Archives for September, 2014

Amendment 2 brings Reason and Common Sense to Cannabis Laws

Amendment 2 brings Reason and Common Sense to Cannabis Laws – by Norm Kent

The voters of Florida have an opportunity on November 4th to amend our constitution, and make cannabis legally available to patients with debilitating medical conditions. It’s a cause you should support, because it is an initiative which heals rather than harms, helps rather than hurts.

Long overdue, after four decades of criminal prosecutions, passage of this amendment will put your use of marijuana in the hands of physicians you can trust. The strategic and glorious part of this proposal, if passed, is that it will allow patients to acquire their medicine with a written certification from their doctor, just as you get prescriptions for other private, medical needs.

Amendment 2 allows The Florida Department of Health, not the Florida Department of Law Enforcement, to determine who may lawfully access cannabis. It means that instead of getting arrested first and having to assert a medical necessity defense later, you will have a lawful right to possess and consume marihuana without the fear of criminal prosecution.

Regrettably, in the course of any campaign, fictions are infused and real facts gets distorted. No striking example is more glaring than the misleading and misguided advice being disseminated by attorney Ian Christensen, his ‘Health Law Services’ law firm, and his non-lawyer legal administrator, Chris Ralph. Collectively, they are negligently, carelessly, and irresponsibly giving out the false legal advice that marijuana is already legal in Florida.

Abraham Lincoln once wrote that ‘some people are thought fools and remain silent. Others speak and remove all doubt.’ Marijuana is not legal today in the state if Florida in any shape, size or form. Possess it or consume it, cultivate it or distribute it, and you can be arrested, jailed, and criminally prosecuted. Chapter 893 of the Florida Statutes, governing the consumption and sale, possession and ownership of drugs, is in full force and effect. Mr. Christensen needs to go back to law school. The advice he is giving would make him flunk Criminal Law 101.

The best way to modify Florida’s tough and restrictive drug laws is to support and pass Amendment 2. This law will not only allow a citizen to possess marijuana medicinally, you will be able to purchase it from lawfully established medical marijuana distribution centers, established, licensed and sanctioned by the state of Florida. If a cop saw you with a joint, you would not have to call a bondsman from a jail. You would simply hand the cop a medical certification card from your wallet.

The decisions you make over the treatments you choose for your health ought to be made by you and your physicians, not your police department and juries. Amendment 2 will make that happen for marijuana. It will provide access to medical marijuana without the fear of arrest and incarceration.

Few people know more about this subject than I do. It was over a quarter of  a century ago when a judge acquitted my client, Elvy Mussika, a Hollywood grandmother, of cultivating marijuana in her backyard, based on a defense of ‘medical necessity.’ Yes, she won, but at what price? First, she had to go to jail and risk a trial to secure her freedom. All she wanted was to treat her glaucoma.

Last year, Manatee County deputies raided Cathy Jordan’s home, seizing and destroying the small amount of cannabis she was cultivating to use medically for Lou Gehrig’s disease. A thoughtful prosecutor declined prosecution, acknowledging that Cathy was living with a debilitating condition; that medical cannabis helped arrest.  But her freedom was won only after she was faced with an arrest.

Under existing Florida law, and with a less enlightened prosecutor in charge, Cathy Jordan and her caregiver and grower- her husband Robert-  could still be arrested and face charges of cultivation, in violation of Florida statutes.  That makes no sense, personally, politically, or philosophically.

If we pass Amendment 2, Florida citizens will end that insanity. Uniform law, not individual discretion, will govern the debate. Pass Amendment 2 and your physician, not the county prosecutor,  will determine who gets to use medical cannabis in Florida.

Norm Kent is the Chair Emeritus of the Board of Directors of the National Organization for the Reform of Marijuana Laws (NORML)

No Buds In Boca? – Another Florida City Puts the Brakes On Pot Dispensaries

It appears more Florida cities are adopting a cautious and restrictive approach to the possibility that medical marijuana dispensaries could soon be coming to the state.

The city of Boca Raton has a reputation for being upscale and affluent, so it should come as no surprise that the city leaders are not exactly welcoming pot businesses with open arms.  The city has proposed implementing a one year moratorium on medical marijuana dispensaries and grow operations in order that regulations can be crafted to adequately control those businesses.

During that time, no businesses could open in the city that sell or grow marijuana.  But the city didn’t stop there.  They are also considering making the ban apply to business that offer supplies or educational materials related to medical cannabis.  Such a broad prohibition could be used to keep out physicians who recommend medical pot and retailers who sell items such as pipes, vaporizers, or even books.

Coconut Creek recently approved a similar measure and Boynton Beach is considering one as well.  So, the number of spots were medical pot might be available in South Florida are growing smaller each day.

These moves serve as another reminder that finding a suitable location for a medical marijuana business may be a more difficult task than many would imagine.


Florida Cities Act to Ban Medical Marijuana Despite Pending Voter Initiative

I’ve written previously about the threat that local ordinances and zoning regulations pose to the introduction of Medical Marijuana in Florida.  That trend is now continuing with more cities getting in on the act.

The town of Bonita Springs has directed its City Attorney to begin drafting an ordinance that would impose a ban on the smoking of medical marijuana in public and would place strict zoning limitations on where medical marijuana dispensaries may be located.

The anti-pot forces in Bonita Springs aren’t alone.  Just a day earlier, the nearby city of Naples began the process of approving a law the would impose an outright ban on medical cannabis dispensaries.  The law would also prohibit the growing or sale of medical pot in the city.

The voter initiative which would permit the medical use of marijuana in Florida, if passed on November 4th, would create a constitutional right of citizens to access that medication.  So, it is likely that a complete ban on reasonable access to cannabis, like those proposed in Naples, would draw legal challenges.  However, the city of Naples is one step ahead of the game and is working on a backup plan in the event that their total ban is found to be unconstitutional.  In that instance, the City would require cannabis dispensaries to obtain special variances from the City and would limit their location to one small area of the city.

Let The Lawsuits Begin! Florida Firm Sues Over Medical Marijuana Lottery System

As Florida begins to formulate its system the distribution of medical marijuana, it is virtually certain that not everyone who is interested in getting into the business will get a seat at the table.  There will only be a limited number of licensed growers and dispensaries, so it is inevitable that some people will end up being shut out.  What will surely follows is lawsuits from the people who find themselves excluded from the state’s new “green rush”.

The first of these legal challenges was launched this week by a company known as Costa Farms, who has sued the Florida Department of Health over its intention to use a lottery system to award the few licenses being offered under the State’s recent “Charlotte’s Web” bill.  As you may recall, that law allows the State to license five dispensing organizations who are charged with the cultivation and distribution of a “low-THC/high-CBD” strain of cannabis.  If more than five businesses apply for those licenses, the Department of Health has proposed to use a lottery system to select the recipients.

Despite the fact that the lottery has not even occurred yet, Costa Farms has elected to sue and is arguing that the licenses should be distributed based on the qualifications and capabilities of the applicants, not merely the luck of the draw.

As we have seen in other states, the implementation of a medical marijuana system is never without controversy and legal challenges.  Florida is proving to be no exception to this rule.

Counting Chickens Before They Hatch: Making Sure Amendment 2 Passes is Job #1

At the beginning of the 2007 college football season, the University of Michigan Wolverines were ranked #5 in the nation and were considered to be contenders for the National Championship.  Their season was slated to begin with an easy game against a lesser opponent;  the Appalachian State Mountaineers.  It was to be a walk in the park for Michigan.  The Mountaineers hailed from a small college in the mountains of North Carolina and they didn’t even play in the same league as Michigan.  To put it mildly, nobody gave the Mountaineers a snowball’s chance in hell as they entered the stadium. It was a foregone conclusion that Michigan would roll to an easy victory.

But then it happened.

The underdog Mountaineers fought and clawed their way to a victory, which was sealed by a blocked field goal that will go down in college football history.  Nearly 110,000 people stood in disbelief as they witnessed the unthinkable.  Their mighty Wolverines had fallen to the most unlikely of contenders.

One thing that I have observed over and over again during the past few months is a pervasive air of confidence amongst potential cannabis entrepreneurs.  Everyone is assuming that Amendment 2 will pass easily and people are behaving as if the election is a mere formality.  They are planning their victory celebrations before the game has been played.  They are acting like the 2007 Michigan Wolverines.

So, I wanted to write this column to remind people that elections are won by votes, not opinion polls or overconfident forecasters.  Remember, if Amendent 2 fails to meet the daunting 60% vote threshold that is required for ballot initiatives in Florida, then nearly everything we have discussed on this site is moot.

Recent polling has indicated that public support for medical marijuana may be waning slightly.  A new PPP voter poll showed approval for Amendment 2 at only 61% (just a single percentage point over what is required).

Additionally, the forces opposed to medical cannabis have started to mobilize and are doing their best to erode support.  This past week saw the dissemination of an unflattering video of Amendment 2 backer, John Morgan, which is being widely circulated in an effort to discredit the amendment.  Seven former Florida Supreme Court Justices authored an editorial condemning Amendment 2 and calling for voters to “just say no”.  And on top of all that, a 1.6 million dollar ad campaign opposing medical marijuana is about to be launched.

So, if you want to see medical marijuana approved in the State of Florida, now is not the time to sit on your hands.  If you are interested in opening a medical marijuana business in this state, your very first investment should be a contribution to the campaign effort.

Make a donation to United for Care.

Talk to your friends and neighbors.  Educate them about the issue and encourage them to vote.

Make sure your voter registration is current.

Request an absentee ballot if you might have difficulty making it to the polls on Nov. 4th.

Put a sign in your yard and a sticker on your car.

Stop planning the victory parade and start fighting the battle!


Local Zoning Rules Present Possible Obstacles for Florida Medical Marijuana Businesses

When examining the requirements for opening a medical marijuana business in the State of Florida (assuming Amendment 2 is approved in November), one of the most overlooked hurdles is one which is closest to home:  local zoning regulations.

Cities and Counties are given broad authority to enact zoning rules which dictate the areas and locations that certain businesses can operate in.  It’s these rules that prevent a tire shop from opening in the middle of a residential neighborhood, or an adult entertainment business from opening in an upscale shopping district.  Through the use of zoning rules, Cities are able to establish and maintain certain characteristics for different areas, and by the same token, they are also able to create burdens and limitations on businesses they view as “less than desirable”.

The concept of NIMBY (Not In My Back Yard), is one that is adopted by many Cities when they choose to make life difficult for unfavored business types.  As a potential Medical Marijuana business operator, this is something you must be keenly aware of as medical cannabis is still viewed negatively by many local politicians.  You may find what you believe to be the “perfect spot” for your dispensary or grow operation, but the City where that spot is located may have a differing opinion.

A number Cities in the State of Florida are already beginning to address this issue:

In Coconut Creek, the City Commission recently passed a six month moratorium on the growing or selling of medical marijuana in all areas of the City.  The City did so to allow for time to study how best to locate those businesses.  After the six month moratorium ends, the City will have a right to renew it for another three months, so it could last up to 9 months.  In the meantime, no medical marijuana business can operate in any portion of Coconut Creek.

In Cocoa Beach, the City has taken more explicit steps and has gone as far as establishing zoning regulations.  It should come as no surprise that the regulations leave very few locations where medical marijuana businesses can locate.  If you click here, you can view a map of the new zoning scheme.  The areas that are shaded green are the only ones where a cannabis business can be located.  As you can see, they are only a tiny fraction of the City.  Anyone trying to open a business outside of those tiny zones will be out of luck.

As the vote on Amendment 2 approaches, it is certain that more and more Cities and Counties will follow suit and adopt rules that restrict where these businesses can be located.  So, even if you are able to qualify for a State license, setting up shop may not be as easy as just finding a storefront and signing a lease.

Navigating the zoning requirements for a specific area is another reason you should have a qualified consultant by your side.  At Florida Cannabis Consultants, we have experience in not only researching and explaining zoning laws, but have also successfully challenged zoning regulations that were too restrictive.

Could Being a Medical Marijuana Patient in Florida Cost You Your Job?

A lot of what we cover on this website is aimed at people looking to break into the medical marijuana business.  But, let’s not forget the real reason why medical marijuana exists … to help patients who need it to maintain their health and well being.  If Amendment 2 passes and Florida begins to allow those patients to have legal access to the medicine they require, there may still be hurdles and obstacles they will face.

In many States that have already approved medical cannabis, patients are sometimes being forced to choose between their medicine and their jobs.  A multitude of large companies across the nation have maintained their strict “drug free workplace” policies and have terminated employees for positive cannabis tests, despite the fact that those employees had the legal right to consume marijuana under state law.

For instance, there was the much publicized case of Michael Kelly Boyer, who received media coverage as the first person in line to buy legal cannabis in Spokane, Washington.  The next day, he was fired from his job at Kodiac Security.  The incident was fodder for plenty of late night TV jokes, but finding yourself unemployed for conduct that is 100% legal is no laughing matter.

Florida patients may find themselves in a similar quandary.  One distinction that may assist patients in Florida is that Amendment 2 will result in a constitutional right to use medical marijuana, not just a legislative enactment, so patients may be able to argue that employers are not permitted to deny them their constitutionally protected rights.  However, this will no doubt require litigation and the possibility of a lengthy court battle.

A similar battle is currently being waged in the State of Colorado, where a brave patient named Brandon Coats, is suing Dish Network after he was terminated for using medical cannabis.  Mr. Coats is paralyzed and receives cannabis to treat painful muscle spasms.  He was fired from his job at a Dish Network call center after failing a urine test.  The New York Times ran a very informative article about his case that you can read here.

Cases like this should serve as a reminder that, even if medical marijuana is approved, we must remain vigilant and continue to stand up for patients rights.