As voters decide whether to legalize recreational marijuana in Florida this November, Gov. Ron DeSantis and opponents of Amendment 3 are focusing on a specific concern: the smell.
“It’s basically a license to have it anywhere you want,” DeSantis said at a press conference in April. “This state will start to smell like marijuana, in our cities and towns. It will reduce the quality of life.”
It’s an appeal to Floridians’ senses. Pushed not only by the governor, but also the Florida Chamber of Commerce and the official campaign against the amendment — Vote No on 3 — the warning is predicated on two claims. First, that the language of the amendment prevents laws that restrict outdoor use, and that states with recreational cannabis have already been overwhelmed.
In commercials produced by the Vote No on 3 campaign, speakers claiming to be from Colorado and California — states with legal markets — say they’re fed up.
“I’m at the park with my kids, and they’re like, ‘Mommy, what’s that smell?’” a woman says into the camera. “California has gone to s–t.”
Only, proponents of Amendment 3 say it will be easy to regulate in Florida.
In March, two lawyers that represented the amendment’s sponsors before the Florida Supreme Court — John Bash and Glenn Burhans — wrote in an op-ed in the Tampa Bay Times that “the governor’s concerns, while no doubt well-intentioned, are unfounded.”
“No one should have to endure the odor of marijuana while commuting to work, walking the dog or relaxing at the beach. But the governor is mistaken about what the amendment does,” they wrote. “If voters approve the amendment, the Legislature will have full authority to regulate or ban the use of marijuana in public places — that it already exercises for tobacco and alcohol.”
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FLORIDA LAW
To understand the debate — and decide what to believe — it’s important to understand how marijuana is currently regulated in Florida.
Marijuana remains illegal under federal law, and state law treats recreational use as a crime, though some local governments, including Miami-Dade County, have voted to give police the option to issue fines instead of arrests. .
Florida voters amended the Constitution in 2016 to legalize marijuana for medicinal purposes.. Now, 25 licensed Medical Marijuana Treatment Centers operate over 600 dispensaries across the state, according to the Office of Medical Marijuana Use. As of Oct. 11, the office documented over 880,000 qualified Florida patients.
Currently, it is illegal to use medical marijuana in public places, except for low level THC, according to the Office of Medical Marijuana Use. On Miami Beach, smoking marijuana in public could lead to 60 days in jail or a $500 fine, or both.
Amendment 3, which was introduced by the non-profit organization Smart and Safe Florida, would effectively expand that medical marijuana market to recreational use. It would legalize recreational marijuana in the state and allow medical marijuana treatment centers and other state licensed entities to sell it for personal use to adults over the age of 21.
The Vote No on 3 campaign says public use will become more prevalent if Amendment 3 passes.
“We already smell our medical marijuana … and most Floridians don’t want to. They don’t want to be inundated with the malodorous smell of marijuana,” said Jessica Spencer, the director of advocacy for Vote No on 3. “We would see, if this passed, a huge boom of marijuana use.”
But their position that public use will become overwhelming is based on more than a hunch, they say. Spencer points to a line in the constitutional amendment that legalized medicinal cannabis that says accommodations are not required in public spaces for medical marijuana, saying it needed to be extended to all marijuana to allow for a ban.
“Even if we could do a ban, which we can’t because it wouldn’t be consistent with the language, there’s still going to be the smell of marijuana,” she said.
Republican Sen. Joe Gruters, said that’s not true, and the smell is the “easiest issue to address.”
“The Constitution is very clear, we have broad police powers that give us the ability to regulate the safety, health and welfare of the constituents,” he said. “To me it’s a non-issue.”
Dissolving the smoke
On Wednesday, Gruters and Spencer faced off in a debate on CBS Miami about the amendment.
Spencer said the amendment was about “corporate greed;” Gruters said it was about “safety” in marijuana use. Then they turned to what – if anything – can be done to regulate it.
“We will have regulation,” Gruters said during the debate. “And the great thing about living in Florida, we’re going to do this the Florida way. We’re going to be able to put the guardrails up.”
If Amendment 3 passes in November, Gruters says he plans to introduce a bill banning marijuana use in public areas — a type of legislation that he is familiar with, after he sponsored amendments to the Florida Clean Air Act in 2022.
A line added in the November amendment reads that “nothing in this amendment prohibits the Legislature from enacting laws that are consistent with this amendment.” The group behind the measure – Smart and Safe Florida – and Gruters said that this allows for bills on use. Smart and Safe Florida said that a ban in public spaces would be consistent with the measure.
“This language clearly gives the legislature the full authority to enact legislation on time, place, and manner, as well as additional regulations as it sees fit,” Morgan Hill, a spokesperson for the group, said in a statement.
Timothy E. McLendon, a professor at the University of Florida Levin School of Law, isn’t so sure.
He said that the line allowing the Legislature to enact laws would “arguably give some scope for legislation that could define place and manner … of smoking.”
However, he pointed to a line in the amendment that reads “the non-medical personal use of marijuana” would not be “subject to any criminal or civil liability or sanctions under Florida Law,” which he said could argue otherwise.
“That’s the tension here, which one controls in some of these settings, and I don’t think I can give you an absolute answer,” he said.
California, New York and Colorado
If Florida voters legalize recreational marijuana, they would be deciding to join the other half of the country that already makes it available to consumers with few conditions.
According to the U.S. Center for Disease Control and Prevention, at least 24 states, the District of Columbia, Guam, and the Commonwealth of the Northern Mariana Islands have legalized recreational marijuana. It is still illegal regardless of the state to smoke on federal lands, including national parks and forests.
Vote No on 3, which is part of the political committee Keep Florida Clean and chaired by DeSantis’ chief of staff, James Uthmeier, argues that the experiences of other states should be a red flag.
Various states have implemented restrictions to curb its use in public places — but wafts of weed bothering tennis players at the 2023 U.S. Open in New York brought the issue to public attention.
“Oh my God, it’s everywhere,” said Alexander Zverev, a German tennis player. “The whole court smells like weed.”
New York, like California and Colorado — the three states regularly used as examples by opponents to the measure – all have laws regulating the use of marijuana in public spaces.
In California it’s illegal to smoke cannabis anywhere that it’s illegal to smoke tobacco – including restaurants and bars. New York also restricts the smoking of marijuana in public spaces, and bans smoking in places where tobacco is prohibited, as well as cars, restaurants, parks, event spaces or any business.
In Colorado, the “open and public consumption” of marijuana is prohibited.
Heather Draper, the communications manager of Colorado’s Marijuana Enforcement Division, said prohibitions extend to indoor and outdoor spaces, including: sidewalks, parks and amusement parks, ski resorts, concert venues, businesses, restaurants, cafes, or bars, and common areas of apartment buildings or condominiums.
“Using marijuana in any way — smoking, eating or vaping — isn’t allowed in public places,” Draper said.
The Florida Chamber of Commerce, which opposes Amendment 3, says the state will smell like marijuana, anyway.
“Florida stands out as a beacon of both freedom and quality of life,” reads an argument on its website. “Amendment 3 puts all of that at risk and will make Florida more like California, New York and Colorado, where recreational marijuana, and its smell, is everywhere.”
H/T: www.miamiherald.com
