As readers of this blog know, we have written extensively on issues relating to marijuana and the legalization of marijuana. It is a particularly relevant topic these days as more states legalize marijuana either recreationally, or as Florida did in the 2016 election, for medicinal purposes. It is our belief that marijuana will ultimately be legal for all purposes in all states at some point. However, getting there is going to be a long and arduous process. Apparently, the election of Donald Trump and the appointment of Jeff Sessions as Attorney General will not do much to advance the legalization movement.
As stated, Florida did achieve a small victory in November as a majority of voters approved an initiative to legalize medical marijuana in Florida. I decided to write this article to give people a little better understanding of what that means in Florida and to alert people that Shorstein, Lasnetski & Gihon is prepared to assist professionals who are seeking to enter the marijuana industry in Florida. As Colorado, Washington, Oregon and other states have shown in a short period of time, the marijuana industry is going to be tremendous.
So what new rights does the Florida medical marijuana law confer on qualified people in Florida? It allows people with certain medical conditions to obtain a certificate from a doctor that can be used to ultimately obtain marijuana to treat those conditions. The law does not allow just anyone with any medical problem or aches and pains to go to any doctor and request a certificate for medical marijuana. Only certain medical conditions qualify. Those include: ALS, cancer, HIV/AIDS, Crohn’s disease, epilepsy, glaucoma, multiple sclerosis, Parkinson’s disease and PTSD. As you can see, these are very serious medical conditions of which a patient must have a documented record to move forward with medical marijuana treatment.
However, the law also includes a more general category that gives doctors some leeway to provide a patient with a medical marijuana certificate. The law also allows medical marijuana for someone with any other condition of the same severity or symptoms (as those conditions listed above) where the doctor determines that the medical use of marijuana would surpass any potential health risks. The wording here is interesting. On one hand, a requirement that any other ailment have similar symptoms to those of the most serious medical conditions listed above would seem to severely limit a doctor’s authority to provide a patient with a medical marijuana certificate based on this catchall category. On the other hand, the law allows for the doctor to conduct a balancing test when considering a patient’s medical condition. The physician must balance the health risks involved in providing marijuana to a patient with a medical problem. Given that marijuana is very safe, relative to prescription drugs, this could be viewed as allowing for a very low threshold for providing patients with any sort of serious or painful symptoms with medical marijuana. In other words, given how safe marijuana has proven to be without the debilitating side effects and addictive qualities of many prescription drugs, it may not require an extremely serious medical condition to authorize a medical marijuana certificate because serious health risks of marijuana just are not present.
In any case, the decision to issue a certificate for medical marijuana is left with a qualified doctor and allows for discretion even when a patient does not have one of the very serious conditions specifically listed in the new law. However, not all doctors are qualified. A doctor in Florida has to go through the proper training and obtain a specific license to issue a medical marijuana certificate. Fortunately, there is a list of qualified doctors that is continuously updated. That list can be viewed here. At this point, the list is long enough that just about everyone in Florida should have a doctor within a reasonable distance who can evaluate him/her for a medical marijuana certificate.
There are other requirements that a patient must meet before he/she can become eligible for a medical marijuana certificate. For instance, a medical marijuana candidate has to be at least 18 years of age (although minors may be able to get a marijuana certificate with the consent of a parent or guardian), must show proof of residency in Florida and must get a medical marijuana card from the Department of Health. The Department of Health is not yet issuing medical marijuana cards. In fact, medical marijuana in Florida is still in its nascent stage. The Florida legislature and relevant agencies still have to write the rules and regulations that will dictate the operation of medical marijuana in Florida. The actual medical marijuana law that passed in November was very short relative to other state’s laws so there is plenty of work to do.
The good news is that we are slowly but surely working towards a scenario where patients can reject dangerous, addictive prescription drugs for their medical problems and treat them with marijuana instead. We will eventually get to a point where the government does not waste valuable resources and money to put people into the criminal justice system, put them in jail and give them criminal records for using a plant. In the meantime, there is a lot of work to do and a tremendous opportunity to support and benefit from this industry.