How Does Proposition 215 Relate to Florida?
What is Proposition 215 Florida?
Historically, California has been known to take the lead when it comes to creating new laws or making changes to the current law. As a trend setter, other states watch and learn from their decisions. When it comes to changes in medical marijuana laws, California did not disappoint in the least.
Proposition 215 was the California medical marijuana initiative, referred to as the Compassionate Use Act. It was placed on the 1996 general election ballot and approved by 55.58% of the voters. Deemed a major victory for medical marijuana, it made California one of the leading states to allow its medical use. In essence, the Compassionate Use Act specifically authorized patients and defined caregivers (upon recommendation of a physician) to possess and cultivate marijuana, exempting them from criminal prosecution. At the time this law was passed, it was the only law that allowed physicians to recommend medical marijuana for virtually any condition. It also protected physicians from punishment, as well as loss of rights or privilege for making the recommendation.
In order to address specific practices, the California State Legislature enacted the Medical Marijuana Program Act in 2004. This program set forth the voluntary identification system statewide; established the limits on the quantity of medical marijuana a cardholder could possess; and provided cooperatives and collectives with cultivation rules.
The relationship of Proposition 215 to Florida arises from the implications it had on the citizens of California, the reactions of local government, and the position of the courts. One case arose from the filing of a lawsuit against Proposition 215 by two counties, San Diego and San Bernardino. The case was filed as an objection to Proposition 215 based on the belief that it forced them to condone federally illegal drug use. Additionally, they challenged a law requiring counties to issue patient identification cards that legally sanctioned the possession of small quantities of marijuana; all they had to do was show the card to law enforcement officers. In 2008 the California Appellate Court upheld Proposition 215, concluding that regardless of federal law, California could make its own decision concerning the elimination of its criminal penalties for medical marijuana. The United States Supreme Court declined to hear the appeal in May, 2009.
The state of California’s reaction to Proposition 215 is seen in People v. Kelly, a case decided by the California Supreme Court in January 2010. In this case, the court ruled that the state of California could not impose a more restrictive limit on medical marijuana than was permitted under Proposition 215. Effectively, it prohibited legislative tampering.
Still, another case resulted from the seizure of medical marijuana from a card holding medical marijuana patient in 2005 by the Garden Grove police force. In Garden Grove v. Kha, the California Fourth Appellate District ruled against Garden Grove stating that “it is not the job of the local police to enforce the federal drug laws.” In their 2007 decision, the court ruled that the intention of the federal Controlled Substance Act of 1970 did not include regulating the practice of medicine, “a task that falls within the traditional powers of the states.” It was enacted to tackle recreational drug abuse and trafficking.
However, in Ross v. Ragingwire, the California Supreme Court ruled that the law does not protect against a firing for a positive marijuana metabolite test. The fact that the patient was never impaired at work was irrelevant.
In order to add a buffer zone between schools and dispensaries, the legislature passed AB 2650 in 2010. Because the legislature cannot amend a voter-initiative, AB 2650 and SB 420 are supplementary only. The California laws are codified at Cal. Health and Safety Code §11362.5 and 11362.7 et seq.
Proposition 215 Florida
Florida was able to watch and learn. Where Proposition 215 was a brief legislative initiative permitting the use of medical marijuana upon recommendation by a physician for any medical condition, exempting patients and defined caregivers from criminal prosecution, it only encouraged federal and state governments to implement a plan. Proposition 215 neither made provision for a plan to assure its proper implementation and enforcement, nor did it require that a plan be created, implemented, and enforced in a timely manner. On the other hand, Florida’s proposed constitutional amendment for the November ballot does make provision for a plan. In particular, the Florida Department of Health “shall issue reasonable regulations necessary for the implementation and enforcement of this section. The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients. It is the duty of the Department to promulgate regulations in a timely fashion.” The ballot summary provides that the proposed constitutional amendment:
Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.
In conclusion, California’s Proposition 215 helped pave the way in understanding the issues and responsibilities associated with medical marijuana laws. The California court decisions as well as the United States Supreme Court’s refusal to hear appeals suggests the direction courts may take. Proposition 215 was a law to watch and from which to learn. Based upon the comprehensive nature of Florida’s proposed constitutional amendment, Florida was among the states that watched and learned.
About the Contributor: Karen Van Den Heuvel Fischer is an attorney, Registered Dietitian, Certified Civil Mediator, and published author. She is licensed to practice law in both Florida and Colorado where her unique experiences encompass more than 20 years in the corporate, government and private sectors. Her academic achievements include earning a doctorate in jurisprudence, Summa Cum Laude, graduating first in her class, as well as a Bachelor of Science and Master of Science in Nutrition, both degrees being conferred with honors.