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Property rights, First Amendment issues clash in medical marijuana petition drives

Medical marijuana advocate Paul Ecklund, 58, waits to collect signatures in December at the Pasco County Courthouse.
Medical marijuana advocate Paul Ecklund, 58, waits to collect signatures in December at the Pasco County Courthouse.
Published Jan. 10, 2014

In the final push to get medical marijuana on the November ballot in Florida, many petition gatherers say they have been harassed by authorities and booted from public places — even government offices — across Tampa Bay.

Petitioner Paul Ecklund can be found any given weekday outside of the west Pasco courthouse in New Port Richey, holding clipboards and petition forms. Over Christmas break he ventured to Tarpon Springs during the Christmas parade, and said he was asked by a city police officer if he had a permit to collect petitions. At the New Port Richey holiday parade, city workers told him the sidewalk where he was standing was private property and he couldn't petition.

On Dec. 23, Ecklund, 58, said he was asked to leave the Holiday post office, and given the same reason.

"We get reports of it every single day," said Ben Pollara, campaign director for United for Care, the group working to get the amendment on the ballot. "Florida is one of the states that doesn't have strong 'right to access' laws. It's unfortunate, but there's not much we can do about it. We tell them to say 'thank you' and leave. It's a numbers game."

Orlando lawyer John Morgan has pumped millions of dollars into the medical marijuana campaign, especially in the past few months, and Pollara said the group has amassed enough of the required 683,149 signatures to force the vote. County elections officials are still working to verify them.

Signature collector and retired mechanical engineer John Chase, 79, of Palm Harbor recently went to the Pinellas driver's license office on S Pinellas Avenue in Tarpon Springs. He taped a sign to the metal railing in front of the building to solicit. An employee came out, he said, and told him to leave, again saying the area was private property. He also tried the Veterans Affairs building on Little Road, with similar results.

Chase said he can't collect the signatures he needs if he can't go to where people congregate, and he considers the areas he's going to public, so he shouldn't face restrictions.

"I feel my rights are being impinged upon," he said.

John Taylor, a 69-year-old Vietnam veteran, had a similar experience at the VA building on Bay Pines Boulevard in St. Petersburg.

"I was down there for an appointment and started collecting signatures," he said. "I was very, very busy. So many people wanted to sign, I had seven forms out at a time."

It took about 15 minutes, he said, for authorities to ask him to leave. He pushed back — saying it was his right to collect. He said the officers were courteous but firm, and told him to talk to the administration. He was told there, again, that he couldn't collect signatures.

So what does the law say?

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Public sidewalks and parks are good for First Amendment activities such as protests and petition gathering, says Gainesville First Amendment attorney Gary Edinger.

As a person moves away from a public street toward a building, the law tends to favor the property owner more than the citizen. When someone is in the sidewalk or area going into or out of a public building or in front of a door or hallway, property owners' interests increase and the constitutional rights of a citizen decrease. Edinger said a government would be "hard pressed" to ask a citizen to leave the steps of a courthouse, but that's not always the case with all government buildings. Public property owners could have security concerns depending on the nature of the property itself. That's why courthouse steps and libraries work better than military bases and police stations.

What about quasi-public places such as shopping centers or other privately owned buildings?

Florida law gives little, if any, priority to citizens' First Amendment rights when it comes to private property owners, Edinger said. Even a government office located in a shopping mall is subject to the whims of the property owner, who can tell anyone to leave. The U.S. Constitution says states can provide broader rights as long as those rights don't infringe on federal ones. So, in California, people are allowed to petition at a grocery store; in Florida, they are not.

In Pasco County in 2003, the County Commission passed a resolution authorizing former Tax Collector Mike Olson to designate First Amendment activity to a section in the parking lot, away from the building. The matter went to court and was upheld, and according to current Tax Collector Mike Fasano, it's still in place. However, Fasano doesn't enforce the measure, and signature collectors regularly petition in front of Pasco tax collector's offices.

"Mainly because there's no place to go, and it will be very dangerous for them to be in the parking lot," he said. "We've asked them to be on the side of the building."

Talbot "Sandy" D'Alemberte, former president of the American Bar Association and a former politician, said he thinks laws should be less restrictive in privately owned commercial buildings. The Constitution, he said, was written before shopping malls became meeting places the way a town square used to be.

"There can be limits," he added. "But as long as there's no obstruction of traffic, I favor a rule that favors access."