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November 25, 2015

Editor's Page

The highs and lows of marijuana acceptance

Mark R. Howard | 7/28/2014

Like many Floridians, I am undecided how I will vote on amending the stateÕs constitution to allow some sick people to use marijuana to relieve their suffering. Here are some of the things I will consider.

As of June, we have a state law that makes some types of marijuana available to cancer patients and to those who suffer from chronic seizures. These patients will be able to consume pot thatÕs high in the chemical that relieves pain (cannabidiol, or CBD) but low in the chemical (tetrahydrocannabidiol, or THC) that makes you high. The law specifically prohibits smoking it.

The appropriate marijuana strains will have to be approved by the state Department of Health and then grown and delivered by five regional Òdispensing organizationsÓ (well-established plant nurseries selected and licensed by the state).

The law is fine as far as it goes, but at some level was just a way for our representatives in Tallahassee to find political cover on a tough issue. The law let them appear compassionate by allowing limited medical use of marijuana without appearing to open the door to more widespread consumption or addressing other issues related to criminalization. The law gets its politically correct nickname, ÒCharlotte's Web' Ñ from a Colorado girl whose seizures responded to low-THC marijuana. It more accurately could have been called 'CharlotteÕs WeedÓ or ÒGet By, Not High,' but that might have scuffed up the veneer of compassion.

If it passes, the proposed constitutional Amendment 2 will not invalidate Charlotte's Weed. It expands the list of illnesses for which someone could purchase marijuana Ñ cancer, plus glaucoma, HIV, AIDS, ALS (Lou GehrigÕs disease), ParkinsonÕs, multiple sclerosis, and adds any Òother conditionsÓ for which a doctor says it would help more than hurt. WriterÕs cramp?

New York, when it crafted its medical marijuana law, stuck to a narrowly defined list of illnesses. That state and others avoided the Òother conditionsÓ language that many think is an open door to the widespread availability of marijuana that California and Colorado created with their loosely drawn medical marijuana laws.

Amendment 2 doesnÕt restrict how the marijuana can be consumed, and it doesnÕt limit the amount of THC. It envisions the patient (or a designated caregiver), getting a permission slip from a doctor, then going to a state-licensed shop to buy it.

For at least a few years, the chief effect of passing the amendment will likely be a rush of legal work in both the public and private sector it's not an accident that the biggest financial push behind the amendment comes from an attorney.

Among the legal ramifications to be digested: Regulations governing pot shops, growers, processors and the pot itself. Revisions of DUI statutes. The card system identifying authorized pot users and associated confidentiality issues. Regulations governing who can and canÕt serve as a caregiver. ÒPeople need to realize weÕll be creating a lot of new businesses,Ó says Mark Stein, an attorney with Higer, Lichter & Givner in Miami. "This is an unusual business that is selling a substance that has health and public safety implications, and there have to be rules."

There also are all manner of tax and financial issues, including the fact that many banks refuse to accept deposits or provide other services to owners of pot shops because theyÕre selling drugs that federal law says are still illegal. The IRS, meanwhile, collects taxes from operators of marijuana dispensaries but doesnÕt allow business owners to deduct business expenses.

Another area of concern will be business liability issues and the need for companies to assess their personnel policies. Does an employee have the right to use marijuana, on or off the job, if he has a medical condition that allows him access to it? More than 20 states now have some form of medical marijuana laws, and most state courts have found that employers who maintain drug-free workplaces can fire employees who test positive for marijuana use, even if they have a doctorÕs OK to use it.

All those issues will have to be sorted through if Amendment 2 passes, and a lot of lawyers will keep busy even if pot shop owners never make a dime.

Meanwhile, how to think about our choices on Amendment 2?

There is something superficially reasonable about the idea of allowing people with grievous illnesses to use palliative measures that, on balance, seem benign, particularly when measured against hard-narcotic options. But while marijuana certainly can relieve pain and stress, and however much the amendment's backers may emphasize the Òmedical' adjective, pot isnÕt ÒmedicineÓ by traditional standards tested and approved by the FDA, with specific doses for specific medical conditions and acknowledgement of potential side effects.

My ultimate concern about Amendment 2, however, is whether we're lying to ourselves about what the amendment is about. Is it really about medicine and compassion, or is it a roundabout way of moving the boundaries of permissiveness? Data from 2012 indicate some 7.6 million Americans reported daily or almost daily use of marijuana. Nearly one in three Floridians between ages 18 and 25 reported using marijuana in the previous year.

Given that level of ÒacceptanceÓ Ñ or lawbreaking, depending on your perspective shouldnÕt our laws somehow treat marijuana differently than they now do?

But how eager should we be to enact laws and vote for constitutional amendments that are fundamentally dishonest about their intent? WhatÕs the real measure of rot in our society our choice of intoxicants or our inability to deal with the issues they raise in a straightforward manner?

It will be a tough call at the ballot box this November.

Is Amendment 2 really about compassion and medicine, or is it a roundabout way of having a different discussion?

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