Medical use of marijuana in Florida: Where we've been

From Orange County Commissioner Bryan Nelson

Note: The articles for the next two weeks will consist of an emphasis on the use of medical marijuana in Orange County and throughout the state. Specifically, this article will consist of an overview and recap of legislation passed in attempts to regulate the medical use of marijuana, and next week’s article will focus on the future of such use in both Orange County and our state.

Orange County Commissioner Bryan Nelson

At the time of the 2014 Legislative Session, Florida law had defined cannabis as “all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” This definition of marijuana placed it, along with other sources of tetrahydrocannabinol (THC), on the list of Schedule 1 controlled substances; such substances are substances that have a high potential for abuse and have no currently accepted medical use in the United States, where possession and trafficking of marijuana carry criminal penalties.

Despite the fact that the use, possession, and sale of marijuana are prohibited by state law, Florida courts have found that circumstances can necessitate medical use of marijuana and circumvent the application of criminal penalties. The necessity defense was successfully applied in a marijuana possession case, Jenks v. State, where the defendants, a married couple, were suffering from uncontrollable nausea due to treatment for AIDS and had testimony from their physician that he could find no effective alternative treatment. In applying the defense to the facts, the court ordered that the defendants be acquitted of the charges of cultivating cannabis and possession of drug paraphernalia.

At the legislative branch, the Florida Legislature passed Senate Bill 1030, cited officially as the “Compassionate Medical Cannabis Act of 2014”, and well known as the “Charlotte’s Web” bill during its 2014 Legislative Session. The Act had legalized a low THC and high cannabidiol (CBD) form of cannabis (low-THC cannabis) for medical use by patients suffering from cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms. Additionally, the Act provided that a Florida licensed allopathic or osteopathic physician who had completed the required training and had examined and was treating such a patient could order low-THC cannabis for that patient to treat their condition or alleviate the symptoms; the physician was only permitted to do this if they were in the circumstance that no other satisfactory alternative treatment options existed for the patient. Furthermore, in order for a physician to order low-THC cannabis for a patient, certain conditions must have been met, including but not limited to: The patient being a permanent resident of Florida; and the physician having treated the patient for at least 3 months immediately before the patient’s registration and had determined that the risks of ordering low-THC cannabis were reasonable in light of the potential benefit for the patient. Lastly, the Act created exceptions to existing law to allow qualified patients and their legal representatives to purchase, acquire, and possess low-THC cannabis, up to the amount ordered for that patient’s medical use. This Act also allowed dispensing organizations (DO) to acquire, possess, cultivate, and dispose of excess product in reasonable quantities to produce low-THC cannabis and to possess, process, and dispense low-THC cannabis; these dispensaries and their personnel were not subject to licensure and regulation as applied to pharmacies.

The Act (under Section 381.986) required that the Department of Health (DOH) approve 5 DO’s, one in each of the 5 regions throughout the state: Northwest Florida; Northeast Florida; Central Florida; Southeast Florida; and Southwest Florida. In addition, the law also required the DOH to approve 3 additional DO’s upon the registration of 250,000 active qualified patients in the compassionate use registry.

This Act required the DOH to create a secure, electronic, and online registry for the registration of physicians and patients for the verification of patient orders by DO’s; this registry is accessible by law enforcement. The registry, then called the Compassionate Use Registry, began operating on July 11, 2016, and as of June 1, 2017, there were 15,878 patients registered.

For more information and further reading, residents can access the “Charlotte’s Web” bill through the following link: http://www.flsenate.gov/Session/Bill/2014/1030/BillText/er/HTML.

On November 4, 2016, Amendment 2 was voted into law and established Article X, section 29 of the Florida State Constitution. This section of the constitution became effective on January 3, 2017, and creates exemptions from criminal and civil liability for the following: Qualifying patients using marijuana for medical use in compliance with the amendment; physicians, for issuing physician certifications with reasonable care and in compliance with the amendment; and Medical Marijuana Treatment Centers (MMTCs) for actions or conduct under the amendment and in compliance with DOH rules. Additionally, the constitution defines multiple terms regarding medical use of marijuana. Furthermore, the amendment required the DOH to adopt rules by July 3, 2017; the state purpose of the rules is to ensure the availability and safe use of medical marijuana. The DOH focused on the rulemaking process to implement Article X, section 29 and held several workshops around Florida. Lastly, the amendment does not require health insurance providers to cover the medical use of marijuana. For further information and reading, residents can access the constitutional amendment through the following link: http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A10S29.

During the Special Session this summer, the Florida Legislature passed 2 bills relating to medical use of marijuana: Senate Bill 8-A and Senate Bill 6-A. Senate Bill 8-A implements Article X, section 29, and provides an exemption from the state tax on sales, use, and other transactions for marijuana and delivery devices used for medical purposes; qualifying medical conditions for a patient to be eligible to receive marijuana/delivery device; testing laboratories; and many other provisions. The bill specifies that the following medical conditions qualify medical use of marijuana or a delivery device: Cancer; epilepsy; glaucoma; HIV/AIDs; Post-Traumatic Stress Disorder (PTSD); Amyotrophic lateral sclerosis (ALS); Crohn’s disease; Parkinson’s disease; multiple sclerosis; medical conditions of the same kind or class as the previous mentioned; a terminal condition; and chronic nonmalignant pain. Readers should note that except for terminal conditions, this list is identical to the list of debilitating medical conditions in Article X, section 29 of the Florida Constitution. A qualified physician is limited to issuing not more than three 70-day supplies of marijuana; the DOH must quantify by rule a daily dose amount for each allowable form of marijuana. Physicians may request an exception to the daily dose limit by electronically submitting a form adopted by the DOH in rule to the department. To date, medical marijuana can be administered via vapor, oils, capsules, tinctures, and topical, nasal, and transdermal applications. For further reading and information, residents can access Senate Bill 8-A through the following link: http://www.flsenate.gov/Session/Bill/2017A/8A/BillText/er/HTML.

Senate Bill 6-A expands the public records exemption for the medical marijuana use registry (formerly the compassionate use registry), in regard to patient and caregiver identifying information. For further reading and information, residents can access Senate Bill 6-A through the following link: http://www.flsenate.gov/Session/Bill/2017A/6A/BillText/er/HTML.

Medical use of marijuana still remains illegal at the federal level of government. In addition, patients cannot purchase marijuana prescriptions with Federal chartered Bank credit cards or checks, and prescriptions cannot be shipped through the mail, although, Knox Medical and Trulieve, 2 dispensaries in Orlando, have a delivery service.

In Orange County, the Edgewood moratorium facility has expired. Dispensaries in the following areas have either been banned or are in the process of being banned: Winter Garden; Winter Park; Apopka; Windemere; and Ocoee. As previously mentioned, Orlando has been approved to have two dispensaries: Knox Medical (1901 N. Orange Ave) and Trulieve (4544 N. Orange Blossom Trail); Trulieve is expected to open at a later date. There are also moratoriums currently existing or are in the process of getting approved in Seminole and Osceola counties, as well as dispensaries in Polk and Flagler counties that have been approved or are in the process of getting approved. Dispensaries in Lake County have either been banned or are in the process of being banned.

On November 14th, the Orange County Board of County Commissioners are expected to hold a final public hearing on ordinances relating to dispensaries in unincorporated parts of Orange County.

My hope is that this article will give Orange County residents an overview of the history of medical use of marijuana, and next week’s article will highlight the November 14th County Commission meeting, which can be viewed on the OrangeTV Channel (Spectrum Channel: 488; Comcast Channel: 9; AT&T U-Verse Channel: 99; CenturyLink Prism TV Channels 81 and 1081 HD), online at http://www.orangecountyfl.net/OpenGovernment/OrangeTVVisionTV/OrangeTVLive.aspx, and tuned in on digital antenna over-the-air channel 29.2 after 2:00 pm.