Florida's restrictive marijuana laws make for bad public policy, and even worse legal precedent.
Florida is a vast place with a diverse population (only a visible minority of whom misbehave in meme-worthy fashion). This disparity is reflected in the state’s choices for its next governor: Tallahassee Mayor Andrew Gillum, a Bernie Sanders-endorsed black man who wants to abolish ICE; and U.S. Rep. Ron DeSantis, the hard-right, Trump-approved member of the Freedom Caucus, who managed to racebait and redbait in the same ugly swoop.
Florida has swamps and orange groves and tropical islands, a few dense cities, suburban sprawl, and rustic living (and more swamps). But one value a large majority of Floridians have in common is that medical marijuana is good. More than 71 percent of voters approved Amendment 2 in 2016, which legalized medical cannabis for sick people.
It’s a good thing they like it, because it’s costing them — and it’s not their fault. For much of the last 18 months, Florida elected officials, beginning with Gov. Rick Scott (a for-profit healthcare mogul) and Attorney General Pam Bondi have been doing their utmost to give Floridians what they don’t want — and at great expense of time, effort, and treasure.
In this way, Florida is providing an object lesson for other states, should they deign to learn from it.
A Baked-in Monopoly
Marijuana supporters went to the ballot only after the Florida Legislature — a “group dominated by fear-mongering, fun-hating conservatives,” as the Miami New Times put it — declined to do its job and make a workable marijuana law that provided affordable and relatively easy access to cannabis for sick people. This was something every poll revealed that a large majority of Floridians wanted. After the landslide victory, it was a desire nobody could honestly deny.
But denial is a powerful thing. After losing in this way at the ballot box, Florida lawmakers created yet another restrictive system with a baked-in monopoly. Under rules approved in 2017 (and only then under duress), Florida marijuana patients weren’t allowed to grow their own cannabis, nor purchase smokeable flower, and had to purchase what product they could acquire from a short list of big growers.
In short, Floridians were handed one of the most restrictive medical-marijuana laws in the United States. They did not like this, so they went to the courts — where they’ve won, again and again. In a series of lawsuits throughout the year, a series of judges have ruled in marijuana-patients’ favor, striking down bans in home-grow, giving patients the explicit right to smoke cannabis — the most popular way the drug is consumed — and eliminating Legislature-gifted monopolies on who can grow and sell the drug.
Marijuana may soon be a business worth as much as $1 billion in Florida, but with an artificially limited marketplace, lawmakers created a high-profit scenario before a single seed was planted. One Florida company flipped its coveted license for $53 million. Florida put “profits over patients, essentially, and [are] allowing corporate America to stamp out any competition,” one patient advocate told the New Times, shortly after one legal challenge was filed.
That may be, but more to the point, Florida lawmakers can’t pass laws that contradict the state constitution. In failing to pass a workable law and “forcing” voters to go to the ballot, they have now lost the legal ability to take away any rights the ballot initiative granted.
“Just as no person is above the law, the legislature must heed the constitutional rights Floridians placed in the Constitution in 2016," wrote Leon County circuit Judge Karen Gievers, in striking down the ban on smoked marijuana in May. “The conflicting, overreaching 2017 statute, while presumably adopted in good faith and with good intentions, cannot be allowed to overrule the authority of the people to protect rights in the Constitution.”
Gievers was generous. Florida authorities are unmoved. The result is a very expensive rudimentary civics lesson that doesn’t appear to be ending anytime soon. Following these losses, Attorney General Bondi, following direction from Scott, has appealed to the state Supreme Court. This intransigence has so far cost Florida taxpayers $2 million in legal fees, nearly all of which has gone to a single law firm, Florida Politics reported. With appeals pending at the state’s highest court, this saga — and flow of dollars away from Florida voters’ pockets — will continue for at least the rest of the year.
“Florida is certainly not unique when it comes to challenges, but I suspect it’s the most litigation we’ve seen around the country,’’ Karen O’Keefe, the director of state policies for the Marijuana Policy Project, told the Tampa Bay Times. “It’s a shame. They’re probably just throwing away more money while chilling the will of the voters who voted for this faithfully.”
All this was predicted well in advance. One state lawmaker, state Sen. Jeff Brandes, a Republican from St. Petersburg, predicted that such clamps on the marketplace would lead to lawsuits.
"There are a lot of people who thought medical marijuana would be available in a certain manner when they voted, and it hasn’t turned out that way,” he told the Tampa Bay Times. “I wouldn’t blame them if they felt like this was some kind of bait-and-switch.”
No Obvious Winner
Such hustles typically have a clear winner. Generally, the winner is the one running the hustle — the rest of us are the marks. In Florida, it’s not immediately clear who’s winning, aside from the private lawyers pocketing easy money defending a bad law. But it’s obvious who’s losing: Florida people, from the Keys to Tallahassee.
Some good may come from this, if only other states get the message. Some are: In Pennsylvania, state regulators lifted their own restriction on smokeable marijuana after discovering how much easier and cheaper it is to give people simple cannabis access. And this ordeal looks set to end as soon as Florida voters elected a new governor: Both DeSantis and Gillum have vowed to at minimum “fully implement medical marijuana.” In the meantime, Florida men and women will continue to have their interests undermined by the people elected to serve them.