Miami Beach has had a cloudy relationship with marijuana, and it might get cloudier— or clear out — soon.
Beach voters have supported legalization of medical marijuana for years, but after a 2016 Florida constitutional amendment passed, commissioners on multiple occasions passed laws limiting the number of dispensaries on the island. Now, the city could create a new fine for people who smoke in public.
Mayor Dan Gelber has proposed arresting and fining people for smoking pot on public property — like sidewalks, parks, and the beach. He wants to enforce a restriction already written into state law, though local authorities elsewhere have not devised a way to prosecute illegal marijuana possession. The state penalty for a first-degree misdemeanor is up to one year in jail and a $1,000 fine.
The Beach’s government might make its own rules to crack down on people smoking in public. Violators would face up to 60 days in jail and/or a $500 fine.
“There’s no ability to enforce marijuana laws right now,” Gelber told the Miami Herald.
On Wednesday, Gelber plans to bring his proposal to the City Commission for an initial vote. If passed, the measure would require a second vote before becoming law. The mayor said the plan arises from Miami-Dade State Attorney Katherine Fernandez Rundle’s recent announcement that the county will no longer prosecute minor marijuana cases. That decision stemmed from a new Florida law that legalized hemp, a plant similar to marijuana that has only trace amounts of THC, the chemical that produces a high.
Fernandez Rundle explained that there is no way to distinguish between hemp and marijuana based on smell, creating a gray area for enforcement in a state where recreational marijuana is illegal and hemp is legal. That gray area, Gelber argued, left Miami Beach in a bind if officers wanted to arrest an individual smoking outside a school or a park.
“It’s the O.K. Corral right now,” Gelber said.
Despite the comparison to the wild west, the mayor did not provide any specific examples of complaints about marijuana smoke or situations where police have not been able to act on a suspected pot smoker near a school. He added that Beach officers generally tell smokers to put out their marijuana joints if they’re consuming in public — the same way they tell people to pour out their drinks if they’re violating the city’s open-container law.
The Beach’s municipal prosecutor would handle the public pot smoking cases. Since the position was created in early 2018, most of the prosecutions have involved drinking in public, and a majority of the defendants were listed as homeless, according to a Herald analysis of public records.
In a memo attached to Gelber’s ordinance, City Attorney Raul Aguila wrote that the Beach seeks to balance the city’s pro-marijuana political leanings with residents’ quality of life, writing that Miami Beach is Florida’s “progressive mecca, leading the charge with progressive legislation in diverse areas ranging from LGBTQ rights to climate change to marijuana decriminalization.
“However, the city’s interest in maintaining a pleasant and healthful atmosphere for our tourists and residents requires the ability to prohibit noxious hemp and cannabis/marijuana smoke in public spaces frequented by children and families,” Aguila wrote.
Gelber’s law would also require new signs to be displayed at any businesses that sell any marijuana, cannabis or hemp products. If business owners don’t put up signs warning patrons that it is unlawful to smoke those products on public property, the proprietor could face a $1,000 fine, with repeat offenses bumping the amount up to $5,000 for the fourth violation in a 12-month period.
Legalization and complications
Beach voters favored legalization of medical marijuana years before voters agreed statewide. In 2013, 64% of voters in the city favored asking the state and federal government to allow medical cannabis — the measure garnered 1,000 more votes than the winning candidate in that year’s mayoral election.
In 2016, about 71% of Floridians — and Miami Beach residents — who voted were in favor of a constitutional amendment to legalize medical marijuana.
And while the 2017 bill signed into law by Gov. Rick Scott eventually legalized access to the drug in pill, oil, edible and vape form, it made smoking medical pot illegal.
The provision, commonly referred to as the “smoking ban,” was challenged in circuit court in July 2017. In his complaint, John Morgan, the Orlando personal injury attorney who represented marijuana patients and two advocacy organizations, argued the smoking ban altered the definition of “marijuana” and by banning smoking in public, implicitly authorized smoking marijuana in a private place. He asked the court to invalidate the law passed by the Florida Legislature because it violated the intent of the constitutional amendment passed by voters in 2016.
Shortly after his inauguration in January, Gov. Ron DeSantis held a press conference near Morgan’s home in Winter Park, where he declared that if lawmakers didn’t pass bills by March 15 allowing patients to smoke marijuana, he’d drop the state’s appeals of at least eight lawsuits — including one filed by Morgan.
The bills were passed and signed into law March 18, allowing medical marijuana patients to smoke their medication. The law clearly prohibits use on any form of public transportation, in any public place, at a workplace unless the employer permits, in state prisons, on school grounds or on a school bus (or any other school vehicle).
But there are no penalties written into law for smoking in public, and some state attorneys say they are putting a hold on prosecuting minor marijuana cases in the wake of the law legalizing hemp because of the impractical challenges cops and prosecutors would face having to prove that marijuana was actually marijuana.
Fernandez Rundle’s memo also requires there to be more than just a “marijuana smell test” for cops to stop suspects.
“Because hemp and cannabis both come from the same plant, they look, smell and feel the same,” Fernandez Rundle wrote in explaining the decision. “There is no way to visually or microscopically distinguish hemp from marijuana.”
Miami-Dade isn’t alone. Leon County State Attorney Jack Campbell in Tallahassee instructed staff in July to stop prosecuting marijuana possession, citing the state’s new hemp law and claiming labs can’t detect the difference between marijuana and hemp.
In Seminole and Brevard counties, the Orlando Sentinel reported, prosecutors say the added expense of sending marijuana to labs outside of Florida and obtaining expert witnesses to testify in court makes those options “prohibitive in all except the most serious of cases.”
Martin County Sheriff William Snyder told West Palm Beach TV station WPTV his agency “will not be making marijuana arrests,” and said efforts to pursue marijuana cases are “dead in the water” because of the inability to test for THC, the euphoria-inducing chemical in marijuana.
The memorandum from Miami Beach, however, says Fernandez Rundle’s decision “negatively impacts the city’s interests.”
“Providing a positive experience for both residents and visitors to the city is of paramount importance,” the memo states. “The public usage of illegal substances negatively impacts the city’s residents and visitors. It tarnishes the city’s image.”
While Miami Beach is one of the first municipalities to propose such an ordinance, local governments — Miami Beach included — have attempted to regulate marijuana use in their communities by putting restrictions on dispensaries.
In 2017, the Beach created zones in South, Middle and North Beach where dispensaries can open, with no more than three dispensaries allowed, one for each zone.
That year, Pasco County commissioners voted to cap the number of retailers that could sell medical marijuana at two and said they have to operate in industrial-zoned districts.
Another 2017 ordinance out of Hillsborough County relegated medical marijuana dispensaries to far-out parts of the county, away from residential areas, schools and liquor stores. A ordinance later that year reversed the position, and instead capped marijuana storefronts at one for every 44,800 residents in unincorporated Hillsborough, or 20 dispensaries.
However, a bill passed in Tallahassee that year saying that counties couldn’t restrict where medical marijuana was sold and that dispensaries must be regulated the same way pharmacies are. Beach commissioners then wanted to fast-track changes to zoning laws for pharmacies so that the previously proposed medical marijuana rules would be applied to dispensaries and pharmacies. Dunedin considered banning pharmacies in the city’s downtown area altogether.
For Gelber, his proposed ordinance is a necessary adjustment that evens out cops’ ability to enforce marijuana laws the same way they can enforce the public drinking ordinance. He said his plans gives police officers a way to take action when someone refuses to put out a marijuana joint or is smoking in a place near children.
“That may be fine unless it’s a simple marijuana case next to a school or in a park or in other places where children and families gather,” he said.
A previous version of this story misstated the penalty for smoking legal, medical marijuana in public. First degree misdemeanors are punishable by up to one year in jail and a $1,000 fine.