HJR 1407

1
House Joint Resolution
2A joint resolution proposing the creation of Section 28 of
3Article X and the creation of Section 32 of Article XII of
4the State Constitution to allow the medical use of
5cannabis by citizens, allow the Legislature to implement
6these provisions by general law, and provide an effective
7date.
8
9Be It Resolved by the Legislature of the State of Florida:
10
11     That the following creation of Section 28 of Article X and
12the creation of Section 32 of Article XII of the State
13Constitution are agreed to and shall be submitted to the
14electors of this state for approval or rejection at the next
15general election or at an earlier special election specifically
16authorized by law for that purpose:
17
ARTICLE X
18
MISCELLANEOUS
19     SECTION 28.  Medical use of cannabis.-
20     (a)  Except as otherwise provided in subsections (g), (h),
21and (i), a patient or primary caregiver charged with a violation
22of the state's criminal laws related to the patient's medical
23use of cannabis has an affirmative defense to such allegation
24if:
25     (1)  The patient was previously diagnosed by a physician as
26having a debilitating medical condition;
27     (2)  The patient was advised by his or her physician, in
28the context of a bona fide physician-patient relationship, that
29the patient might benefit from the medical use of cannabis in
30connection with a debilitating medical condition; and
31     (3)  The patient and his or her primary caregiver were
32collectively in possession of amounts of cannabis only as
33permitted under this section.
34
35This affirmative defense does not exclude the assertion of any
36other defense by a patient or primary caregiver who is charged
37with a violation of state law related to the patient's medical
38use of cannabis.
39     (b)  It is not a violation of the state's criminal laws for
40a patient or primary caregiver to engage or assist in the
41medical use of cannabis pursuant to this section, except as
42otherwise provided in subsections (g) and (i).
43     (c)  It is not a violation of the state's criminal laws for
44a physician to:
45     (1)  Advise a patient whom the physician has diagnosed as
46having a debilitating medical condition about the risks and
47benefits of the medical use of cannabis or that the patient
48might benefit from the medical use of cannabis, if such advice
49is based on the physician's contemporaneous assessment of the
50patient's medical history and current medical condition and a
51bona fide physician-patient relationship; or
52     (2)  Provide a patient with written documentation, based on
53the physician's contemporaneous assessment of the patient's
54medical history and current medical condition and a bona fide
55physician-patient relationship, stating that the patient has a
56debilitating medical condition and might benefit from the
57medical use of cannabis.
58
59A physician may not be denied any rights or privileges for
60engaging in acts authorized by this subsection.
61     (d)  Notwithstanding subsection (a), subsection (b), or
62subsection (c), a person, including a patient or primary
63caregiver, is not entitled to the protection of this section for
64his or her acquisition, possession, manufacture, production,
65use, sale, distribution, dispensing, or transportation of
66cannabis for any use other than medical use.
67     (e)  A property interest that is possessed, owned, or used
68in connection with the medical use of cannabis or acts
69incidental to such use may not be harmed, neglected, injured, or
70destroyed while in the possession of state or local law
71enforcement officials who seized the property in connection with
72the claimed medical use of cannabis. Such property interest may
73not be forfeited under any provision of state law providing for
74the forfeiture of property other than as a sentence imposed
75after conviction of a criminal offense or entry of a plea of
76guilty to such offense. Cannabis and paraphernalia seized by
77state or local law enforcement officials from a patient or
78primary caregiver in connection with the claimed medical use of
79cannabis shall be returned immediately upon the determination of
80the state attorney or his or her designee that the patient or
81primary caregiver is entitled to the protection contained in
82this section, including, but not limited to, by a decision not
83to prosecute, the dismissal of charges, or acquittal.
84     (f)(1)  A patient may engage in the medical use of cannabis
85with no more cannabis than is medically necessary to address a
86debilitating medical condition. The legislature may, by general
87law, establish a maximum amount of cannabis or cannabis plants,
88possession or use of which, or any lesser amount, is presumed to
89be medically necessary.
90     (2)  For quantities of cannabis in excess of an amount
91legislatively presumed to be medically necessary, a patient or
92his or her primary caregiver may raise as an affirmative defense
93to charges of violation of state law that such greater amounts
94were medically necessary to address the patient's debilitating
95medical condition.
96     (g)  A patient may not:
97     (1)  Engage in the medical use of cannabis in a way that
98endangers the health or well-being of any person; or
99     (2)  Engage in the medical use of cannabis in plain view
100of, or in a place open to, the general public.
101     (h)  Notwithstanding paragraph (a)(1), a patient under
102eighteen years of age may not engage in the medical use of
103cannabis unless:
104     (1)  Two physicians have diagnosed the patient as having a
105debilitating medical condition;
106     (2)  One of the physicians referred to in paragraph (1) has
107explained the possible risks and benefits of medical use of
108cannabis to the patient and each of the patient's parents
109residing in this state;
110     (3)  Each of the patient's parents residing in this state
111consents in writing to permit the patient to engage in the
112medical use of cannabis;
113     (4)  A parent residing in this state consents in writing to
114serve as the patient's primary caregiver;
115     (5)  The patient and primary caregiver collectively possess
116amounts of cannabis no greater than an amount authorized under
117subsection (d); and
118     (6)  The primary caregiver controls the acquisition of such
119cannabis and the dosage and frequency of its use by the patient.
120     (i)  No later than May 30, 2013, the legislature shall
121define such terms and enact such legislation as may be necessary
122for implementation of this section, as well as determine and
123enact criminal penalties for fraudulent representation of a
124medical condition by a patient to a physician or state or local
125law enforcement official for the purpose of avoiding arrest and
126prosecution.
127     (j)(1)  A health insurance provider may not be required to
128be liable for any claim for reimbursement for the medical use of
129cannabis.
130     (2)  This section does not require any employer to
131accommodate the medical use of cannabis in any work place.
132     (3)  A person may not be denied custody of or visitation
133with a minor for acting in accordance with this section and
134legislation implementing this section unless the person's
135behavior creates an unreasonable danger to the minor that can be
136clearly articulated and shown by substantial competent evidence.
137     (4)  A person may not denied any right or privilege and is
138not subject to arrest, prosecution, or penalty in any manner,
139including, but not limited to, a civil penalty or disciplinary
140action by a business, occupational, or professional licensing
141board, for providing a qualifying patient or primary caregiver
142of such a patient with cannabis or cannabis paraphernalia or for
143any other act done in accordance with this section or
144legislation implementing this section.
145
ARTICLE XII
146
SCHEDULE
147     SECTION 32.  Medical use of cannabis.-Section 28 of Article
148X providing for medical use of cannabis and this section shall
149take effect July 1, 2013.
150     BE IT FURTHER RESOLVED that the following statement be
151placed on the ballot:
152
CONSTITUTIONAL AMENDMENT
153
ARTICLE X, SECTION 28
154
ARTICLE XII, SECTION 32
155     MEDICAL USE OF CANNABIS.-Proposing an amendment to the
156State Constitution to provide a patient or primary caregiver
157charged with a violation of the state's criminal laws related to
158the patient's medical use of cannabis, also known as marijuana,
159with a defense to the charge if the patient has a debilitating
160condition and the physician, in the context of a bona fide
161physician-patient relationship, determines that the patient
162might benefit from the medical use of cannabis. The amendment
163provides that a physician may advise a patient with a
164debilitating condition about the medical use of cannabis and
165document the patient's need for this use. The amendment
166specifies that it does not authorize any nonmedical use of
167cannabis. The amendment provides that property seized as a
168result of an arrest in connection with a claimed medical use of
169cannabis may not be harmed unless the charge results in a
170criminal conviction. The amendment provides that a patient may
171engage in the medical use of cannabis with no more cannabis than
172is medically necessary and that the Legislature may establish a
173maximum amount of cannabis or cannabis plants, possession or use
174of which, or any lesser amount, is presumed to be medically
175necessary. The amendment provides that a patient may not engage
176in the medical use of cannabis in a way that endangers the
177health or well-being of any person or in plain view of, or in a
178place open to, the general public. The amendment provides
179additional restrictions on the medical use of cannabis by
180persons under 18 years of age. The amendment requires that, by a
181specified date, the Legislature must define such terms and enact
182such legislation as may be necessary for implementation of the
183amendment and enact criminal penalties for fraudulent
184representation of a medical condition by a patient to a
185physician or state or local law enforcement official for the
186purpose of avoiding arrest and prosecution. The amendment
187provides that a person may not be denied custody of or
188visitation with a minor for acting in accordance with this
189amendment unless the person's behavior creates an unreasonable
190danger to the minor that can be clearly articulated and shown by
191substantial competent evidence. The amendment provides that a
192person may not be denied any right or privilege and is not
193subject to arrest, prosecution, or penalty in any manner,
194including, but not limited to, a civil penalty or disciplinary
195action by a business, occupational, or professional licensing
196board, for providing a qualifying patient or primary caregiver
197of such a patient with cannabis or cannabis paraphernalia or for
198any other act done in accordance with the amendment. The
199amendment is scheduled to take effect July 1, 2013.


CODING: Words stricken are deletions; words underlined are additions.