put in place a tightly controlled cultivation and dispensing system similar to one it adopted earlier this year when it legalized low-THC, high CBD strains of cannabis.
And what’s to stop lawmakers from doing any of this and more?
“Nothing,” said Jon Mills, former Democratic House speaker and a constitutional lawyer who wrote the amendment on the ballot before voters on Nov.4. “The Legislature can do anything that is not inconsistent with the Constitution.”
The proposed constitutional amendment, he said, prevents the Legislature from creating a barrier to access for patients diagnosed with nine particular debilitating ailments, or others who meet the requirements of the law. But he noted that it does allow lawmakers to establish a protocol for determining what diseases are eligible for treatment and to put in place rules that keep the public safe.
Mills and former state Sen. Alex Diaz de la Portilla, a Republican, headed up a bipartisan panel of law enforcement, medical and government experts who recently proposed 56 ideas — from doctor certification to treatment center access and product testing — that legislators should include when implementing the amendment.
“The Legislature could require package labeling with potency and dosage,” Mills said. “It could require all plants to be tested and certified, and it could place restrictions on distributors, on caregivers, on growers and doctors.”
The authors of the amendment not only assumed the Legislature would fill in the blanks of the amendment, he said, “we expected it.”
Creating new laws for a new cash-only pot industry is not a job that Florida’s Republican-controlled Legislature welcomes, however, and lawmakers have a history of delaying the implementation of constitutional amendments brought to them by citizens groups.
In 2002, for example, voters approved the amendment reducing class size in K-12 schools, but legislators phased it in over eight years rather than funding it quickly. In 2005, voters approved an amendment to allow Miami-Dade and Broward pari-mutuel facilities to operate slot machines, but legislators took two years before enacting it into law. And, in 2008, voters approved a constitutional amendment to provide tax exemptions for homeowners who make renewable energy improvements, but legislators didn’t implement it until 2013.
To thwart any potential delay in implementing Amendment2, the amendment’s authors gave the Florida Department of Health six months to write rules that must include issuing identification cards to patients and caregivers, developing medical marijuana treatment centers and determining treatment amounts to ensure the “safe use of medical marijuana by qualifying patients.”
Because the rules are likely to cost more than $1 million for the industry to implement, the Legislature will have to ratify them. And if the department fails to issue the rules in time, the amendment gives “any Florida citizen standing” to go to court and force the state to comply.
But legislators from both sides of the political aisle told the Miami Herald/Tampa Bay Times that if Florida voters pass Amendment2 with the 60 percent majority needed to become law, legislation is inevitable.
“Amendment2 clearly recognizes a role for the Legislature,” said Sen. Andy Gardiner, R-Orlando, incoming Senate president. “So if it does pass, the Legislature will be prepared to address, through the standard legislative process, the gaps in the law and to provide guidance to the various state agencies impacted by its passage.”
Like Gardiner, incoming House Speaker Steve Crisafulli, R-Merritt Island, opposes the passage of Amendment2 because he believes it’s too sweeping, but he agrees that the Legislature has the responsibility to make sure the product and the public is safe.
Crisafulli said it is too early to say what shape the Legislature’s efforts will take if Amendment2 passes, but “certainly we will be working on this if it were to be put into law.”
John Morgan, the Orlando trial lawyer who has injected $5 million of his own money into the amendment effort, said he is confident that legislators will honor the wishes of voters if they approve the amendment.
“I find Andy Gardiner and Steve Crisafulli, and the guys following them, to be reasonable,” he said. “I do have faith.”
Under the amendment, the Florida Department of Health becomes the official rule-making authority, and many of the rules will need legislative approval. Both sides note, however, that while the Legislature will control the implementation, the governor will set the tone — and wield a veto pen.
“If Rick Scott is the governor, the Legislature will likely propose an enhanced version of the Compassion Medical Cannabis Act,” said Rep. Matt Gaetz, R-Shalimar, referring to the so-called “Charlotte’s Web” bill passed last session to legalize a non-euphoric strain of medical marijuana to treat patients with cancer and seizures. “If Crist wins, that’s when things get interesting.”
Republican Gov. Rick Scott opposes Amendment2. His surgeon general personally lobbied against the current low-THC cannabis law. Scott said Friday during the Telemundo governor’s debate that he would follow the law if Amendment2 passes.
Crist, the former GOP governor turned Democrat who works for Morgan’s law firm, supports the amendment but has said he will oppose any effort to legalize marijuana for recreational use.
Opponents of Amendment2 speculate that Morgan will take an active role in implementing the medical marijuana law and be ready to pounce with a lawsuit if legislators pass regulations he opposes. It’s a claim Morgan denies.
“I don’t think there would ever be a challenge from me because if they try to bastardize this, free enterprise will come in and take over,” he said. “It won’t be my fight anymore.”
For example, he said, the rule-making process now under way over low-THC cannabis has drawn four lawsuits — not from pro-marijuana groups, but growers represented by law firms headed up by prominent Republicans.
Sen. Jeff Clemens, D-Lake Worth, who tried unsuccessfully for four years to persuade legislators to pass a medical marijuana law, is optimistic Florida can write rules for a new cottage industry while protecting the public.
“It’s the legislative duty to take the will of the people and fashion it into a law that protects us against the unscrupulous,” he said. “And the only way proper regulations could fail would be if the Legislature and the executive branch do nothing.”
If Amendment2 fails, however, the debate will have given new fuel to the issue and marijuana will be on the legislative agenda for years to come, said Sen. Rob Bradley, R-Fleming Island, one of the sponsors of the low-THC bill.
“This issue is not going away,” he said. “The Legislature has a role to play in regulating medical marijuana.”
Mary Ellen Klas can be reached at meklas@MiamiHerald.com and @MaryEllenKlas