Florida justices question state argument against recreational marijuana amendment

If allowed to appear on the ballot, the amendment could make Florida the 25th state to allow recreational pot use.
Florida's Supreme Court on Wednesday heard arguments over a proposed amendment that would allow for recreational marijuana use in the state.
Florida's Supreme Court on Wednesday heard arguments over a proposed amendment that would allow for recreational marijuana use in the state. [ DAVID PETKIEWICZ CLEVELAND.COM | ]
Published Nov. 8|Updated Nov. 10

Florida Supreme Court justices on Wednesday cast doubt on the state’s attempt to block a proposed amendment that would allow recreational marijuana use.

During a hearing Wednesday, Justice Charles Canady said he was “baffled” by an argument presented by the Attorney General’s Office, which is seeking to disqualify the amendment that would allow marijuana use for people 21 and older. Proponents are hoping to put the amendment to voters in 2024.

Florida Attorney General Ashley Moody’s office argued the ballot summary would mislead voters because it says that marijuana would be legal in Florida, when it is illegal federally.

The amendment would remove criminal and civil penalties for possession, purchase and nonmedical use of marijuana in Florida. Jeffrey DeSousa, who represented the Attorney General’s Office, said that because the amendment’s ballot summary says it “allows” recreational marijuana use, it creates confusion for voters about federal law.

The ballot summary says the amendment “does not change, or immunize violations of, federal law,” which Justice John Couriel pointed to during the state’s arguments.

“C’mon,” Couriel said. “It also says ‘applies to Florida law.’ We can’t not read the context of the whole statement.”

Justice Meredith Sasso asked John Bash, an attorney for amendment sponsor Smart & Safe Florida, how the court could expect voters to understand that the amendment does not change federal law, when the summary opens by saying it “allows” marijuana use and then only later in the summary specifies the federal regulation.

Bash said courts often rely on people to serve on juries and read through complicated instructions, and should also expect that voters enter the voting booth knowing they could be changing law and are conscientious about reading something fully.

The state also argued that because the ballot summary says medical marijuana treatment centers and “other state licensed entities” could distribute recreational marijuana, voters might assume they are authorizing the creation of more licenses.

“The ballot summary is playing on a desire of voters to see greater competition in this marketplace,” DeSousa said.

Chief Justice Carlos Muñiz asked DeSousa what kind of voter would want recreational marijuana but would vote against it because they disagreed with the structure of the marketplace. The state argued that the language needs to be clear regardless.

Bash said the ballot summary is clear and was drafted with the Florida Supreme Court’s own road map from prior rulings about constitutional amendments dealing with marijuana. (In a prior brief, Moody argued the court “erred” when it approved the wording of those prior amendments.)

“This court has said many times that it’s reluctant to strike language from the ballot,” Bash said. “If there was ever a case not to do it, it’s the one where the ballot sponsor looked at this court’s precedents, tried to follow them scrupulously, and even adopted the language that this court said is appropriate.”

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Florida already allowed medical marijuana use after voters in 2016 overwhelmingly approved an amendment with about 71% of the vote.

If the Florida Supreme Court allows the wording of the recreational marijuana amendment to stand, it will appear on the 2024 ballot and need 60% of Floridians to approve it to become law.

More than 1 million Florida voters have signed petitions supporting the amendment, which has been largely financially backed by the marijuana dispensary Trulieve. Trulieve has spent about $40 million on the effort.

The state Supreme Court hearing came a day after voters in Ohio approved a recreational marijuana amendment, making that state the 24th to legalize personal marijuana use.