Brandon M. Peck – This past November, Florida joined twenty-three other states who have enacted medical marijuana legislation when a majority voted in favor of passing Amendment 2: the Florida Medical Marijuana Legalization Initiative. The affirmative result, which garnered 71.29% support from Florida voters, required at least a sixty percent (60%) supermajority vote for an amendment of the Florida Constitution to pass. It comes off the heels of a 2014 defeat, which was only able to muster a 57.62% majority vote in favor of the amendment. The sharp increase in support for the amendment may be due to key differences between the 2014 and 2016 amendment proposals. Such changes include: (1) clarified parental consent requirements for medical marijuana use by minors, (2) more well-defined guidelines as to what the legislation considers a “debilitating” illness for the purposes of treatment with medicinal marijuana, and (3) acknowledgment that physicians will not enjoy immunity from malpractice claims involving the negligent prescription of medicinal marijuana. However, whether the almost fifteen percent increase in support for the amendment over the past two years is due to greater social acceptance of medicinal marijuana as a valid and effective treatment for diseases or simply due to these clarifications between the 2014 and 2016 amendments has yet to be determined.
The 2016 amendment defines “Debilitating Medical Condition” as “cancer, epilepsy, glaucoma, human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” The latter portion of this definition obviously requires potential prescribing physicians to exercise their discretions in terms of what they believe qualifies as a “debilitating medical condition of the same kind or class as or comparable to those enumerated” as well as whether they “believe that the medical use of marijuana would likely outweigh the potential health risks for a patient.” More importantly, however, the door will soon be thrust open as the state courts will be required to render interpretations of what the statute means as “comparable.” Additionally, within the first year of the Amendment, the courts will likely be required to rule on cases involving individual possession and cultivation limitations, licensing requirements for patients and businesses/dispensaries, standards for testing, and product labeling. Also worrisome is how the new amendment and the prescription of medicinal marijuana will fit under medical malpractice cases.
Although Florida criminal penalties will still exist for smoking marijuana in public as well as driving under the influence of the drug, there will certainly be many changes for patients, consumers, and entrepreneurs in terms of the cannabis industry with the passing of Amendment 2. Patients eligible under the Florida Medical Marijuana Legalization Initiative will enjoy new and arguably less invasive means of treatment for their respective “debilitating medical conditions.” Additionally, many early moving entrepreneurs have already begun to open dispensaries carrying cannabis products and, with the passing of Amendment 2, these dispensaries as well as future ones may offer a wider array of cannabinoid products, including edibles, free from restriction; provided, however, non-medical distribution and redistribution of any product as well as operating without a valid license will be punishable offenses. In total, the Florida Department of Health estimates that there will be approximately two thousand cannabis dispensaries as a result of Amendment 2. As seen from dispensaries in New York, a medical marijuana dispensary can generate between $3,500 and $5,000 in revenue per square foot annually; comparable to Apple stores which made about $4,650 in sales per square foot and Tiffany & Co which made about $4,221 in the surrounding areas. It is important to note, however, that New York has relatively strict marijuana legislation, permitting a mere twenty dispensaries in the entire state; unlike Colorado which has approximately 1,800 dispensaries.
Patients, doctors, and entrepreneurs should exercise caution while proceeding under Amendment 2. As mentioned, patients will not be permitted to smoke medical marijuana in public nor drive while under the influence of the substance. Additionally, many doctors may fall victim to overzealous or lenient prescription of medical marijuana under Amendment 2; thereby, becoming subject to criminal liability or medical malpractice suits. Finally, business entrepreneurs looking to take advantage of the new legislation by opening dispensaries will be under strict scrutiny by law enforcement agencies. Whether the legalization of medical marijuana truly allocates money towards a more legitimate use like social policies and away from nefarious individuals profiting off the sale of the formerly illicit substance remains unclear. However, what is for certain is that Amendment 2 is a small step towards the possibility of full legalization, which has proven to be beneficial to other state economies, including California and Colorado.
