The Florida Supreme Court Rejects Recreational Marijuana Initiative

Bressler, Amery & Ross, P.C.
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Although it remains illegal under federal law, recreational marijuana is legal in more than a dozen states and in Washington, D.C.  On Tuesday, June 22, 2021, Connecticut became the 18th state to legalize recreational marijuana.  In Florida, proponents of marijuana legalization have sought to enact similar legislation which would allow the recreational use of marijuana in the state.  Florida’s efforts have fallen short though, and supporters of marijuana legalization have turned to the citizen-initiative process for amending the Florida Constitution. Sensible Florida Inc. sponsored and drafted one such initiative titled “Regulate Marijuana in a Manner Similar to Alcohol to Establish Age, Licensing, and Other Restrictions.”  The proposed amendment was framed to address (1) the legalization of recreational marijuana in Florida and (2) regulating it similarly to the regulation of alcohol.  The initiative would have legalized “possessing, using, displaying, purchasing, or transporting cannabis, and cannabis products in quantities reasonably indicative of personal use or for use by household members.”  It also would have permitted residents to grow “six mature flowering cannabis plants per household member 21 years of age or older and possessing the harvest therefrom, provided the growing takes place indoors or in a locked greenhouse and the cannabis grown is not made available for sale.”  The ballot summary reads as follows:

“Regulates marijuana (hereinafter “cannabis”) for limited use and growing by persons 21 years of age or older. State shall adopt regulations to issue, renew, suspend, and revoke licenses for cannabis cultivation, product manufacturing, testing and retail facilities. Local governments may regulate facilities’ time, place and manner and, if state fails to timely act, may license facilities. Does not affect compassionate use of low-THC cannabis, nor immunize federal law violations.”

On September 11, 2019, the Florida Attorney General petitioned the Florida Supreme Court for an advisory opinion as to the validity of this particular initiative. The Florida Supreme Court was presented with two questions:

(1) Whether the proposed amendment complies with the single-subject requirement of Florida’s Constitution?

(2) Whether the ballot title and summary comply with the clarity requirements of Fla. Stat. § 101.161?

Nearly two years later, on June 17, 2021, the Florida Supreme Court issued a 5-2 advisory opinion rejecting the proposed amendment for the 2022 ballot concluding that the ballot wording was misleading.  The Florida Supreme Court only addressed the second question because it was “clearly dispositive.” The Florida Supreme Court found that the ballot summary is “not accurate” and “falsely tells voters that the proposed amendment limits the use of recreational marijuana.” For example, the Court specifically took issue with the language in the ballot summary “that states the proposed amendment would regulate marijuana ‘for limited use and growing by persons twenty-one years of age or older,’” (internal quotations omitted) noting that the word “use” was ambiguous. “The Sponsor’s inability to point to anything in the text of the measure that could credibly support the ‘limited use’ language in the summary leaves no doubt that the summary is affirmatively misleading,” the Justices wrote. The majority included Chief Justice Charles Canady and Justices Ricky Polston, Carlos Muniz, John Couriel and Jamie Grosshans.

Justice Alan Lawson, in a dissent joined by Justice Jorge Labarga, acknowledged that Sensible Florida’s proposal was a “close case.” He said the court should have read the ballot summary in conjunction with the ballot title that said, “Regulate Marijuana in a Manner Similar to Alcohol to Establish Age, Licensing, and Other Restrictions.” Lawson wrote “And the (full) amendment itself details the ways that marijuana use would be regulated similar to Florida’s current regulations affecting alcohol use.” “Therefore, reading the title and summary together, ‘limited use’ could also be understood as a reference to the regulations disclosed in the aptly descriptive title. Read together in this way, the ballot title and summary do not disguise the measure as something else, or hide the ball as to the amendment’s true effect, and are not ‘clearly and conclusively defective.’”

This is the second time in two months that the Florida Supreme Court has rejected a proposed constitutional amendment on the subject of recreational use of marijuana.   In April 2021, the Florida Supreme Court rejected a similar initiative by the committee Make It Legal Florida which was titled “Adult Use of Marijuana.”  The same five Justice majority concluded that the “Adult Use of Marijuana” initiative was misleading because it did not properly advise residents that marijuana would still be illegal federally, even if recreational marijuana was legal in Florida.  The Justices wrote “a constitutional amendment cannot unequivocally 'permit' or authorize conduct that is criminalized under federal law. And a ballot summary suggesting otherwise is affirmatively misleading.”  Justice Allen Lawson noted in his dissent that the decision underestimates Florida voters and “adds hurdles to the citizen-initiative process that are not supported by the plain language of the governing law or our precedent.”  Lawson also stated that “there is the practical matter of not knowing how federal law will change in the years between the drafting of any ballot summary and a vote on the amendment.”  Ultimately, the Florida Supreme Court prevented the “Adult Use of Marijuana” from appearing on the 2022 ballot. 

These recent decisions are confirmation that any deficiency in a ballot initiative addressing recreational marijuana use in the state of Florida will not be overlooked. Despite the Court’s hard stance, these opinions offer guidance to sponsors about how to avoid similar pitfalls when drafting future marijuana legalization initiatives.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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