Supreme Court of Florida
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No. SC15-1796
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE USE OF
MARIJUANA FOR DEBILITATING MEDICAL CONDITIONS.
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No. SC15-2002
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE USE OF
MARIJUANA FOR DEBILITATING MEDICAL CONDITIONS
(FINANCIAL IMPACT STATEMENT).
[December 17, 2015]
PER CURIAM.
The Attorney General of Florida has requested this Court’s opinion as to the
validity of an initiative petition submitted by an organization called People United
for Medical Marijuana circulated pursuant to article XI, section 3, of the Florida
Constitution, and the corresponding Financial Impact Statement. We have
jurisdiction. See art. IV, § 10, art. V, § 3(b)(10), Fla. Const. For the reasons that
follow, we conclude that the proposed amendment embraces a single subject and
therefore complies with article XI, section 3. We also conclude that the ballot title
and summary comply with section 101.161(1), Florida Statutes (2015). Finally, we
conclude that the accompanying Financial Impact Statement is in compliance with
section 100.371(5), Florida Statutes (2015). We therefore approve the proposed
amendment and Financial Impact Statement for placement on the ballot.
BACKGROUND
On October 20, 2015, the Attorney General of Florida petitioned this Court
for an opinion as to the validity of an initiative petition sponsored by People
United for Medical Marijuana and circulated pursuant to article XI, section 3 of the
Florida Constitution. The sponsor submitted a brief supporting the validity of the
initiative petition.
The proposed amendment would create a new section 29 to article X of the
Florida Constitution, and states:
ARTICLE X, SECTION 29. Medical marijuana production,
possession and use. —
(a) PUBLIC POLICY.
(1) The medical use of marijuana by a qualifying patient or
caregiver in compliance with this section is not subject to criminal or
civil liability or sanctions under Florida law.
(2) A physician shall not be subject to criminal or civil liability
or sanctions under Florida law solely for issuing a physician
certification with reasonable care to a person diagnosed with a
debilitating medical condition in compliance with this section.
(3) Actions and conduct by a Medical Marijuana Treatment
Center registered with the Department, or its agents or employees, and
in compliance with this section and Department regulations, shall not
be subject to criminal or civil liability or sanctions under Florida law.
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(b) DEFINITIONS. For purposes of this section, the following words
and terms shall have the following meanings:
(1) “Debilitating Medical Condition” means 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 other debilitating
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.
(2) “Department” means the Department of Health or its
successor agency.
(3) “Identification card” means a document issued by the
Department that identifies a qualifying patient or a caregiver.
(4) “Marijuana” has the meaning given cannabis in Section
893.02(3), Florida Statutes (2014), and, in addition, “Low-THC
cannabis” as defined in Section 381.986(1)(b), Florida Statutes
(2014), shall also be included in the meaning of the term “marijuana.”
(5) “Medical Marijuana Treatment Center” (MMTC) means an
entity that acquires, cultivates, possesses, processes (including
development of related products such as food, tinctures, aerosols, oils,
or ointments), transfers, transports, sells, distributes, dispenses, or
administers marijuana, products containing marijuana, related
supplies, or educational materials to qualifying patients or their
caregivers and is registered by the Department.
(6) “Medical use” means the acquisition, possession, use,
delivery, transfer, or administration of an amount of marijuana not in
conflict with Department rules, or of related supplies by a qualifying
patient or caregiver for use by the caregiver’s qualifying patient for
the treatment of a debilitating medical condition.
(7) “Caregiver” means a person who is at least twenty-one (21)
years old who has agreed to assist with a qualifying patient’s medical
use of marijuana and has qualified for and obtained a caregiver
identification card issued by the Department. The Department may
limit the number of qualifying patients a caregiver may assist at one
time and the number of caregivers that a qualifying patient may have
at one time. Caregivers are prohibited from consuming marijuana
obtained for medical use by the qualifying patient.
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(8) “Physician” means a person who is licensed to practice
medicine in Florida.
(9) “Physician certification” means a written document signed
by a physician, stating that in the physician’s professional opinion, the
patient suffers from a debilitating medical condition, that the medical
use of marijuana would likely outweigh the potential health risks for
the patient, and for how long the physician recommends the medical
use of marijuana for the patient. A physician certification may only
be provided after the physician has conducted a physical examination
and a full assessment of the medical history of the patient. In order
for a physician certification to be issued to a minor, a parent or legal
guardian of the minor must consent in writing.
(10) “Qualifying patient” means a person who has been
diagnosed to have a debilitating medical condition, who has a
physician certification and a valid qualifying patient identification
card. If the Department does not begin issuing identification cards
within nine (9) months after the effective date of this section, then a
valid physician certification will serve as a patient identification card
in order to allow a person to become a “qualifying patient” until the
Department begins issuing identification cards.
(c) LIMITATIONS.
(1) Nothing in this section allows for a violation of any law
other than for conduct in compliance with the provisions of this
section.
(2) Nothing in this section shall affect or repeal laws relating to
non-medical use, possession, production, or sale or marijuana.
(3) Nothing in this section authorizes the use of medical
marijuana by anyone other than a qualifying patient.
(4) Nothing in this section shall permit the operation of any
vehicle, aircraft, train or boat while under the influence of marijuana.
(5) Nothing in this section requires the violation of federal law
or purports to give immunity under federal law.
(6) Nothing in this section shall require any accommodation of
any on-site medical use of marijuana in any correctional institution or
detention facility or place of education or employment, or of smoking
medical marijuana in any public place.
(7) Nothing in this section shall require any health insurance
provider or any government agency or authority to reimburse any
person for expenses related to the medical use of marijuana.
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(8) Nothing in this section shall affect or repeal laws relating to
negligence or professional malpractice on the part of a qualified
patient, caregiver, physician, MMTC, or its agents or employees.
(d) DUTIES OF THE DEPARTMENT. The Department 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.
(1) Implementing Regulations. In order to allow the
Department sufficient time after passage of this section, the following
regulations shall be promulgated no later than six (6) months after the
effective date of this section:
a. Procedures for the issuance and annual renewal of qualifying
patient identification cards to people with physician certifications and
standards for renewal of such identification cards. Before issuing an
identification card to a minor, the Department must receive written
consent from the minor’s parent or legal guardian, in addition to the
physician certification.
b. Procedures establishing qualifications and standards for
caregivers, including conducting appropriate background checks, and
procedures for the issuance and annual renewal of caregiver
identification cards.
c. Procedures for the registration of MMTCs that include
procedures for the issuance, renewal, suspension and revocation of
registration, and standards to ensure proper security, record keeping,
testing, labeling, inspection, and safety.
d. A regulation that defines the amount of marijuana that could
reasonably be presumed to be an adequate supply for qualifying
patients’ medical use, based on the best available evidence. This
presumption as to quantity may be overcome with evidence of a
particular qualifying patient’s appropriate medical use.
(2) Identification cards and registrations. The Department shall
begin issuing qualifying patient and caregiver identification cards, and
registering MMTCs no later than nine (9) months after the effective
date of this section.
(3) If the Department does not issue regulations, or if the
Department does not begin issuing identification cards and registering
MMTCs within the time limits set in this section, any Florida citizen
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shall have standing to seek judicial relief to compel compliance with
the Department’s constitutional duties.
(4) The Department shall protect the confidentiality of all
qualifying patients. All records containing the identity of qualifying
patients shall be confidential and kept from public disclosure other
than for valid medical or law enforcement purposes.
(e) LEGISLATION. Nothing in this section shall limit the legislature
from enacting laws consistent with this section.
(f) SEVERABILITY. The provisions of this section are severable
and if any clause, sentence, paragraph or section of this measure, or an
application thereof, is adjudged invalid by a court of competent
jurisdiction other provisions shall continue to be in effect to the fullest
extent possible.
The ballot title for the amendment is: “Use of Marijuana for Debilitating
Medical Conditions.” The ballot summary states:
Allows medical use of marijuana for individuals with debilitating
medical conditions 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 immunize violations of federal law or any non-medical
use, possession or production of marijuana.
On October 21, 2015, the Financial Impact Estimating Conference
forwarded to the Attorney General the following financial impact statement
regarding the initiative petition:
Increased costs from this amendment to state and local governments
cannot be determined. There will be additional regulatory costs and
enforcement activities associated with the production, sale, use and
possession of medical marijuana. Fees may offset some of the
regulatory costs. Sales tax will likely apply to most purchases,
resulting in a substantial increase in state and local government
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revenues that cannot be determined precisely. The impact on property
tax revenues cannot be determined.
No briefs or comments were submitted to this Court in support of or in
opposition to the financial impact statement.
STANDARD OF REVIEW
This Court has traditionally applied a deferential standard of
review to the validity of a citizen initiative petition and “has been
reluctant to interfere” with “the right of self-determination for all
Florida’s citizens” to formulate “their own organic law.” Advisory
Op. to Att’y Gen. re Right to Treatment & Rehab. for Non-Violent
Drug Offenses, 818 So. 2d 491, 494 (Fla. 2002).
In re Advisory Opinion to Atty. Gen. re Use of Marijuana for Certain Med.
Conditions, 132 So. 3d 786, 794 (Fla. 2014). As such, we have explained that we
are obliged to uphold a proposed amendment unless it is “clearly and conclusively
defective.” In re Advisory Op. to Att’y Gen. re Florida’s Amend. to Reduce Class
Size, 816 So. 2d 580, 582 (Fla. 2002).
When this Court renders an advisory opinion concerning a
proposed constitutional amendment arising through the citizen
initiative process, the Court limits its inquiry to two issues: (1)
whether the amendment itself satisfies the single-subject requirement
of article XI, section 3, Florida Constitution; and (2) whether the
ballot title and summary satisfy the clarity requirements of section
101.161, Florida Statutes.
Advisory Op. to Att’y Gen. re Water & Land Conservation—Dedicates Funds to
Acquire & Restore Fla. Conservation & Recreation Lands, 123 So. 3d 47, 50 (Fla.
2013).
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SINGLE-SUBJECT REQUIREMENT
Article XI, section 3, of the Florida Constitution provides that any proposed
citizen initiative amendment “shall embrace but one subject and matter directly
connected therewith.” Art. XI, § 3, Fla. Const. “In evaluating whether a proposed
amendment violates the single-subject requirement, the Court must determine
whether it has a ‘logical and natural oneness of purpose.’ ” Advisory Op. to Att’y
Gen. re Amend. to Bar Gov’t from Treating People Differently Based on Race in
Pub. Educ., 778 So. 2d 888, 891-92 (Fla. 2000) (quoting Fine v. Firestone, 448 So.
2d 984, 990 (Fla. 1984)).
This single-subject rule prevents a proposal “from engaging in either of two
practices: (a) logrolling; or (b) substantially altering or performing the functions of
multiple branches of state government.” Advisory Op. to Att’y Gen. re Water &
Conservation, 123 So. 3d at 50. This Court has defined logrolling as “a practice
wherein several separate issues are rolled into a single initiative in order to
aggregate votes or secure approval of an otherwise unpopular issue.” In re
Advisory Op. to Att’y Gen. re Save Our Everglades, 636 So. 2d 1336, 1339 (Fla.
1994). And, this Court has explained that “[a] proposal that affects several
branches of government will not automatically fail; rather it is when a proposal
substantially alters or performs the functions of multiple branches that it violates
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the single-subject test.” Advisory Op. to Att’y Gen. re Fish and Wildlife
Conservation Comm’n, 705 So. 2d 1351, 1353-54 (Fla. 1998).
We conclude that the initiative has a logical and natural oneness of purpose,
specifically, whether Floridians wish to include a provision in our state constitution
permitting the medical use of marijuana. The proposed amendment’s provision
regarding the specific role for the Department of Health in overseeing and
licensing the medical use of marijuana is directly connected with this purpose. See
Advisory Op. to Att’y Gen. re Fee on Everglades Sugar Prod., 681 So. 2d 1124,
1128 (Fla. 1996) (concluding that the proposal did not violate the single-subject
rule and explaining that “the imposition of the fee and the designation of the
revenue . . . are two components directly connected to the fundamental policy of
requiring first processors to contribute towards ongoing Everglades restoration”).
Further, the proposed amendment’s provision removing state-imposed penalties
and liability from those involved in the authorized use of medical marijuana is also
directly connected with the amendment’s purpose. Therefore, the proposed
amendment does not engage in impermissible logrolling. See Advisory Op. to
Att’y Gen. re Fla. Transp. Initiative for Statewide High Speed Monorail, Fixed
Guideway or Magnetic Levitation Sys., 769 So. 2d 367, 369 (Fla. 2000) (holding
that “there is no impermissible logrolling” where “[t]he only subject embraced in
the proposed amendment is whether the people of this State want to include a
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provision in their Constitution mandating that the government build a high speed
ground transportation system”).
Additionally, the proposed amendment does not substantially alter or
perform the functions of multiple branches. If the proposed amendment passes, the
Department of Health would perform regulatory oversight, which would not
substantially alter its function or have a substantial impact on legislative functions
or powers. The proposed amendment would require the Department of Health (or
its successor agency) to register and oversee providers, issue identification cards,
and determine treatment amounts. See Advisory Op. to Att’y Gen.—Fee on
Everglades Sugar Prod., 681 So. 2d at 1128 (“[T]he Fee amendment does not
substantially affect or alter any government function, but is a levy by an existing
agency.”); see also Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So. 2d
798, 802 (Fla. 1998) (finding that the initiative did not substantially alter the
functions of multiple branches “even though affecting the constitutional authority
of the Secretary of State and affecting more than one provision of the
constitution”). “[T]he fact that [a] branch of government is required to comply
with a provision of the Florida Constitution does not necessarily constitute the
usurpation of the branch’s function within the meaning of the single subject rule.”
Advisory Op. to Att’y Gen. re Protect People, Especially Youth, From Addiction,
Disease, & Other Health Hazards of Using Tobacco, 926 So. 2d 1186, 1192 (Fla.
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2006). Moreover, the Department of Health would not be empowered under this
proposed amendment to make the types of primary policy decisions that are
prohibited under the doctrine of non-delegation of legislative power. See Askew v.
Cross Key Waterways, 372 So. 2d 913 (Fla. 1978).
Accordingly, we conclude that the amendment complies with the single-
subject requirement of article XI, section 3.
BALLOT TITLE AND SUMMARY
We next address whether the proposed amendment will be “accurately
represented on the ballot.” Armstrong v. Harris, 773 So. 2d 7, 12 (Fla. 2000)
(emphasis omitted). We conclude that the ballot title and summary meet the
statutory requirements and accurately represent the proposed amendment on the
ballot.
Section 101.161(1), Florida Statutes (2015) provides the following clarity
requirements for the ballot title and summary:
The ballot summary of the amendment or other public measure shall
be an explanatory statement, not exceeding 75 words in length, of the
chief purpose of the measure. . . . The ballot title shall consist of a
caption, not exceeding 15 words in length, by which the measure is
commonly referred to or spoken of.
The purpose of these requirements is “to provide fair notice of the content of the
proposed amendment so that the voter will not be misled as to its purpose, and can
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cast an intelligent and informed ballot.” Advisory Op. to Att’y Gen. re Term
Limits Pledge, 718 So. 2d 798, 803 (Fla. 1998).
This Court’s review of the validity of a ballot title and summary under
section 101.161(1) involves two inquiries:
First, the Court asks whether “the ballot title and summary . . . fairly
inform the voter of the chief purpose of the amendment.” Right to
Treatment and Rehabilitation for Non-Violent Drug Offenses, 818 So.
2d [491, 497 (Fla. 2002)]. Second, the Court asks “whether the
language of the title and summary, as written, misleads the public.”
Advisory Op. to Att’y Gen. re Right of Citizens to Choose Health
Care Providers, 705 So. 2d 563, 566 (Fla. 1998).
Advisory Op. to Att’y Gen. re Fairness Initiative Requiring Leg. Determination
That Sales Tax Exemptions & Exclusions Serve a Public Purpose, 880 So. 2d 630,
635-36 (Fla. 2004).
We conclude that the ballot title and summary comply with the statutory
word limitations. Additionally, the ballot title and summary fairly inform voters of
the purpose of the proposed amendment—the state authorization of medical
marijuana for patients with debilitating medical conditions. The language is clear
and does not mislead voters regarding the actual content of the proposed
amendment. Accordingly, we conclude that the ballot title and summary comply
with the clarity requirements of section 101.161.
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FINANCIAL IMPACT STATEMENTS
We have an independent obligation to review the financial impact statement
to ensure that it is clear and unambiguous and in compliance with Florida law. See
Adv. Op. to Atty Gen. re Use of Marijuana for Certain Medical Conditions, 132
So. 3d at 809 (citing Adv. Op. to Atty Gen. re Referenda Required for Adoption &
Amend. of Local Gov’t Comprehensive Land Use Plans, 963 So. 2d 210, 214 (Fla.
2007)). Article XI, section 5(c), of the Florida Constitution provides, “The
legislature shall provide by general law, prior to the holding of an election pursuant
to this section, for the provision of a statement to the public regarding the probable
financial impact of any amendment proposed by initiative pursuant to section 3.”
Additionally, section 100.371(5)(a), Florida Statutes (2015), provides that the
financial impact statement must address “the estimated increase or decrease in any
revenues or costs to state or local governments resulting from the proposed
initiative.” Section 100.371(5)(c)2, Florida Statutes (2015), requires the financial
impact statement to be “clear and unambiguous” and “no more than 75 words in
length.”
We have explained that our “review of financial impact statements is
narrow.” Adv. Op. to Att’y Gen. re Water & Land Conservation, 123 So. 3d at 52.
We address only “whether the statement is clear, unambiguous, consists of no
more than seventy-five words, and is limited to address the estimated increase or
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decrease in any revenues or costs to the state or local governments.” Advisory Op.
to Att’y Gen. re Local Gov’t Comprehensive Land Use Plans, 963 So. 2d at 214.
We determine that the financial impact statement complies with the word
limit and meets the other statutory requirements. It clearly and unambiguously
states that there are likely increased costs associated with the additional regulatory
and enforcement activities that the proposal would require, but that the amount
could not be determined and fees may offset a portion of the increased costs.
Additionally, the financial impact statement clearly and unambiguously explains
that the Financial Estimating Conference could not determine the change in
revenue. Accordingly, we hold that the financial impact statement complies with
section 100.371(5), Florida Statutes (2015). See Advisory Op. to Att’y Gen. re
Fla. Growth Mgmt. Initiative Giving Citizens the Right to Decide Local Growth
Mgmt. Plan Changes, 2 So. 3d 118, 124 (Fla. 2008) (“Overall, the financial impact
statement is necessarily indefinite but not unclear or ambiguous.”).
CONCLUSION
Based on the foregoing, we conclude that the initiative petition and ballot
title and summary satisfy the legal requirements of article XI, section 3, of the
Florida Constitution, and section 101.161(1), Florida Statutes. In addition, the
Financial Impact Statement is in compliance with section 100.371(5), Florida
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Statutes. We therefore approve the proposed amendment and Financial Impact
Statement for placement on the ballot.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
Original Proceeding – Advisory Opinion – Attorney General
Pamela Jo Bondi, Attorney General, and Ellen B. Gwynn, Senior Assistant
Attorney General, Tallahassee, Florida,
for Petitioner
Jon L. Mills of Boies Schiller & Flexner, LLP, Miami, Florida; Timothy Edd
McLendon, Gainesville, Florida; and Andrew Mifflin Starling, Orlando, Florida,
for People United for Medical Marijuana, Sponsor
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