Here’s how Florida’s Cannabis amendment balances freedom and regulation
Voters should know what the amendment would actually do.
And it is simply wrong to say that the amendment creates a right to use marijuana in public.
This fall Florida voters may consider a proposed constitutional amendment that would eliminate state-law criminal penalties on the use of marijuana by adults, pending approval of the proposal by the Florida Supreme Court. But last week Gov. Ron DeSantis expressed concern that the amendment would lead to rampant marijuana smoking in public spaces like city sidewalks and hotels — even near schools. His basic claim was that the text of the amendment would forbid the Florida Legislature from regulating the “time, place, or manner” of marijuana use.
As the attorneys who represented the sponsor of the amendment before the Florida Supreme Court, we understand his apprehension. 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. 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. The governor’s concerns, while no doubt well-intentioned, are unfounded.
The sponsor of the amendment, Smart & Safe Florida, carefully drafted its language to accommodate both the liberty of the individual and the public’s compelling interest in clean, family-friendly streets, parks, beaches and facilities. No part of the amendment creates a right to consume marijuana in public. Although the amendment guarantees the right of adults to use marijuana, it does not specify where they may do so. Instead, the amendment leaves that decision up to the Legislature.
To underscore the point, the amendment states that “nothing in this amendment prohibits the Legislature from enacting laws that are consistent with this amendment.” A law that prohibits marijuana use in public places, while permitting adults to consume it in the privacy of their own homes, would be fully consistent with the amendment’s text and basic purpose.
Smart & Safe Florida, moreover, did not write amendment on a clean slate. The Florida Constitution already grants the Legislature broad powers to regulate public conduct and protect public health. Lawmakers have consistently invoked those powers to regulate the public use of tobacco and alcohol — for example, by banning smoking in workplaces and restricting alcohol sales near schools. Nothing in the amendment displaces that longstanding authority.
In fact, lawmakers can — and should — act now. They could enact a law today banning the smoking of marijuana in public that would go into effect if Florida voters approve the amendment. That step would ensure that voters will have an accurate understanding of what the amendment would do — and what it would not do — as they debate the merits of the proposed amendment over the next seven months.
Of course, Floridians may choose to vote in favor of the status quo. That is their right under the Florida Constitution — to vote on the rules that govern their lives. But voters should know what the amendment would actually do. And it is simply wrong to say that the amendment creates a right to use marijuana in public.
The governor has the opportunity to lead on this issue. He should work with the Legislature to develop a regulatory framework that would take effect in the event that the amendment passes. That would signal respect for the ultimate wisdom of Florida voters. And it could establish a national model for the sensible regulation of marijuana.
