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By Fred Rocafort, Attorney at Harris Bricken
The Florida Chamber of Commerce has filed a brief with the state Supreme Court, opposing the placement of an adult-use cannabis legalization initiative on the 2024 ballot. This in itself is not particularly noteworthy, though the Chamber’s opposition is curious, given the clear potential that legalization holds for, well, commerce. Nonetheless, the brief offers a prelude of what the Attorney General’s arguments against the initiative might be.
In its brief, the Chamber raises two main arguments for keeping the initiative off the ballot. The first is that the proposed amendment “forces voters to decide, by a single vote, whether Florida should decriminalize and commercialize recreational marijuana,” hence violating Florida’s requirement that constitutional amendment initiatives only address one subject.
This blog has, on more than one occasion, highlighted the differences between decriminalization and legalization, and clearly they are two different concepts. However, while decriminalization can take place without legalization, the inverse is not true. As a result, it is disingenuous to suggest that legalization and decriminalization are different subjects, when, as is the case here, a legalization initiative is being considered. Taken to its logical conclusion, the Florida Chamber’s argument would require that separate initiatives be voted on by Floridians, one first to decriminalize and then a later one to legalize.
The Florida Chamber also warns that “Florida’s voters will face the all-or-nothing choice to decriminalize recreational marijuana and simultaneously commercialize it.” Because, the Chamber argues, decriminalization and legalization have differing levels of public support, “tethering the decriminalization of recreational marijuana to its commercialization is impermissible logrolling.”
Floridians who only want decriminalization will face a bit of a tough choice if the initiative makes it onto the ballot, but such choices are often required of voters. Those who only want decriminalization will need to decide which is the lesser of two evils: legalization or ongoing criminalization. If the choice is unpalatable, proponents of decriminalization-only are free to present their own initiative.
The second objection presented by the Florida Chamber is related to the clarity requirements of Section 101.161(1) of the Florida Statutes. The Chamber argues that the ballot title and summary “fail to disclose that commercialization is a chief purpose” of the amendment. Yet the very first line of the ballot summary explains that the amendment will “allow adults 21 years or older to possess, purchase, or use marijuana products” (emphasis supplied). The use of the term “purchase” makes it as clear as the waters of the Gulf that the proposed amendment would lead to legal commerce involving marijuana.
In support of the argument that the ballot title and summary “hide the ball” as far as commercialization, the Chamber indicates that Floridians are not being explicitly told that they will not be able to grow marijuana for their own use, even if the amendment is approved, which “shackles” the personal use of marijuana to a “commercial recreational marijuana industry.”
To be clear, perhaps Florida law should be changed to allow home growing, but the fact that the proposed amendment does not address home growing does not mean the ballot title and summary are deceptive. Plus, if the initiative did call for home cultivation, cannabis opponents would no doubt say it violates the one-subject requirement!
Possibly cognizant of how much of a stretch its argument is, the Florida Chamber presents an alternative one, suggesting that “to the extent the ballot title and summary hint that the Proposed Amendment has any commercial purpose, they affirmatively mislead voters that approving the Proposed Amendment will mean business as usual in Florida” (as if Floridians would vote to amend their Constitution if they wanted business as usual…).
The ballot summary “tells voters that adults … would be able to purchase marijuana … from ‘other state licensed entities’” (emphasis in original). As the Chamber sees it, this is “falsely suggesting (by using the past tense) that such entities already exist,” when in fact “an entirely new commercial licensing scheme” (emphasis in original) would be authorized. In other words, Floridians should not be allowed to express their democratic will because of a verb tense used on the proposed ballot language.
One can only expect that the AG will put forth more compelling arguments. And if not, one can only hope that the Supreme Court will turn down the invitation to once again deny Floridians the chance to vote on an important issue on the basis of word games.
Re-published with the permission of Harris Bricken and The Canna Law Blog
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