While illegal under federal law, recreational cannabis is legal in over a dozen states and Washington D.C.
Connecticut became the 18th state to legalize recreational cannabis on Tuesday, 22 June 2021. In Florida, marijuana legalization proponents have tried to adopt similar legislation that would allow adult-use cannabis.
However, Florida has lost its efforts, and supporters of cannabis legalization have turned to the Florida Constitutional amendment citizen initiative process. Sensitive Florida Inc. sponsored and developed one such initiative titled “Regulate Marijuana in a Manner Similar to Alcohol to Establish Age, Licensing, and Other Restrictions.”
The proposed amendment addressed the legalization of leisure marijuana in Florida and its regulation, similar to the regulation of alcohol. The initiative would have legalized the possession, use, display, procurement, or transportation of cannabis and cannabis products in quantities “reasonably indicative of personal use or for use by household members.”
It would also have allowed residents to cultivate six mature flowering cannabis plants per household member, 21 years or older, with a harvest “provided the growing takes place indoors or in a locked greenhouse.” The homegrown cannabis would not be permitted for sale.
On 11 September 2019, the Florida Procurator General requested an advisory view on the validity of this particular initiative from the Florida Supreme Court. Two questions were referred to the Florida Supreme Court:
(1) Whether the proposed amendment complies with the Florida Constitution’s single-subject requirement; and
(2) Whether the title and summary of the votes comply with Florida Stature 101.161.
Nearly two years after, on June 17, 2021, the Florida Supreme Court issued a 5-2 advisory opinion rejecting the proposed 2022 ballot amendment, which concluded that the wording of the voting was erroneous. The Supreme Court in Florida only dealt with the second question because it was “clearly dispositive.”
The Florida Supreme Court found the ballot summary to be inaccurate and “falsely tells voters that the proposed amendment limits the use of recreational marijuana.” In the ballot summary, the Court specifically noted that the word ‘use’ was ambiguous in the proposed amendment that stated cannabis should be regulated “for limited use.”
The Justices wrote in their statement that the Sponsor is incapable of pointing out in the text that the language of ‘limited use’ could credibly support the summary that the summary is affirmatively misled. The majority included Justice Chief Charles Canady, Justices Carlos Muniz, John Couriel, Ricky Polston, and Jamie Grosshans.
In a dissent accompanied by Justice Jorge Labarga, Judge Alan Lawson admitted that the proposal by Sensible Florida was a ‘close case.’ However, he said that in conjunction with the vote title, the court should have read the summary of the vote, which read: “Regulate Marijuana in a Manner Similar to Alcohol to Establish Age, Licensing, and Other Restrictions.”
Lawson wrote that the entire amendment itself explains how to use marijuana similarly to the current alcohol regulations in Florida. For this reason, the reading of the title and summary together would also mean ‘limited use’ is a reference to the rules which the aptly descriptive title would disclose. Read together in this way, the title and summary of the ballot “do not disguise the measure as something else” and are not “clearly and conclusively defective.”
For the second time under two months, a proposed constitutional amendment on recreational use of marijuana was rejected by the Florida Supreme Court. In April 2021, the Supreme Court of the Republic of Florida rejected a similar initiative by the Make It Legal Committee of Florida called the “Adult Use of Marijuana.” The same five-strong majority of Justice officials concluded that “Adult Use of Marijuana” was misleading. It was not correct in advising residents that marijuana was still federally illegal, even if recreational cannabis was legal in Florida.
The judges wrote that the constitutional amendment cannot unambiguously ‘permit’ or authorize criminalized conduct according to federal law. Also, a summary of votes that suggesting otherwise is “affirmatively misleading.” In his dissolution, Justice Allen Lawson noted that the decision underestimates Florida’s voters and “adds hurdles to the citizen-initiative process” that are not supported by the plain language of the ruling law or our precedents.
Lawson also stated that it is practical not to know “how federal legislation will change in the years” to draft a summary of votes and vote on the change. Ultimately, in the elections of 2022, the Florida Supreme Court prevented the “Adult Use of Marijuana” in the 2022 ballot appearance.
These recent decisions confirm that a shortfall in the vote on recreational marijuana use in the state of Florida is not overlooked. Despite the Court’s challenging position, these views offer guidance to sponsors in drafting future legalization initiatives on marijuana to avoid similar flaws.