Florida attorney general against proposed recreational marijuana amendment

TALLAHASSEE, Fla. - Attorney General Ashley Moody is urging the Florida Supreme Court to reject a proposed constitutional amendment that would allow recreational use of marijuana by people 21 and older, arguing a ballot summary would be "misleading to voters in several key respects."

Trulieve, the state’s largest medical-marijuana operator, had contributed $39 million as of the end of May to a political committee spearheading the effort to place the proposed amendment on the 2024 ballot. The Smart & Safe Florida committee needs the Supreme Court to sign off on the proposed ballot wording before the measure can go before voters.

The court twice ruled that previous initiatives aimed at authorizing recreational use of marijuana did not meet constitutional muster. Under the Florida Constitution, ballot initiatives must not be confusing to voters and must address a single subject.

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In a 49-page brief filed Monday, lawyers in Moody’s office argued that the "Adult Personal Use of Marijuana" proposal would mislead voters in several ways.

The ballot summary, in part, says the measure would allow "adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories" for non-medical consumption.

"That is incorrect and misleading," because marijuana remains illegal under federal law, the state’s brief said. "In previously approving similarly worded ballot summaries, the court erred."

The Supreme Court in 2016 signed off on a proposed constitutional amendment allowing medical-marijuana use. More than 71 percent of voters approved the amendment.

But the state’s brief Monday said "voters need clear guidance before being asked to lift state-law penalties for the possession of a substance that would subject users to devastating criminal liability under federal law. And the rampant misinformation in the press and being peddled by the sponsor of this initiative about its effects makes clarity all the more pivotal."

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The ballot summary also says the measure would allow current medical-marijuana operators, known as "medical marijuana treatment centers" and "other state licensed entities to acquire, cultivate, process, manufacture, sell and distribute" marijuana products and accessories and allow "consistent legislation."

Moody’s office argued that the proposal would mislead voters into believing it would result in more competition in Florida’s marijuana market.

Currently, only licensed operators are allowed to "engage in the marijuana trade" in Florida, the brief said, and the proposal wouldn’t change that but would "at most" give the Legislature the authority to issue more licenses.

The proposal would expand on the current medical-marijuana language in the Constitution, which gives the Department of Health oversight of the state’s marijuana industry.

But the state’s lawyers argued the proposal, which would go into effect six months after passage, is misleading about regulatory oversight because it wouldn’t specifically give state health officials authority over recreational marijuana operations.

"But even to the extent the Department (of Health) can regulate this new industry, it cannot realistically do so before the amendment takes effect," the brief added. That would leave a "substantial period" for businesses to operate "unregulated in the recreational marijuana space."

"In short, the Adult Personal Use of Marijuana amendment asks voters to make consequential changes to Florida’s Constitution yet is not honest with them about what those changes would be. The initiative should be stricken," the brief said.

Supporters of the amendment blasted the state’s arguments. Smart & Safe Florida spokesman Steve Vancore said the company disagrees with Moody’s analysis.

"We believe the language as written clearly complies with the requirements of the Constitution. We look forward to bringing this matter to the Florida Supreme Court and are confident that the court will conclude that there is no lawful basis to set aside the ballot initiative. This important issue should be entrusted to the citizens of Florida — over a million of whom have already signed the Smart & Safe Florida petition saying they support it — to decide for themselves through democratic choice," Vancore said.

Daniel Russell, an attorney with the Dean Mead firm who specializes in medical-marijuana litigation, accused Moody, a Republican, of politicizing the issue.

"This document is more Fox News fear-mongering intended to produce goodwill from ‘the base’ than a legal document filed by Florida’s chief legal officer on behalf of the state’s 22 million residents. It reeks of conservative nonsense and Nixonian views on a substance that is legalized for recreational use in 23 states, three U.S. territories and the District of Columbia. I believe that the Supreme Court of Florida will see this for what it is and allow voters to decide the next steps for Florida’s future," Russell told The News Service of Florida in an email.

The Supreme Court on Monday also received briefs opposing the proposal from the Florida Chamber of Commerce and the Drug Free America Foundation.

Lawyers for the Florida Chamber argued that the proposal violates the single-subject requirement because it "impermissibly embraces the dual subjects of decriminalization and commercialization of recreational marijuana."

The ballot title and summary also "fail to disclose that the commercialization of recreational marijuana is a chief purpose of the proposed amendment — so much so that it would preclude adults 21 years of age or older from growing marijuana for their own personal use," wrote attorneys from the Lawson Huck Gonzalez PLLC firm, including former Supreme Court Justice Alan Lawson.

"Decriminalizing the adult personal use of marijuana and creating a commercial recreational marijuana industry are discrete subjects with differing degrees of voter support," the Florida Chamber’s 42-page brief said.

Arguments in a brief filed Monday by the Drug Free America Foundation alleged proposed decriminalization of marijuana "conflicts" with federal law.

The Florida proposal is "fatally flawed," the group’s lawyers wrote in a 27-page brief.

Florida law requires initiative sponsors to submit at least 891,523 valid signatures for placement on the ballot, and also sets thresholds for the number of signatures required from half of the state’s 28 congressional districts.

The state Division of Elections website Tuesday listed 910,013 valid signatures for the recreational marijuana proposal, and the Smart & Safe Florida committee had met the requisite number of signatures in 13 districts — just one district shy of the threshold.