Local Regulation of Medical Marijuana in Florida.

AuthorSmith, Patricia D.
PositionCity, County and Local Government Law

The use of marijuana for medical purposes has a lengthy history, with the earliest known use occurring around 2900 B.C. (1) It was first used in the United States for medical purposes circa 1840. (2) As of March 2017, 28 states, Guam, Puerto Rico, and the District of Columbia have medical marijuana laws in place. (3)

Medical marijuana has numerous recognized health benefits: 1) treatment and prevention of glaucoma; 2) reversal of carcinogenic effects of tobacco; 3) improvement in lung health; 4) control of epileptic seizures; 5) decrease in symptoms of Dravet's Syndrome, a severe seizure disorder; 6) control spread of cancer; 7) decrease in anxiety; 8) slow the progression of Alzheimer's disease; 9) ease the pain of multiple sclerosis; 10) ease muscle spasms; 11) lessening of side effects of treatments for Hepatitis C while increasing effectiveness of treatment; 12) treatment of inflammatory bowel diseases like Crohn's disease and ulcerative colitis; 13) relief of arthritis discomfort; 14) increase of metabolism; 15) improvement of symptoms of Lupus; 16) control of Parkinson's disease-related tremors; 17) treatment of post-traumatic stress disorder (PTSD); 18) protection for the brain after a stroke; 19) protection of the brain from concussions and trauma; and 20) reduction of pain and nausea from chemotherapy while stimulating appetite. (4) Furthermore, medical marijuana is a significantly safer alternative to opioids, which have a high risk of death due to overdose. (5)

U.S. Governmental Regulation of Medical Marijuana

The federal government's most extensive regulation of marijuana occurred in the Marihuana Tax Act that was passed in 1937. The Marihuana Tax Act imposed an excise tax on marijuana for medical and industrial uses. (6) The act imposed a $1-perounce tax on registered persons and a $100-per-ounce tax on unregistered persons. (7) The act did not criminalize marijuana: "The legislative history also strongly indicates that the [a]ct was intended merely to impose a very high tax on transfers to non-registrants and not to prohibit such transfers entirely." (8) The 1952 Boggs Act and 1956 Narcotics Control Act set mandatory sentences for drug-related offenses, including marijuana. (9)

In 1969, the U.S. Supreme Court found the transfer tax provisions of the Marihuana Tax Act unconstitutional because they violated the Fifth Amendment prohibition of self-incrimination. (10) Congress subsequently passed the 1970 Comprehensive Drug Abuse Prevention and Control Act that established categories or schedules for drugs depending on their perceived medical usefulness and potential for abuse. (11) Marijuana was placed in Schedule 1, a category for drugs that have no valid medical use and a high potential for abuse. (12) Congressional committee reports indicate that Congress was unsure whether marijuana should be a Schedule 1 drug and were awaiting commission reports to revisit the issue. (13) The bipartisan Shafer Commission appointed by President Richard Nixon recommended removing criminal sanctions for private possession of marijuana. (14) However, President Nixon rejected the commission's recommendation.

Subsequently, a private citizen, Robert Randall, was arrested in Washington, D.C., for cultivating marijuana to treat his glaucoma. (15) He argued medical necessity and presented evidence regarding his testing at UCLA Medical Center and John Hopkins University Medical Center that revealed marijuana as the only drug able to stop the deterioration of his eyesight. (16) Mr. Randall's arrest and subsequent lawsuit against the federal government led to the Compassionate Investigational New Drug Program that allowed patients to receive medical marijuana from the government. (17) The D.C. Superior Court found no evidence to support the ban on marijuana and dismissed the criminal charges. (18)

Mr. Randall thereafter sued the U.S. Food and Drug Administration (FDA), Drug Enforcement Administration (DEA), the National Institute on Drug Abuse, the Department of Justice, and the Department of Health, Education & Welfare, to obtain legal access to medical marijuana. (19) The FDA created the Compassionate Investigational New Drug Program to settle the lawsuit and provide access to marijuana for people suffering from diseases that responded favorably to the drug. (20) In the mid-1980s, the program was expanded to include HIV-positive patients suffering from Wasting Syndrome. (21)

That expansion resulted in a greater demand for medical marijuana through the program. The Bush Administration perceived the program to be in conflict with their stated position, that marijuana had no valid medical use. As a result, in 1992, President George H.W. Bush ordered the closure of the Compassionate Investigational New Drug Program. (22) The 13 patients who were receiving marijuana under the program were grandfathered in, and each received 300 free marijuana joints every month. (23)

As public opinion regarding marijuana changed and a number of states legalized medical marijuana, pressure mounted for the federal government to take action. In 2013, Deputy Attorney General James Cole issued a memoranda providing guidance for marijuana enforcement that indicated the Department of Justice would not prosecute marijuana crimes in states that legalized marijuana. (24) In addition, Congress passed a spending bill that prohibits the Drug Enforcement Administration from using funds to arrest or prosecute patients, caregivers, and businesses that comply with state medical marijuana laws. (25)

State of Florida

* Medical Marijuana's Introduction Into Florida--In 2014, the Florida Legislature enacted F.S. [section]381.986, "Compassionate Use of Low-THC Cannabis." (26) Under this statute, effective January 1, 2015, a licensed physician could prescribe medical marijuana to patients suffering from cancer or a medical condition that chronically produces seizures or severe, persistent, muscle spasms if no alternative treatment options existed for that patient and six other enumerated conditions were met. (27) Two years later, on November 8, 2016, the overwhelming majority of Floridians (71.3 percent) approved Amendment 2, which expands the previously limited Florida medical marijuana law. (28) This amendment is now reflected in Fla. Const. art. X, [section] (29).

* Differing Perspectives on Use of Home Rule Power Prior to Senate Bill 8-A--F.S. [section]381.986(8)(a) (2016) preempted any local government's home-rule power to regulate the cultivation and processing of medical marijuana by medical marijuana treatment centers (MMTCs). (29) As a result, regulation of the cultivation and processing of medical marijuana was reserved exclusively to the state of Florida. (30) However, F.S. [section] 381.986(8) (b) (2016) provided local governments with the authority to regulate 1) the quantity and geographical location of...

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