Legal protections an issue with Florida's medical marijuana amendment

People on both sides of Florida’s medical marijuana debate are unhappy about the scope of legal protections Amendment 2 sets up for patients, doctors, caregivers and dispensaries.
People on both sides of Florida’s medical marijuana debate are unhappy about the scope of legal protections Amendment 2 sets up for patients, doctors, caregivers and dispensaries.
Published Oct. 29, 2014

Florida's Amendment 2, which would legalize medical marijuana, contains new protections for patients, doctors, caregivers and dispensaries: Those who follow the rules will not suffer "civil liability or sanctions.''

The amendment's drafters say they wanted to make sure patients who smoke medical marijuana would not lose rights to children in custody fights and doctors would not face lawsuits just for authorizing pot use.

Opponents say these protections are too broad. If voters put Amendment 2 into the Constitution, they say, stoned patients could cause accidents and not face consequences. Doctors could authorize pot use willy-nilly with no fear of penalty.

"Any attempt to regulate a dishonest doctor, caregiver, user or business will be difficult, if not impossible,'' Hernando County Sheriff Al Nienhuis wrote recently in a newspaper column.

The dispute stems from the ambiguous legal status of pot in a medical marijuana system. It will still be illegal under federal law. Some judges, juries and state regulators may still frown on any use, medical or not.

Landlords may want to evict tenants who use pot, even if they have a medical marijuana card. Employers may want to fire a worker when traces of pot show up in a urine test — even if a medical marijuana patient has not smoked for weeks.

These are conflicts that courts eventually will have to sort out if Amendment 2 passes on Tuesday.

Pot docs

Prescription medicine — which is subject to rigorous testing — carries defined standards about dosage, frequency and drug interactions.

Pot is an herb that would be used with far less physician oversight. Under Amendment 2, doctors would take a medical history, conduct an exam and certify that a patient with a debilitating condition could benefit. That's it.

When the Florida Supreme Court put Amendment 2 on the ballot, dissenting Justice Ricky Polston lamented that the civil protections were so broad that "victims of medical malpractice would have no legal recourse.''

Polston gave an example: A doctor could recommend pot for a teething toddler "three times a day for six months or until the teething subsided.''

The court majority, however, said Amendment 2's protections cover only the act of making a recommendation. Doctors still could be sanctioned for "negligence, fraud or misconduct.''

Without protections, the court said, Florida's medical marijuana system could not function.

"The mere act of prescribing marijuana, a controlled substance under Florida law, would result in civil or criminal liability or sanctions, which would prevent the amendment from being implemented," the court wrote.

Aching dads, woozy bankers

The Florida Supreme Court did not directly address protections for patients, which left critics and supporters asking questions.

In 2011, for instance, a Los Angeles judge put a toddler under state supervision because his father used medical marijuana. The man kept his pot locked up and never smoked in front of the child. But he did imbibe four hours before fetching his son at day care.

Had he popped a prescription pain pill, or fixed himself a cocktail in that time frame, it might not have been an issue. But this was pot, so the judge ordered drug counseling, parenting classes and random drug tests.

An appeals court later overruled the judge, saying the state did not show that the man was either impaired or neglectful.

Cases like these illustrate the complexities of mixing medical marijuana with civil law. A few puffs four hours before day care is not child neglect. But what if dad had smoked an hour before? Or in the car en route?

Say Florida passes Amendment 2 and a banker drinks two martinis on New Year's Eve, smokes medical pot, then stumbles into a busy street. A Cadillac swerves to avoid him and kills a pedestrian.

University of Florida law professor Jon Mills said the Supreme Court's logic on doctors would apply to patients as well: mere use would be protected, but not negligence. The stumbling banker would be fair game legally speaking, since it would be negligent to mix pot and alcohol, then walk near a busy street.

Conversely, Tallahassee lawyer Susan Kelsey thinks the staggering banker could argue his pot was medical, so he should not be "subject to civil liability or sanctions.''

"Look at the ballot language,'' Kelsey said. "The plain meaning is the plain meaning.''

Many medical marijuana states lay out specific arenas for civil protection, like custody battles or landlord-tenant disputes.

Florida's Amendment 2 just says "no civil penalties,'' which opens the door to broader interpretation, Kelsey said.

"Sweeping generalizations have sweeping impact,'' she said, "whether you intend it or not.''

Urine tests, livers

Karen O'Keefe, state policy director for the Marijuana Policy Project, faults Amendment 2 for offering too little civil protection.

The Americans With Disabilities Act prohibits businesses from firing employees due to prescription drugs. Not so with pot, a controlled substance.

Traces stay in the body long after the high, so some states forbid firings based solely on urine tests as long as production does not suffer and the employee uses the pot outside of work.

Organ banks often turn away medical marijuana users, even without direct evidence that pot will imperil a transplant. Some medical marijuana states now ban that practice.

If Amendment 2 passes, Florida's Health Department could write protections for these situations into the rules, but there is no guarantee.

By itself, O'Keefe said, Amendment 2 will not "prevent people from being fired, denied organ transplants and it does not offer child custody protections," she said. "It is far weaker than many recent medical marijuana laws.''

Contact Stephen Nohlgren at