Florida Legislation Up In Smoke

Gary J Stein

The 2019 legislative session started their year with a singular, stand-out purpose in mind when it came to Cannabis – find a legislative solution to remove the “Smoking Ban” that was imposed on the medical cannabis community in the implementation bill for Amendment  2- SB8a.

In 2016, voters in Florida passed the amendment by over 71.3% – the largest margin of any medical cannabis ballot initiative in the country. There was already a low-THC program, created from 2014’s SB1030 – the Compassionate Care Act, which was expanded by a “Right to Try” Act the following year, but there was no high-THC medical cannabis program until Amendment 2 passed, and the legislature felt forced to create an implementation bill, rather than let the DOH write the rules with their constitutional rule-making authority. The bill was written to be self-implementing, but they wrote in anyway, in highly restrictive language.

One of the largest, glaring problems was a ban on smoking cannabis, along with a ban on home-grow and a licensing structure, based on a competitive application system. 

All three issues were heard in the 2nd District Court in Leon county, and the state lost all three times, with the judge ruling that the prohibitions and restrictions in SB8a were unconstitutional, because they did not follow the basis of the amendment – create access to patients with debilitating diseases.

In each case, after the judge ruled and the State lost, the governor ordered an appeal, sending the cases to the 1st District Court of Appeals. Despite a request for a “Stay”, which would have allowed smoking, home grow and licensure by registration, the stays, approved by the 2nd district judges, Gievers and Dodson, were denied by the 1st DCA.

But after the elections of 2018 Florida had a new governor, Ron DeSantis, the word came out of the Executive branch that things were going to change, and the negativity against the Medical cannabis program was changing course. The governor claimed he was going to pull the appeals.

Or least that was what was originally proposed.

At a press conference in Winter Haven, an area close to the home of John Morgan, the millionaire lawyer that financed Amendment 2, the governor stated that he was going to use the pulling of the appeal as leverage against the legislature, to force them to come to a solution by March 15, only 10 days into the new session, scheduled to start on March 5.

As Florida patients and entrepreneurs held their collective breath, legislators, working with advocates and lobbyists, got to work on a plethora of bills to correct the problems with the 2017 law. But the prime directive, the highest priority directive, was to work on the bills to remove the smoking ban, as the new governor demanded. 

The first bill to be filed, SB372, came from democratic senator Gary Farmer of Broward county, utilizing the bill he had created for the previous session. It added protections for caregivers, and left the type and amount of flower open, to be determined by the doctor and patient.

But the republican-heavy senate, led by Sen. Galvano, had already given the go-ahead to a very similar bill spearheaded by Sen., Jeff Brandes. In 2017, he had written an implementation bill that was far less restrictive and open to licensing horizontally integrated Medical Marijuana Treatment Centers (MMTC) instead of the vertical-only model currently in use that required seed-to sale and delivery. But then, his bill was ignored by the senate in favor for a bill lead by Sen. Rob Bradley and combining 5 other senate bills. But for 2019, it would be Sen. Brandes who would be the standard-bearer for the medical cannabis bill, almost as a matter of redemption, since much of what he wrote in 2017 was in line with what the courts deemed in line with the constitutional amendment. 

That didn’t stop the Health Policy’s committee chair from attempting to put a restrictive amendment on his bill, demanding two physicians for every recommendation for smokable cannabis, a lecture on the hazards of smoking that made no discernment between cannabis and tobacco and requirement that a recommendation state that smoking was the only method that could be used, blocking a patient from access to edibles, vaping, tinctures, etc. 

The amendment passed, and the bill almost failed. A request for reconsideration was made, a second vote was cast, and the bill passed with the caveat from Brandes that he did not like the amended bill and vote it down if it stayed that way. One committee later, the amended language was gone.

Meanwhile, the House bill had its first day in hearing as a far more conservative and restrictive bill than the Senate. It had a 10-person panel that each recommendation must pass, required the submission of documented research each doctor had to submit for each patient and a mandate that all smokables be in the form of prerolls with a filter. 

By the end of the meeting, the 10-person panel was gone, and the filter went away by the second hearing. But, as their last committee stops ended, the house and senate versions were still far apart.

For example, the senate version only allowed children under the age of 18 to be deemed to have a terminal status, and the House bill banned smoking altogether, regardless of whether a doctor felt the medicine was needed or not.

These were obvious moves to stay closer to a ban than allowing smokable cannabis. Both houses were still treating the plant as an insidious danger. Speaker Jose Olivo was still talking about how bad smokable cannabis was, and future speaker Chris Spowls brought Alex Berenson, a writer of spy novels, to speak to legislators about his new book, “Tell Your Children – The Truth about Marijuana, Mental illness and Violence”.

If the title sounds familiar, “Tell Your Children” was the original title of the movie, “Reefer Madness”, and this book followed in its footsteps. And not in opposition, either.

There was obviously much more work and education of legislators to be done.

The buzz from the lobbyists, based on speaking with legislators, that the smoking bills would be the only bills to pass this session, and that was only because of the Governors mandate, which he had not repeated on any other issue, despite a promise to back down on all the appeals and lawsuits plaguing the program. As the session neared, the only appeal or case touched was the smoking case, and another appeal had been filed after the State lost a case regarding a cap on the number of dispensaries, won again in the 2nd District court.

But that did not stop several bills to be filed, and in front was a bill by Sen. Brandes to open the market and remove mandated vertically integrated MMTCs. SB1322 and SB 1324 not only allowed horizontal integration, bur also removed the cap, vastly reduced the fees to apply to register a license and set up a system individual licenses for cultivation, processing, retail sales and transportation.

Other bills pending filing was tried as amendments to the Brandes smoking bill. The attempted amendments, which attacked the issues of Patient protection, employee protection and offering free medical cards for veterans, were offered and withdrawn after opposition was raised, especially to employee protection, from Sen. Bradley.  The bills, which had already been written and passed through Bill Drafting, would have to be filed as bills or as amendments to other legislation.

Seventeen bills, as of the time of this writing, just two weeks before the deadline to file new bills, had been posted, but only the smoking bills had actually been put on the agenda of there referred committees, and some had not even been given committees or received a house or senate companion.

Brandes SB1322 and 1324, if the rumors were true, could possibly languish for the rest of the session without a hearing.

But they would be in great company. SB154/156 and their house companions HB461 and 463, which opened a structure for Retail facilities separate from cultivation, processing and transportation were the first bills filed, but were not set for any of their committees to be heard. They had some interesting clauses, including the prevention of doctors or caregivers from having any financial interest in a retail facility. Restricting doctors from owning a retail facility was in line with the conflict of interest laws that prevent doctors from owning labs where the prescribe tests to be done. The caregiver clause, especially considering the current statute that prevented caregivers from getting any compensation, didn’t make sense. 

HB333 and SB 1058, identical Hemp program bills with a myriad of conditions, were still waiting, as was Sen. Bradley’s much more direct hemp program bill, SB1020. Bradley’s bill essentially handed the program to the Dept. of Agriculture, currently lead by new Comm of Agriculture Nikki Fried, who ran on the issue of creating and running a vibrant cannabis program that included hemp. 

Bradley’s bill would let the DOA write the rules for the Hemp program, along the line of the new federal Farm bill, HR2, which descheduled hemp and hemp products. The DEA was still holding any CBD product from hemp as potentially still illegal, and a grey area was surrounding the issue. Meanwhile, CBD stores carrying hemp flower were being raided first and tested later, and law enforcement was cracking down across the state through the fog of uncertainty in that issue.

HB557 (sponsored by Reps. Massullo and Silver) offered blanket tourist reciprocity for visitors from a legal state with medical cards issued from that state, and Sen. Albritton filed SB1328, which asked for more documentation, including a doctor’s certification and a recommendation entered into the state registry.

SB384, brought forth by Sen. Monfort, who used to be in charge of all school superintendents, was a School use bill to allow a method for kids in school to have access to their doctor-recommended cannabis meds, and was a re-issue from the previous year. This would mean the difference of whether a child with seizure disorders and other debilitating conditions could continue to attend a public or private school, rather that being home-schooled to have access to their medicine. It didn’t have a house companion at this time.

SB1116, written and sponsored by Sen. Annette Taddeo, offered Banking Solutions for MMTC’s, in part as a safety issue for a business that deals in millions of dollars, but restricted to a cash-only basis that has plagued the industry. The illegal federal status of cannabis had created this banking issue, and previous solutions had always been thwarted by lack of a federal master account or compliance issues with the bank. One bank in Florida, Green Bank, had previously offered a solution, but a buyout and a nw owner that did not want to deal with any cannabis customers, ended that opportunity, and this was a way for a state-based bank to offer the MMTC, and any future cannabis business to have real banking options. It was still awaiting a house companion as well as any referred committees.

Other bills mentioned cannabis as a point of restriction, such as a Telehealth bill by Rep. Ausley, which prevented cannabis doctors from utilizing that system, even for non-ambulatory patients.

But high hopes were also raised by a Senate Joint Resolution, sponsored by Sen. Bracy, which asked for a new constitutional amendment, for the ballot in 2020, which would allow Responsible Adult Use (also known as “recreational” by a term infused into the country by prohibitionists that needed a more negative term)

And so, we moved into an uncertain session, with mandated smoking bills ready to battle or merge, and a host of other bills awaiting a first breath of activity.

And the patients of Florida, were still left holding their collective breath. Waiting to exhale, with a puff of smoke or vapor, if needed.HL