Amendment 2: Opening the Door

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As you may recall, back in 2014, the medical marijuana initiative made its debut on the Florida ballots. Despite popularity amongst millennials, the 2014 initiative was unable to obtain the required 60 percent of the vote as it fell short by a mere 2.38 percent. However, on Tuesday, Nov. 8, 2016, with a 71.31 percent super-majority vote, the state of Florida passed Amendment 2, formally known as the Florida Medical Marijuana Legalization Initiative.Though there are countless factors that can be attributed to the amendment’s success, many stem from the increase in voting totals during the 2016 election cycle. Such factors include, but are not limited to, the Florida Legislature’s failure to act in furtherance of the medical marijuana initiative that was recently passed; the additional rules and regulations that were introduced in the 2016 proposal (e.g., parental consent for medical marijuana use by minors, defining what is meant by “debilitating” illnesses that would qualify for treatment, etc.); as well as the increasing acceptance of marijuana laws throughout the country.

In light of the amendment’s passage, members of the community seem to fear (or hope) that medical marijuana prescriptions will be readily available, since they are provided at the discretion of an individual’s prescribing physician. However, the language of the amendment clearly states that such discretion will not come without a strict set of guidelines and regulations. The amendment, which will still receive implementation guidelines from the legislature, gives sole regulatory authority to the Department of Health (DOH), which has six months to promulgate those regulations following its effective date this January. It is worth noting that while the DOH has been given six months to promulgate the applicable rules and regulations, the amendment provides the DOH a period of nine months to ultimately begin issuing qualifying patient and caregiver identification cards, as well as registering MMTCs. flConst. art. X, s. 29(d)(2).

Patient Regulations and Restrictions

In the coming months, those who are interested in obtaining a prescription for medical marijuana may be surprised and frustrated by the difficulty of the process. First and foremost, an individual must obtain a physician certification, which is a document signed by a physician after assessing a patient’s medical history and conducting a full physical examination. flConst. art. X, § 29(b)(9). Based on that information, the physician will then make a determination as to whether the patient has a qualifying “debilitating” illness, which is defined as cancer, epilepsy, glaucoma, positive status for 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 any 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. flConst. art. X, § 29(b)(1).

While the catch-all provision gives prescribing physicians a measure of discretion in determining whether a particular patient qualifies for a medical marijuana prescription, it is important to note that patients also must obtain a “qualifying patient identification card” from the DOH. flConst. art. X, § 29(b)(3) and (b)(10).

Although the DOH has full authority over the procedures and guidelines regarding the issuance and renewal of these cards, such procedures and guidelines have yet to be determined.Thus, even a patient who receives a physician certification may still be precluded from filling that prescription based on the DOH regulatory requirements.

Caregiver Regulations and Restrictions

The DOH will also have regulatory authority over the qualifications and standards for any caregivers who agree to assist with a qualifying patient’s use of medical marijuana. For instance, the DOH may limit the amount of patients one caregiver can assist, as well as the amount of caregivers a qualifying patient can have.

Regulations and Restrictions for Medical Marijuana Treatment Centers

In addition to rules and regulations regarding patients and caregivers, the DOH has been given full regulatory authority over the Medical Marijuana Treatment Centers (MMTCs), which are defined as those entities that acquire, cultivate, possess, distribute, or otherwise handle the medical marijuana and its related materials, and are registered by the DOH. flConst. art. X, § 29(b)(5); also see flConst. art. X, § 29(d)(1)c.This registration process will not only set out the applicable procedures for registration itself, but will provide for the standards to “ensure proper security, record keeping, testing, labeling, inspection, and safety” for the protection of the patient. flConst. art. X, § 29(d)(1)c. As with any prescription medication, these standards will seek to ensure that individuals who obtain these prescriptions receive what is prescribed in its purest, and safest, form, so that it provides the intended medicinal effect.

Opening the Door to More Opportunities

The anticipated strict regulations, though yet to be promulgated in full, will undoubtedly prevent a certain sector of the population from receiving medical marijuana who believe they are entitled to it, or who simply wish to have it. As a result, there is little doubt that Amendment 2 will open the door to allegations of criminal violations such as prescription fraud and crimes surrounding the identification cards, whether in the form of improper use of personal information or the, as well as various administrative violations for failure of physicians and/or MMTCs to strictly adhere to the guidelines that are ultimately put into place.

Lex Reception

For those who are not able to receive the benefits of medical marijuana or simply wish to have unfettered access to it, whether for medical or recreational purposes, it is likely your time will come. If we have learned anything from the states preceding us regarding the implementation of medical marijuana, it is that it is only a matter of time before its recreational use becomes a topic of conversation due to the financial benefits that are sure to follow. Reid Hart 

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