Advisory Opinion to the Attorney General Re: Regulate Marijuana in a Manner Similar to Alcohol to Establish Age, Licensing, and Other Restrictions

Supreme Court of Florida

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No. SC19-1536

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ADVISORY OPINION TO THE ATTORNEY GENERAL RE:

REGULATE MARIJUANA IN A MANNER SIMILAR TO ALCOHOL

TO ESTABLISH AGE, LICENSING, AND OTHER RESTRICTIONS.

June 17, 2021

PER CURIAM.

The Attorney General of Florida has requested this Court’s

opinion concerning the validity of an initiative petition circulated

pursuant to article XI, section 3 of the Florida Constitution. We

have jurisdiction, see art. IV, § 10, art. V, § 3(b)(10), Fla. Const.,

and conclude that because the ballot summary is affirmatively

misleading, the proposed initiative should not be placed on the

ballot.

BACKGROUND

On September 11, 2019, the Attorney General petitioned this

Court for an advisory opinion regarding the validity of an initiative

petition sponsored by Sensible Florida, Inc. (the Sponsor) and titled

“Regulate Marijuana in a Manner Similar to Alcohol to Establish

Age, Licensing, and Other Restrictions.” The Attorney General asks

whether the proposed amendment complies with the single-subject

requirement of article XI, section 3 of the Florida Constitution, and

whether the ballot title and summary comply with the clarity

requirements of section 101.161(1), Florida Statutes (2020). The

Attorney General submitted a brief opposing the initiative petition.

Opposing briefs were also submitted by: (1) the Florida House of

Representatives; and (2) the Florida Chamber of Commerce, the

Drug Free America Foundation, the National Drug-Free Workplace

Alliance, and Save Our Society from Drugs. The Sponsor filed a

brief in support of the initiative petition. And oral argument was

held on February 4, 2020.

Text of the Proposed Amendment

The proposed amendment, which claims it would add a new

section 29 to article X of the Florida Constitution, 1 reads as follows:

1. Article X, section 29 of the Florida Constitution already

exists and addresses medical marijuana. The proposed amendment

at issue here was drafted before section 29 was added to article X.

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ARTICLE X, SECTION 29. Florida Cannabis Act —

(a) Purpose and findings.

(1) Short title. On the effective date of this

amendment, it shall be known as the “Florida

Cannabis Act.”

(2) In the interest of the efficient use of law

enforcement resources, enhancing revenue for

public purposes, and individual freedom, the people

of the State of Florida find and declare that the use

of cannabis should be legal for persons twenty-one

years of age or older.

(3) In the interest of the health and public safety of

our citizenry, the people of the State of Florida

further find and declare cannabis should be

regulated in a manner similar to alcohol so that:

a. Consumers will have to show proof of age

before purchasing cannabis;

b. Selling, distributing, or transferring

cannabis to minors under the age of twenty-

one shall remain illegal;

c. Driving while impaired under the influence

of cannabis shall remain illegal;

d. Only legitimate, taxpaying business people

will conduct sales of cannabis; and

e. Cannabis sold in this state will be labeled

and subject to additional regulations to ensure

consumers are informed and protected.

(4) The people of the State of Florida further find

and declare it is necessary to ensure consistency

and fairness in the application of this section

throughout the state and that, therefore, the

matters addressed by this section are, except as

specified herein, matters of statewide concern.

(b) Definitions. As used in this section, unless the

context otherwise requires:

(1) “Applicant” means an individual person or any

form of business that applies for a license to operate

a cannabis establishment. Any person or business

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entity may hold multiple licenses, providing each

license be applied for and renewed individually and

independently of any other license.

(2) “Business entity” means any form of business

operation recognized under Florida law, including

partnership that is registered to do business in

Florida prior to filing for a license to operate a

cannabis establishment.

(3) “Cannabis” means all parts of the plant of the

genus Cannabis, as defined in s. 893.02(3), Florida

Statutes (2016). Nothing in this definition or this

section shall be deemed to permit or prohibit the

cultivation of the plant of the genus Cannabis as a

raw material for use of its fiber or pectin, or its

structural polymers (the polysaccharides cellulose

and hemicelluloses and the aromatic polymer lignin)

for any industrial purpose, including the

preparation of functionalized textiles, or for any

purpose other than human consumption.

(4) “Cannabis cultivation facility” means an entity

licensed to cultivate, prepare, and package cannabis

and sell cannabis to retail cannabis stores, to

cannabis product manufacturing facilities, and to

other cannabis cultivation facilities, but not to

consumers.

(5) “Cannabis establishment” means a cannabis

cultivation facility, a cannabis testing facility, a

cannabis product manufacturing facility, or a retail

cannabis store.

(6) “Cannabis plant” means a plant, including, but

not limited to, a seedling or cutting. To determine if

a piece or part of a cannabis plant severed from the

cannabis plant is itself a cannabis plant, the

severed piece or part must have some readily

observable evidence of root formation, such as root

hairs. Callous tissue is not readily observable

evidence of root formation. The viability and sex of

a plant and the fact that the plant may or may not

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be a dead harvested plant are not relevant in

determining if the plant is a cannabis plant.

(7) “Cannabis product manufacturing facility”

means an entity licensed to purchase cannabis;

manufacture, prepare, and package cannabis

products; and sell cannabis and cannabis products

to other cannabis product manufacturing facilities

and to retail cannabis stores, but not to consumers.

(8) “Cannabis products” means concentrated

cannabis products and cannabis products that are

comprised of cannabis and other ingredients

intended for human consumption or human topical

application, including but not limited to, edible

products, infused products, ointments, and

tinctures.

(9) “Cannabis testing facility” means an entity

licensed to analyze and certify the safety and

potency of cannabis.

(10) “Consumer” means a person twenty-one years

of age or older who purchases cannabis or cannabis

products for personal use by persons twenty-one

years of age or older, but not for resale to others.

Consumer does not include any form of business

entity, partnership, or incorporation.

(11) “Corporation” means any form of business

entity, partnership, joint venture, limited liability

company, cooperative, or other manner of

incorporation.

(12) “County” means a political subdivision of the

state established pursuant to s. 1, Art. VIII of the

State Constitution.

(13) “Department” means the Florida Department of

Business & Professional Regulation or its successor

agency.

(14) “Florida Cannabis Act” means this section of

the Florida Constitution, and as may be codified.

(15) “Municipality” means a municipality created

under general or special law or recognized pursuant

to s. 2 or s. 6, Art. VIII of the State Constitution.

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(16) “Retail cannabis store” means an entity

licensed to purchase cannabis from cannabis

cultivation facilities and cannabis products from

cannabis product manufacturing facilities and to

sell cannabis and cannabis products to consumers.

(c) Personal use of cannabis. Notwithstanding any other

provision of law, the following acts are not unlawful and

shall not be an offense under Florida law or the law of

any county or municipality within Florida or be a basis

for seizure or forfeiture of assets under Florida law for

persons twenty-one years of age or older. These are

minimum quantities, subject to increase by state, county,

or municipal legislation, but not subject to decrease:

(1) Possessing, using, displaying, purchasing, or

transporting cannabis, and cannabis products in

quantities reasonably indicative of personal use or

for use by household members;

(2) Growing six mature flowering cannabis plants

per household member twenty-one years of age or

older and possessing the harvest therefrom,

provided the growing takes place indoors or in a

locked greenhouse and the cannabis grown is not

made available for sale; outdoor growing for

personal consumption is not herein permitted

statewide, but may be permitted locally if approved

by legislation created at the county or municipal

level; nothing in this subsection shall prevent the

state legislature from creating laws that permit

outdoor growing for personal consumption;

(3) Transfer of one ounce or less of cannabis without

remuneration to a person who is twenty-one years

of age or older;

(4) Allowing or restricting consumption of cannabis

within a private business establishment or on its

premises consistent with this section; or

(5) Assisting another person who is twenty-one

years of age or older in any of the acts described in

paragraphs (1) through (5) of this subsection.

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(d) Lawful operation of cannabis establishment.

Notwithstanding any other provision of law, the following

acts are not unlawful and shall not be an offense under

Florida law or be a basis for seizure or forfeiture of assets

under Florida law for persons twenty-one years of age or

older:

(1) Possessing, displaying, or transporting cannabis

or cannabis products; purchase of cannabis from a

cannabis cultivation facility; purchase of cannabis

or cannabis products from a cannabis product

manufacturing facility; or sale of cannabis or

cannabis product to consumers, if the person

conducting the activities described in this

subsection has obtained a current, valid license to

operate a retail cannabis store or is acting in his or

her capacity as an owner, employee or agent of a

licensed retail cannabis store;

(2) Cultivating, harvesting, processing, packaging,

transporting, displaying, or possessing cannabis;

delivery or transfer of cannabis to a cannabis

testing facility; selling cannabis to a cannabis

cultivation facility, a cannabis product

manufacturing facility, or a retail cannabis store; or

the purchase of cannabis from a cannabis

cultivation facility, if the person conducting the

activities described in this subsection has obtained

a current, valid license to operate a cannabis

cultivation facility or is acting in his or her capacity

as an owner, employee, or agent of a licensed

cannabis cultivation facility;

(3) Packaging, processing, transporting,

manufacturing, displaying, or possessing cannabis

or cannabis products; delivery or transfer of

cannabis or cannabis products to a cannabis

testing facility; selling cannabis or cannabis

products to a retail cannabis store or a cannabis

product manufacturing facility; the purchase of

cannabis from a cannabis cultivation facility; or the

purchase of cannabis or cannabis products from a

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cannabis product manufacturing facility, if the

person conducting the activities described in this

subsection has a current, valid license to operate a

cannabis product manufacturing facility or is acting

in his or her capacity as an owner, employee, or

agent of a licensed cannabis product manufacturing

facility;

(4) Possessing, cultivating, processing, repackaging,

storing, transporting, displaying, transferring or

delivering cannabis or cannabis products in

connection with testing activities, if the person has

obtained a current, valid license to operate a

cannabis testing facility or is acting in his or her

capacity as an owner, employee, or agent of a

licensed cannabis testing facility; or

(5) Leasing or otherwise allowing the use of property

owned, occupied or controlled by any person,

corporation or other entity for any of the activities

conducted lawfully in accordance with paragraphs

(1) through (5) of this subsection.

(e) Regulation of cannabis.

(1) No later than 6 months from the effective date,

the department shall adopt regulations necessary

for implementation of this section to include:

a. Procedures for the issuance, renewal,

suspension, and revocation of a license to

operate a cannabis establishment, with such

procedures subject to all requirements of s.

120.54, Florida Statutes (2016) or as

amended;

b. Any license issued to an individual person

shall only be issued to a person of good moral

character who is not less than twenty-one

years of age and who has resided in the United

States for the preceding five years and who has

been a U.S. citizen for the preceding five years

or has established lawful permanent residence

in the United States for the preceding five

years as evidenced by a “Green Card” and has

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resided in the United States for the preceding

five years.

c. Any license issued to a business entity shall

only be issued to a business entity of which all

directors of a corporate applicant, members of

a limited liability applicant, partners of a

partnership applicant, or joint venturors of a

joint venture applicant are of good moral

character, are not less than twenty-one years

of age, and at least 75% thereof have resided

in the United States for the preceding five

years and have been a U.S. citizen for the

preceding five years or have established lawful

permanent residence in the United States for

the preceding five years as evidenced by a

“Green Card” and have resided in the United

States for the preceding five years;

d. That in the case of an individual applicant,

any license shall be issued only to a person

who has been domiciled in the State of Florida

for at least 6 months immediately prior to

applying;

e. That in the case of a business entity

applicant, any license shall be issued only to

business entities that can show at least 25% of

the directors, members, partners, or joint

venturor applicants have been domiciled in the

State of Florida for at least 6 months

immediately prior to applying;

f. That no license under this section shall be

issued to any person, director, member,

partner, or joint venturor who has been

convicted of a felony offense, except that [sic] if

the licensing authority determines that the

applicant or licensee is otherwise suitable to be

issued a license and granting the license would

not compromise public safety. In making this

determination the licensing authority shall

conduct a thorough review of the nature of the

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crime, conviction, circumstances, and evidence

of rehabilitation of the applicant, and shall

evaluate the suitability of the applicant or

licensee to be issued a license based on the

evidence found through the review. In

determining which offenses are substantially

related to the qualifications, functions, or

duties of the business or profession for which

the application is made, the licensing authority

shall include any felony conviction.

g. In the case of a business entity applicant,

the requirements stated in this subsection

shall apply to each and every director,

member, partner, or joint venturor in a

business entity, but not to persons that are

solely investors or owners; and

h. The department may suspend or revoke a

license under this section, or may refuse to

issue a license under this section to:

1. Any person, firm, or corporation the

license of which under this section has

been revoked or has been abandoned

after written notice that revocation or

suspension proceedings had been or

would be brought against the license;

2. Any corporation if an officer or director

of the corporation has had her or his

license under this section revoked or has

abandoned her or his license after written

notice that revocation or suspension

proceedings had been or would be

brought against her or his license; or

3. Any person who is or has been an

officer or director of a corporation, or who

directly or indirectly closely held an

ownership interest in a corporation, the

license of which has been revoked

or abandoned after written notice that

revocation or suspension proceedings had

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been or would be brought against the

license.

i. Security requirements for cannabis

establishments;

j. Requirements to prevent the sale or

diversion of cannabis and cannabis products

to persons under the age of twenty-one;

k. Labeling and packaging requirements for

cannabis and cannabis products sold or

distributed by a cannabis establishment;

1. Health and safety regulations and standards

for the manufacture and testing of cannabis

products and the cultivation of cannabis;

m. Guidelines on the advertising and display of

cannabis and cannabis products; and

n. Civil penalties for the failure to comply with

regulations made pursuant to this section.

(2) In order to protect consumer privacy, the

department shall not require a consumer to provide

a retail cannabis store with personal information

other than government-issued identification to

determine the consumer’s age, and a retail cannabis

store shall not be required to acquire and record

personal information about consumers other than

information typically acquired in a financial

transaction conducted at a retail liquor store.

(3) Nothing contained in this section shall be

construed to create nor in any way limit any taxing

authority to make, collect, administer, enforce or

distribute any tax levy relating to this section under

any taxing authority’s power to tax authorized by

the constitution or the laws of this state.

(4) No later than 6 months from the effective date,

each county or municipality shall enact an

ordinance or regulation specifying the entity within

the county or municipality responsible for

processing applications submitted for a license to

operate a cannabis establishment within the

boundaries of the county or municipality and for the

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issuance of any such license should the issuance by

the county or municipality become necessary

because of a failure by the department to adopt

regulations pursuant to subsection (e)(1) or failure

by the department to process a license application

in accordance with subsection (e)(6).

(5) A county or municipality may enact ordinances

or regulations not in conflict with this section or

state regulations or legislation.

a. Governing the time, place, manner, and

number of cannabis establishment operations;

b. Establishing procedures for the issuance,

suspension, and revocation of a license issued

by the county or municipality in accordance

with subsections (e)(7) or (e)(8), such

procedures to be subject to all requirements of

s. 120.54, Florida Statutes (2016) or as

amended; and

c. Establishing civil penalties for violation of an

ordinance or regulation governing the time,

place, and manner of a cannabis

establishment that may operate in such

county or municipality, whether licensed by

the state, a county or municipality.

(6) Each application for an annual license to operate

a cannabis establishment shall be submitted to the

department. The department shall:

a. Begin accepting and processing applications

6 months from the effective date;

b. Upon request by the county or municipality,

immediately forward a copy of each application

to the county in which the applicant desires to

operate;

c. Issue an annual license to the applicant

between forty-five and ninety days after receipt

of an application unless the department finds

the applicant is not in compliance with

regulations enacted pursuant to subsection

(e)(1) or the department is notified by the

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relevant county or municipality that the

applicant is not in compliance with subsection

(e)(5) in effect at the time of application,

provided, where a county or municipality has

enacted a numerical limit on the number of

cannabis establishments and a greater

number of applicants seek licensing, the

department shall solicit and consider input

from the county or municipality as to the

county or municipality’s preference for

licensure; and

d. Upon denial of an application, notify the

applicant in writing of the specific reason for

its denial.

(7) If the department does not issue a license to an

applicant within ninety days of receipt of the

application filed in accordance with subsection (e)(6)

and does not notify the applicant of the specific

reason for its denial, or the specific reason as to

why the applicant is not in compliance with

regulations enacted pursuant to subsection (e)(1), in

writing, within such time period, the applicant may

resubmit the application directly to the county or

municipality, pursuant to subsection (e)(5), and the

county or municipality may issue an annual license

to the applicant. A county or municipality issuing a

license to an applicant shall do so within ninety

days of receipt of the resubmitted application unless

the county or municipality finds and notifies the

applicant that the applicant is not in compliance

with ordinances and regulations made pursuant to

subsection (e)(5) in effect at the time the application

is resubmitted. The county or municipality shall

notify the department if an annual license has been

issued to the applicant. A license issued by a

county or municipality in accordance with this

subsection shall have the same force and effect as a

license issued by the department in accordance

with subsection (e)(6). A subsequent or renewed

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license may be issued under this subsection on an

annual basis only upon resubmission to the county

or municipality of a new application submitted to

the department pursuant to subsection (e)(6), if the

department does not issue a license to an applicant

within ninety days of receipt of the application for a

subsequent or renewed annual license filed in

accordance with subsection (e)(6) and does not

notify the applicant of the specific reason for its

denial, or the specific reason as to why the

applicant is not in compliance with regulations

enacted pursuant to subsection (e)(1), in writing,

within such time period. Nothing in this subsection

shall limit such relief as may be available to an

aggrieved party under ss. 120.56, 120.565,

120.569, 120.57, 120.573, or 120.574, Florida

Statutes (2016) or as amended.

(8) If the department does not adopt regulations in

accordance with subsection (e)(1), an applicant may

submit an application directly to a county or

municipality after 6 months from the effective date,

and the county or municipality may issue an

annual license to the applicant. A county or

municipality issuing a license to an applicant shall

do so within ninety days of receipt of the

application, unless it finds and notifies the

applicant that the applicant is not in compliance

with ordinances and regulations made pursuant to

subsection (e)(5) in effect at the time of application,

and shall notify the department if an annual license

has been issued to the applicant. A license issued

by a county or municipality in accordance with this

subsection shall have the same force and effect as a

license issued by the department in accordance

with subsection (e)(6). A subsequent or renewed

license may be issued under this subsection on an

annual basis if the department has not adopted

regulations in accordance with subsection (e)(1) at

least ninety days prior to the date upon which such

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subsequent or renewed license would be effective or

if the department has adopted regulations pursuant

to subsection (e)(1) but has not, at least ninety days

after the adoption of such regulations, issued the

license pursuant to subsection (e)(6) and has not

notified the applicant, in writing, of the specific

reason for its denial.

(9) A county or municipality may prohibit the

licensing of a cannabis establishment whether

licensed by the department, county or municipality,

providing the prohibition is approved by a vote of

the electorate in a general election during an even

numbered year. Grandfather clause.—If any county

or municipality prohibits the licensing of any

cannabis establishment under this subsection, any

license issued prior to the effective date of any such

county or municipal prohibition shall continue in

full force, be subject to renewal, and in no way be

affected by any post-licensing prohibition enacted

under this subsection.

(f) Employers, driving, minors, control of property, and

federal law.

(1) Nothing in this section is intended to require an

employer to permit or accommodate the use,

consumption, possession, transfer, display,

transportation, sale, or growing of cannabis in the

workplace or to affect or repeal the ability of

employers to have policies restricting the use of

cannabis by employees during work hours.

(2) Nothing in this section is intended to allow

driving while impaired by cannabis, nor shall this

section prevent the state from criminal penalties

pursuant to s. 316.193, Florida Statutes (2016) or

as amended.

(3) Nothing in this section is intended to permit the

transfer of cannabis, with or without remuneration,

to a person under the age of twenty-one or to allow

a person under the age of twenty-one to purchase,

possess, use, transport, grow, or consume

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cannabis, except as otherwise permitted under state

law or the Florida Constitution.

(4) Nothing in this section shall prohibit a person,

employer, corporation or any other entity who

occupies, owns or controls a residency or detention

facility, whether public or private, when residence

or detention is incidental to the provision of

medical, geriatric, educational, counseling,

rehabilitation, correctional, or similar services;

transient occupancy in a hotel, condominium,

motel, rooming house, or similar public lodging, or

transient occupancy in a mobile home park;

occupancy by a holder of a proprietary lease in a

cooperative apartment; or occupancy by an owner of

a condominium unit from prohibiting or otherwise

regulating the possession, consumption, use,

display, transfer, distribution, sale, transportation,

or growing of cannabis on or in that property.

(5) Nothing in this section purports to give

immunity under federal law for possession,

consumption, use, display, transfer, distribution,

sale, transportation, or growing of cannabis.

(g) The Florida Cannabis Act’s effect on other Florida laws

relating to cannabis or marijuana.

(1) Nothing in this section shall be construed to

affect or repeal s. 112.0455, Florida Statutes (2016)

(Drug-Free Workplace Act) except as stated herein.

(2) Nothing in this section shall be construed to

affect or repeal s. 327.38, Florida Statutes (2016)

(use of water skis, aquaplane, or similar device from

a vessel while under the influence of marijuana).

(3) Nothing in this section shall be construed to

limit or extend any privilege, right, or duty on the

part of medical cannabis dispensing organizations,

qualified patients, physicians, caregivers or any

other persons, entities, or activities governed by

Florida’s Compassionate Use of low-THC Cannabis

Act, s. 381.986 et seq., Florida Statutes (2016) or as

amended.

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(4) The Florida Legislature shall, no later than 6

months from the effective date, revise s.

775.087(2)(a)1(q), Florida Statutes (2016) (actual

possession of a firearm or destructive device) to

qualify the word “cannabis” to accommodate

possession consistent with this section.

(5) The Florida Legislature shall, no later than 6

months from the effective date, revise s.

775.087(3)(a)1(r), Florida Statutes (2016) or as

amended (actual possession of a semiautomatic

firearm and its high capacity detachable box

magazine, or a machine gun) to qualify the word

“cannabis” to accommodate possession consistent

with this section.

(6) The Florida Legislature shall, no later than 6

months from the effective date, revise s.

812.14(6)(b), Florida Statutes (2016) or as amended

(use of utility services to grow marijuana indoors) to

accommodate use of utility services consistent with

this section.

(7) The Florida Legislature shall, no later than 6

months from the effective date, revise ss. 893.145-

893.147, Florida Statutes (2016) or as amended, to

qualify the definition of “drug paraphernalia,” the

determination of paraphernalia, and the use,

possession, manufacture, delivery, transportation,

advertisement, or retail sale of drug paraphernalia

consistent with this section, and shall otherwise

revise, Chapter 893, Florida Statutes (2016) (drug

abuse prevention and control) as needed to qualify

and quantify cannabis possession and use

consistent with this section.

(h) Self-executing, severability, conflicting provisions. All

provisions of this section are self-executing except as

specified herein. All provisions of this section are

severable, and, except where otherwise indicated in the

text, shall supersede conflicting state statutory, local

charter, ordinance, or resolution, and other state and

local provisions.

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(i) Effective date. Except as otherwise provided herein, all

provisions of this proposed amendment shall be effective

as an amendment to the Constitution of the State of

Florida on the first Tuesday after the first Monday in

January following the election.

Ballot Title and Summary

The ballot title for the proposed amendment is: “Regulate

Marijuana in a Manner Similar to Alcohol to Establish Age,

Licensing, and Other Restrictions.” The ballot summary states:

Regulates marijuana (hereinafter “cannabis”) for limited

use and growing by persons twenty-one years of age or

older. State shall adopt regulations to issue, renew,

suspend, and revoke licenses for cannabis cultivation,

product manufacturing, testing and retail facilities. Local

governments may regulate facilities’ time, place and

manner and, if state fails to timely act, may license

facilities. Does not affect compassionate use of low-THC

cannabis, nor immunize federal law violations.

ANALYSIS

Standard of Review

Ordinarily, this Court’s review of the validity of an initiative

petition “is limited to two issues: (1) whether the amendment

violates the single-subject requirement of article XI, section 3 of the

Florida Constitution, and (2) whether the ballot title and summary

violate the requirements of section 101.161(1), Florida Statutes.”

Advisory Op. to Att’y Gen. re Indep. Nonpartisan Comm’n to

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Apportion Legis. & Cong. Dists. Which Replaces Apportionment by

Legislature, 926 So. 2d 1218, 1223 (Fla. 2006). 2 We “appl[y] a

deferential standard of review.” Advisory Op. to Att’y Gen. re Use of

Marijuana for Certain Med. Conditions, 132 So. 3d 786, 794 (Fla.

2014) (Medical Marijuana I). We invalidate a proposal only if it is

shown to be “clearly and conclusively defective.” Advisory Op. to

Att’y Gen. re Amendment to Bar Gov’t from Treating People

Differently Based on Race in Pub. Educ., 778 So. 2d 888, 891 (Fla.

2000).

Here, we conclude that the initiative petition meets the “high

threshold” of being “clearly and conclusively defective.” Advisory

Op. to Att’y Gen. re Limits or Prevents Barriers to Local Solar Elec.

Supply, 177 So. 3d 235, 246 (Fla. 2015). Specifically, the ballot

summary is affirmatively misleading and thus fails to comply with

section 101.161.

2. Recent legislation amended existing statutes to among

other things expand the scope of this Court’s review of initiative

petitions to include “whether the proposed amendment is facially

invalid under the United States Constitution.” Ch. 2020-15, § 2,

Laws of Fla. We have not been asked to, nor do we, address that

legislation in this case.

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Section 101.161, Florida Statutes

Section 101.161(1) sets forth certain clarity requirements for

ballot titles and summaries. The ballot summary for an initiative

petition is limited to seventy-five words, must “be printed in clear

and unambiguous language on the ballot,” and “shall be an

explanatory statement . . . of the chief purpose of the measure.”

§ 101.161(1), Fla. Stat. The ballot title is limited to fifteen words

and “shall consist of a caption . . . by which the measure is

commonly referred to or spoken of.” Id. “The purpose of these

[statutory] 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 cast an intelligent and informed ballot.’ ”

Advisory Op. to Att’y Gen. re Use of Marijuana for Debilitating Med.

Conditions, 181 So. 3d 471, 478 (Fla. 2015) (Medical Marijuana II)

(quoting Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So. 2d

798, 803 (Fla. 1998)). In determining whether the statutory

requirements are satisfied, we “consider two questions: (1) whether

the ballot title and summary, in clear and unambiguous language,

fairly inform the voters of the chief purpose of the amendment; and

(2) whether the language of the ballot title and summary, as written,

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will be affirmatively misleading to voters.” Medical Marijuana I, 132

So. 3d at 797.

Here, we address only one of the issues raised by the

opponents of the measure—an issue that is clearly dispositive.

Namely, the opponents take issue with the language in the ballot

summary that states the proposed amendment would regulate

marijuana “for limited use and growing by persons twenty-one years

of age or older.” They contend that the text of the proposed

amendment itself does not limit the personal “use” of marijuana

and that the ballot summary therefore affirmatively misleads voters.

We agree.

The ballot summary plainly tells voters that the proposed

amendment “limit[s]” the personal use—i.e., consumption—of

recreational marijuana by age-eligible persons. But the proposed

amendment itself does not do so. The relevant provision in the

proposed amendment is section (c), titled “Personal use of

cannabis.” That section provides in part that it shall not be

unlawful for an age-eligible person to engage in certain acts

including “using . . . cannabis, and cannabis products in quantities

reasonably indicative of personal use or for use by household

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members.” Even if this language, when viewed in isolation, could

somehow be argued to establish a limitation on personal use in an

amount equal to a “quantit[y] reasonably indicative of personal use

or for use by household members,” any such argument is

undermined by the fact that the same section of the proposed

amendment further provides that the enumerated quantities “are

minimum quantities, subject to increase by state, county, or

municipal legislation, but not subject to decrease.” In other words,

the proposed amendment establishes a quantity floor below which

an age-eligible person cannot be prosecuted, while at the same time

authorizing the state and local governments to permit unlimited

personal use of recreational marijuana. And although other

sections of the proposed amendment leave open the possibility that,

for example, businesses might decide to limit or prohibit the use of

marijuana on their property, the proposed amendment itself does

not limit the use of marijuana. But the ballot summary tells voters

otherwise.

A ballot title and summary “need not explain every detail or

ramification of the proposed amendment.” Advisory Op. to Att’y

Gen. re Prohibiting Pub. Funding of Political Candidates’ Campaigns,

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693 So. 2d 972, 975 (Fla. 1997). But they nevertheless “must be

accurate.” Advisory Op. to Att’y Gen. re Protect People, Especially

Youth, from Addiction, Disease, & Other Health Hazards of Using

Tobacco, 926 So. 2d 1186, 1194 (Fla. 2006). As we have stated, “[a]

proposed amendment must be removed from the ballot when the

summary does not accurately describe the scope of the text of the

amendment, because it has failed in its purpose.” Detzner v.

League of Women Voters of Fla., 256 So. 3d 803, 808 (Fla. 2018).

The ballot summary here is not accurate. It falsely tells voters that

the proposed amendment limits the use of recreational marijuana.

Because the proposed amendment itself “does no such thing,” it

should not be placed on the ballot. See Advisory Op. to Att’y Gen. re

Right to Competitive Energy Mkt. for Customers of Inv’r-Owned Utils.,

287 So. 3d 1256, 1260-61 (Fla. 2020) (concluding that the ballot

summary was affirmatively misleading for “tell[ing] voters that the

proposed amendment grants a personal right to ‘sell electricity,’

when in fact the amendment does no such thing”).

The Sponsor offers only a feeble argument in defense of the

“limited use” language. The Sponsor begins by reasoning that

“ ‘limited’ means not unlimited.” By that logic, we should read the

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ballot summary as follows: “Regulates marijuana . . . for the not

unlimited use . . . by persons twenty-one years of age or older.” But

even if we were to read the summary in this absurd manner, it

would not change the fact that the proposed amendment itself does

not limit personal use to some less-than-unlimited amount. In

other words, it would be more accurate if the summary stated:

“Regulates marijuana . . . for the potentially unlimited use . . . by

persons twenty-one years of age or older.” The summary instead

misleadingly tells voters that the proposed amendment limits the

use of marijuana.

The remainder of the Sponsor’s reasoning is as follows:

Unlike the purchase of other agricultural products,

adult-access to marijuana is subject to an age limit

(Petition (c) and (c)(5), p. 3); possession limit (Petition

(c)(1), p. 3); a growing limit (Petition (c)(2), p. 3); a gifting

limit (Petition (c)(3), p. 3); and limits on the time, place

and manner of its use (Petition (e)(5)(a) and (c), p. 7).

Even included in the amendment is the right for counties

and municipalities to opt out of adult-use cannabis

licensing completely within their jurisdiction. This can

be done by setting the limit on adult-use cannabis

facilities to zero (Petition (e)(9), p. 8).

Even under a deferential standard of review, we cannot adopt this

flawed reasoning. As an initial matter, the initiative’s “age limit” is

clearly not the “limited use” contemplated by the ballot summary.

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Indeed, the summary tells voters that the measure will regulate

marijuana “for limited use . . . by persons twenty-one years of age

or older.” The summary thus informs voters that the initiative

imposes use limitations on age-eligible persons, not that the age

limitation is itself a “use” limitation. Secondly, “use” cannot be

synonymous with “possession,” “growing,” or “gifting.” Indeed, the

initiative separately addresses those activities. And lastly, the

Sponsor’s assertion that sections (e)(5)a. and (e)(5)c. of the initiative

impose “limits on the time, place and manner of [marijuana] use”

finds no support in the text of those sections. Section (e)(5)a., for

example, contemplates the future enactment of local ordinances or

regulations “[g]overning the time, place, manner, and number of

cannabis establishment operations.” That section thus addresses

commercial facilities, not personal use of marijuana. The Sponsor’s

inability to point to anything in the text of the measure that could

credibly support the “limited use” language in the summary leaves

no doubt that the summary is affirmatively misleading.

CONCLUSION

We conclude that the language in the ballot summary

indicating that the proposed amendment “[r]egulates marijuana . . .

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for limited use . . . by persons twenty-one years of age or older” is

affirmatively misleading and fails to comply with section 101.161(1),

Florida Statutes. Accordingly, the proposed amendment should not

be placed on the ballot.

It is so ordered.

CANADY, C.J., and POLSTON, MUÑIZ, COURIEL, and

GROSSHANS, JJ., concur.

LAWSON, J., dissents with an opinion, in which LABARGA, J.,

concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION

AND, IF FILED, DETERMINED.

LAWSON, J., dissenting.

I respectfully dissent. I acknowledge that this is a close case

and that the dispositive legal issue here is materially different than

that in Advisory Opinion to the Attorney General re: Adult Use of

Marijuana (Adult Use), 46 Fla. L. Weekly S87 (Fla. Apr. 22, 2021), in

which I also dissented. Although the majority in both cases found

the summaries to be affirmatively misleading, the ballot summary

at issue in Adult Use did not mislead at all with respect to the

change in Florida law that would occur if the amendment had been

adopted. Rather, the majority found that the summary misled by

not explaining that the amendment, if passed, would leave federal

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statutes outlawing marijuana use unchanged. See Adult Use, 46

Fla. L. Weekly at S90 (Lawson, J., dissenting). Because our

precedent unequivocally states that it is not “required that a ballot

summary inform voters as to the current state of federal law [nor]

the impact of a proposed state constitutional amendment on federal

statutory law,” Advisory Op. to Att’y Gen. re Use of Marijuana for

Certain Med. Conditions, 132 So. 3d 786, 808 (Fla. 2014), I found

the majority’s decision in Adult Use to be irreconcilable with our

precedent and the laws governing our review of citizen initiative

proposals. See Adult Use, 46 Fla. L. Weekly at S90-92 (Lawson, J.,

dissenting).

Here, by contrast, the majority properly analyzes the ballot

summary to assure that it accurately describes the change in

Florida law that would occur if the amendment passed.

Furthermore, I agree with the majority that summarizing this

proposed amendment as providing “for limited use and growing” of

marijuana could be viewed as misleading because “use” could

reasonably be understood to mean “consumption” and the

amendment places no limitation on the amount of marijuana that a

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user could consume, as explained by the majority. See Majority op.

at 21-22.

However, we must always read the ballot title and summary

together if doing so would affect our legal analysis. See Advisory

Op. to Att’y Gen. re Voluntary Universal Pre–Kindergarten Educ., 824

So. 2d 161, 166 (Fla. 2002) (“[T]he ballot title and summary may

not be read in isolation, but must be read together in determining

whether the ballot information properly informs the voters.”). The

ballot title in this case reads: “Regulate Marijuana in a Manner

Similar to Alcohol to Establish Age, Licensing, and Other

Restrictions.” And the amendment itself details the ways that

marijuana use would be regulated similar to Florida’s current

regulations affecting alcohol use. Therefore, reading the title and

summary together, “limited use” could also be understood as a

reference to the regulations disclosed in the aptly descriptive title.

Read together in this way, the ballot title and summary do not

disguise the measure “as something else,” Askew v. Firestone, 421

So. 2d 151, 156 (Fla. 1982), or “ ‘hide the ball’ as to the

amendment’s true effect,” Armstrong v. Harris, 773 So. 2d 7, 16

(Fla. 2000), and are not “clearly and conclusively defective,”

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Advisory Op. to Att’y Gen. re Right to Treatment & Rehab. for Non-

Violent Drug Offenses, 818 So. 2d 491, 494 (Fla. 2002) (quoting

Floridians Against Casino Takeover v. Let’s Help Florida, 363 So. 2d

337, 339 (Fla. 1978)). See Right to Treatment & Rehab. for Non-

Violent Drug Offenses, 818 So. 2d at 494, 498-99 (“This Court has

no authority to inject itself in the process [by blocking a proposed

amendment from appearing on the ballot], unless the laws

governing the process have been ‘clearly and conclusively’ violated,”

id. at 498-99, thereby rendering the proposal “clearly and

conclusively defective,” id at 494 (quoting Floridians Against Casino

Takeover, 363 So. 2d at 339)). For this reason, I believe that our

constitutional responsibility must be discharged by approving this

measure for placement on the ballot.

LABARGA, J., concurs.

Original Proceeding – Advisory Opinion – Attorney General

Ashley Moody, Attorney General, Amit Agarwal, Solicitor General,

and Jeffrey Paul DeSousa, Chief Deputy Solicitor General,

Tallahassee, Florida,

for Petitioner

Edward M. Wenger and Mohammad O. Jazil of Hopping Green &

Sams, P.A., Tallahassee, Florida,

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for Interested Party, Florida House of Representatives

Jason Gonzalez, Daniel Nordby, Benjamin Gibson, Amber Stoner

Nunnally, and Rachel Procaccini of Shutts & Bowen LLP,

Tallahassee, Florida,

for Interested Parties, Florida Chamber of Commerce, Drug

Free America Foundation, National Drug-Free Workplace

Alliance, and Save Our Society From Drugs

Michael C. Minardi of Minardi Law, Tampa, Florida; and William R.

Wohlsifer of William R. Wohlsifer, PA, Hudson, Florida,

for Interested Party, Sensible Florida, Inc.

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