Florida Ballot Preview: Medical Marijuana Amendment (Am 2)

Oct 27, 2014

Amendment Two could bring medical marijuana to Florida.
Credit Brett Levin

Every morning this week, we’re taking a look at amendments on the Florida ballot.

Amendment 2 is a measure that would make medical marijuana legal in the state.  The amendment’s critics say it will lead to full-scale legalization, but supporters argue these fears are overblown.

One of the first things to jump out about the debate over Amendment 2 is just how collegial the proponents of the yes and no campaigns have been.  Earlier this month, Polk County Sherriff Grady Judd and personal injury lawyer John Morgan took part in a debate hosted by the Polk County League of Women Voters.  Judd opposes the amendment, while his opponent has been the driving force behind getting Amendment 2 drafted and placed on the ballot.  Morgan and Judd had the League in stitches all night – at one point Morgan quipped he and Judd would start a country band after the election and tour county fairs.

But despite the respect the two men have for one another, they definitely do not see eye to eye on Amendment 2.  Judd argues the amendment is a flawed proposition.  But Morgan has answers for all of Judd’s concerns. 

“He says he worries about children being prescribed medical marijuana by the doctor.  I’m not,” Morgan says.  “When was the last time your child ever got on his tricycle or bicycle and drove to the doctor’s office for a doctor’s appointment?  What you think the doctor would say if he got there?  ‘Get home.’”

Judd is correct that Amendment 2 does not define ‘qualifying patient’ in terms of age, but the measure’s author, former Florida House Speaker Jon Mills, says existing Florida statutes require parental consent before doctors can prescribe drugs to minors.  And prescription of potent painkillers to minors don’t happen very often.  According to a study conducted by the Prescription Drug Monitoring Program Center for Excellence at Brandeis University, prescription of opioids like OxyContin and Oxycodone to people younger than 18 in Florida is exceedingly rare. 

What’s more, the amendment specifically directs the Department of Health to construct a framework for medical marijuana’s distribution. If the department believes an age restriction is prudent, it could consider adding extra requirements for people below a specific age.  

Judd also argues the measure is too vague about what conditions qualify for treatment.

“There’s these special words written in as a loophole: ‘or other conditions.’  What’s an ‘other condition’?” Judd asks.  “Well, I’m not sleeping well at night, I stand up and my legs hurt, I’ve got a little stress in my life.”

Morgan says the amendment includes language for “other conditions” so the law is not too restrictive.  Leaving the list open ended puts the onus on the doctor and the Department of Health to determine when the benefits of using marijuana outweigh the risks. 

Judd also worries the proposal makes it too easy for ne’er-do-wells like drug dealers to get registered as caregivers with easy access to marijuana.  But like adding age limitations, this is an area a regulatory agency, like the Department of Health, typically handles after a law’s passage rather than before. 

The fourth concern Judd raises has to do with liability.  The amendment states patients, caregivers, physicians and treatment centers are not subject to criminal or civil liability “except as provided in this section.”

But, “Immunity is very limited. It’s only for the prescription. You still can’t do anything illegal,” Morgan says. “People – doctors who prescribe OxyContin have immunity.”

The final clause is important – the “except as provided in this section” part.  It means any of the protected groups can be taken to court if they violate the terms of the amendment.  Patients who drive under the influence of marijuana could still be arrested, physicians who recommend marijuana for cases other than debilitating medical conditions could be brought to court, and caregivers using their access to sell marijuana to non-patients could be held criminally liable.

Judd’s fifth argument against Amendment 2 has to do with concerns about marijuana’s being produced in edible forms.

“They talk about developing related products containing marijuana,” Judd says. “Think about that—gummy bears, candy, cookies, you name it—you can have it under Amendment 2.”

But really Judd is concerned about marijuana in any form.

“There’s no medical value in smoked marijuana,” Judd says. “When’s the last time you went to the doctor and they said, ‘Here, take this and smoke it until you feel better’?”

Morgan jokes with Judd about the discrepancy.

“Look, he’s hooked on these gummy bears, every time I’m with this son of a gun, he’s talking about gummy bears.  I bet you if I went out to his cruiser he’s got a whole jar full of gummy bears, because I’ve never been with him that he didn’t talk about gummy bears.  Because he’s thinking the kids are going to 7-Eleven and get gummy bears.  Listen, there’s going to be edibles.  He’s worried about smoke – we can eat it as chocolate, we can do it as butter, and if Grady gets sick I’m gonna make a big batch of gummy bears and bring it up here to Polk County for him,” he says.

Amendment 2 came about as a public initiative, rather than by a joint resolution from the House and Senate. Despite this path skirting the traditional legislative process, that doesn’t mean lawmakers have no place.  Amendment 2 includes a passage allowing the Legislature to enact any law it wishes consistent with the provision.  Lawmakers would not be able to take medical marijuana away, but if the framework put in place by the Department of Health is lacking, the Legislature will be able to step in and write laws addressing abuse. 

Next in the Florida Ballot Preview series: Amendment 3 is a proposal with major implications for the makeup of Florida Supreme Court. That story airs during Morning Edition on 88.9 WFSU-FM on Wednesday, Oct. 29.