What’s Next for Marijuana Legalization in Florida

The Florida Supreme Court held last month that a citizens’ initiative that would legalize recreational marijuana use for people age 21 and older could appear on this fall’s ballot.

Gov. Ron DeSantis and Republican legislators have voiced strong opposition to the initiative. “[There are] no time, place, and manner restrictions,” DeSantis said. “This state will start to smell like marijuana in our cities and towns.”

But the court ruled that the proposed initiative satisfies constitutional and statutory rules requiring that an initiative use clear language and address only one subject, the Florida Division of Elections has verified that the petition has the signatures needed to qualify for the ballot, and the Florida Financial Impact Estimating Conference has issued the required opinion informing voters of the financial impact of the proposal. So if the initiative is approved by 60 percent of voters this fall, adults across the state will be able to legally use marijuana, right?

It might not be so simple. There are a few ways lawmakers can undermine or chip away at the right to marijuana, even one enshrined in the state constitution.

 If voters approve the initiative this fall, it would be effective six months after the election. This lag is designed to allow state agencies and the legislature to prepare for implementation of the new right. But it also opens the door for lawmakers who oppose legalized marijuana to limit it through “implementation sabotage.”

The Florida government has repeatedly engaged in tactics to undermine initiatives after voter ratification. When voters approved a medical marijuana initiative in 2016, for example, the legislature passed a law that prohibited “smoking” marijuana for medical purposes on the theory that the initiative did not require legalization of all methods of use. The legislation also placed significant hurdles in the way of doctors seeking to proscribe marijuana, including that they take a two-hour, $500 course before prescribing marijuana.

This year’s marijuana initiative is dependent on state government compliance because it allows for distribution and sale by state-licensed dispensaries only, not for homegrown marijuana. As such, it is particularly vulnerable to implementation sabotage. Indeed, the legislature has already introduced a law that would cap concentrations of the psychoactive compound in marijuana. Reducing the chemical potency of legal marijuana could severely restrict the scope of the initiative.

Lawmakers could also undercut the initiative by failing to adopt rules and laws necessary to license new dispensaries. The initiative envisions that existing medical marijuana dispensaries could sell to recreational customers and that the state can — but is not required to — license new dispensaries solely for recreational distribution. This dependance on state licensing could allow the government to bottleneck the recreational marijuana market. The initiative also envisions that existing medical marijuana dispensaries will begin distributing to adults over 21 immediately upon the amendment’s effective date, but the state could impose new and unique age verification requirements, for example, or mandatory waiting periods that frustrate distribution.

Lastly, DeSantis’s comments on the need for “time, place, and manner” restrictions may preview legislation that limits the spaces and opportunities for recreational marijuana use and imposes high criminal penalties for using legal marijuana in a prohibited location or context.

While there are certainly legitimate public health and safety justifications for sound marijuana regulation beyond what’s in the initiative, a hostile state government could go far past what’s necessary to protect the public in order to undermine the initiative’s scope.

There’s reason to believe, however, that the state might soften its stance on marijuana if the initiative passes. The financial impact estimate for the initiative projected it would “generate at least $195.6 million annually in state and local sales tax revenues once the retail market is fully operational.” An economic boon from legalized marijuana could shift private and public capital interests, and with them, political attitudes. Indeed, economic forces may already be at play. Recent reporting has highlighted the interests of existing Florida medical marijuana companies in retaining the present system of vertical integration (meaning that the same private firms control growing, processing, and distribution) while expanding the market to recreational use. Those firms have contributed generously to political campaigns in Florida and there’s speculation that some officials are changing their positions on recreational marijuana for economic reasons.

Much depends on voters this fall. But if past is prologue, Florida lawmakers are unlikely to acquiesce to the broadest possible version of the right to recreational marijuana.

Jonathan L. Marshfield is an associate professor at the University of Florida Levin College of Law, where he teaches and writes in the areas of local government law, state constitutional law, and constitutional change.