Florida Attorney General Argues Marijuana Legalization Measure Is Misleading Voters in Brief to Supreme Court

The Florida Attorney General has filed a brief with the State Supreme Court explaining why she wants to keep the marijuana legalization initiative from the ballot in 2024. Florida Chamber of Commerce, an anti-drug group and the Florida Chamber of Commerce have also filed briefs against the measure. The measure is almost entirely funded through the multi-state cannabis firm Trulieve.

Ashley Moody, the Attorney General (R), filed her initial brief by Monday’s deadline after being granted a court extension of two weeks. Her office, as expected, is once again trying to invalidate cannabis measure. They argue that its ballot summary is misleading voters in several ways.

Moody, for example, says the initiative does not adequately inform voters about marijuana’s status as a federal crime. Her brief states that previous court opinions on legalization ballot measures “ignored the fact that voters needed clear guidance before they were asked to lift state law penalties for possession of a drug that would expose users to devastating criminal liabilities under federal law.”

The report argues that the “widespread misinformation” in the media and the propaganda of the initiative’s sponsor about the effects of the initiative makes it all the more important to be clear.

The Attorney General’s initial Brief and the initial briefs from other parties opposing marijuana use for adults have been posted. See the docket here: https://t.co/ASHoq9EFh7 pic.twitter.com/WsrzpW3mOK

FloridaSupremeCourt June 27, 2020 HTML0

The second argument of the attorney general is that it is misleading, as it implies that it will increase the number retailers available to consumers. In reality, it preserves the ability of the legislature to expand retail operations.

The brief states that “Floridians are likely to care about this issue, because greater competition would lower retail prices and improve the quality and professionalism among marijuana producers and retailers.” The brief states that “but currently, only [Medical Marijuana Treatment Centers] have the license to trade marijuana in Florida. And the proposed amendment wouldn’t change that.”

Moody stated that the ballot summary “misleads”, because it would give the impression to “reasonable” voters that the measure only “limits immunity” to possession up to three ounces. The brief claims that the measure would impose specific punishments on possession of more than the allowed amount, and limit the ability of lawmakers to raise that limit. This language, it says, would also effectively ban “most of or all marijuana cultivation” within the state.

refers to the cannabis company financing the ballot campaign. The amendment would make it more difficult for people to grow marijuana for themselves and their family members, and even for friends.

The attorney general also says that this proposal is misleading, because it “ignores the fact that the Department of Health won’t have the same constitutional authority to regulate recreational marijuana as it does in the medical marijuana area,” and that it “fails” to disclose the period of time when [medical marijuana dispensaries] would engage in unregulated recreational marijuana trade.

The attorney general’s said: “In summary, the Adult Personal Use of Marijuana Amendment asks voters to make consequential amendments to Florida’s Constitution but is not honest about what these changes would be.” The initiative should be struck down.

The Chamber of Commerce has also submitted a brief challenging the constitutionality of this initiative, arguing that the single-subject requirement for ballot measures is violated. The chamber stated that the proposal “inappropriately embraces both decriminalization and recreational marijuana commercialization.”

The Drug Free America Foundation, a non-profit organization, also filed a brief arguing that the initiative was “facially invalid” under the Supremacy Clause in the United States Constitution as it conflicted with federal law.

The state confirmed this month that Smart & Safe Florida campaign had collected enough valid signatures for to qualify the legalization initiative on the ballot in 2024.

Florida Division of Elections (which updates petition counts for the measure each month) reported that 967 528 signatures had been verified as of the end of June, exceeding the required threshold of 891 523 signatures.

The measure passed a major hurdle at the end of January. It received enough signatures for the state Supreme Court to review the language of the measure, which is being challenged by the attorney general. Moody filed an initial filing with the court last month.

Activists say they have thoroughly examined the measure, and are confident that the court will find it to be constitutional.

Moody used the same argument to oppose a legalization measure for 2022, and subsequently the Supreme Court invalidated it. The extended timeline requires that, now that the first briefing is filed, the reply briefs be submitted between July 19 and 26, according to the new deadline.

To be placed on the ballot for the next election, an initiative needs valid signatures of registered voters that total at least 8 percent in district-wide votes in the last presidential election. This is in addition to the number of signatures needed statewide. According to recently updated data, the marijuana campaign met the threshold for 14 districts.

Trulieve has donated over $39,000,000 to the Smart & Safe Florida Campaign to date.

The measure, if approved, would amend the state Constitution so that existing medical cannabis companies like Trulieve in the state could begin selling marijuana for all adults older than 21. The measure contains a clause that allows, but does not force, lawmakers to move forward with the approval of new businesses. The proposal would prohibit home cultivation by consumers.

Adults aged 21 or older could purchase and possess cannabis up to an ounce, of which only five grams would be marijuana concentrates. The three-page document also excludes equity provisions that are favored by supporters, such as expungements and other reliefs for people who have prior cannabis convictions.

A survey published in March revealed that 70 percent of Florida voters supported legalizing marijuana. Florida voters approved the medical cannabis constitutional amendment of 2016.

What would the Smart & Safe Florida initiative for marijuana legalization accomplish?

Adults aged 21 or older can purchase and possess three ounces (90 grams) of cannabis for their personal use. Cannabis concentrates are limited to five grams.

Medical cannabis dispensaries can “acquire and cultivate marijuana, manufacture marijuana products, and distribute marijuana accessories for adult personal use.”

The Legislature would have the authority, but not be required to approve any additional entities not licensed as cannabis dispensaries.

The initiative states that the proposal does not prevent the legislature from “adopting laws consistent with this Amendment.”

The amendment clarifies further that nothing in the proposal “changes federal laws,” which appears to be an attempt to avoid previous legal challenges regarding misleading ballot language.

No provisions are made for home cultivation, the expungement or social equity of previous records.

Six months after the vote, the measure will come into effect.

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This is the full text for the title and summary of the ballot:

The law allows adults over 21 to purchase or use marijuana products or marijuana accessories, whether for personal non-medical consumption, such as smoking, ingesting, or any other method. It also permits Medical Marijuana Treatment Centers and other state licensed organizations to cultivate, process and manufacture these products and accessories, while allowing them to sell and distribute them. Florida law only; federal law is not changed or immunized. Limits personal possession. Allows consistent legislation. Defines terms. Provides effective date.”

If the initiative is placed on the ballot in 2024, Florida voters will have to approve it by 60 percent to make it law.

A poll conducted in 2021 showed that the majority of Florida voters (59%) supported legalizing marijuana for adult use. This is a narrow margin, and advocates will need to work hard if this measure passes.

Activists who aren’t involved directly in the Smart & Safe Florida Campaign said last year they were exploring a plan to let voters decide about what they hope to be a complementary measure allowing adults to grow cannabis at home.

The legalization campaign should not expect support from Governor. Ron DeSantis, a Republican presidential candidate for 2024 who stated at a recent public event that would not decriminalize marijuana on a federal level if elected.