Opinion

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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