Is medical marijuana legal in Florida? Yes, but why do weed arrests still happen?

• The state’s voters decisively approved a constitutional amendment in 2016 legalizing the medical use of marijuana, and the following year the Florida Legislature passed laws creating the framework for a program within the Florida Department of Health.
• The state’s Office of Medical Marijuana Use recognizes cannabis-based products as a treatment option for symptoms of such diseases and conditions as cancer, epilepsy, HIV/AIDS, post-traumatic stress disorder, Crohn’s disease and Parkinson’s disease, along with “comparable” medical conditions, chronic pain and terminal illness.
• In Florida, possessing 20 grams (about 0.7 ounces) or less of marijuana is a first-degree misdemeanor commonly called simple possession.
• All but six states have legalized the medical use of cannabis products in some form. Of the rest, 18 states allow adults to possess marijuana without medical authorization, and 10 others have removed criminal penalties, making possession instead a civil infraction.

As Evan Turner filled out a job application at a convenience store, he came across the question: “Have you ever been arrested?”

“I say, ‘Yep,’” Turner said. “And they're like, ‘No, thank you.’” 

Turner, a Gulf Breeze resident, was a college student at the time and had recently been arrested for possession of marijuana after a traffic stop during which a police officer found that one of his passengers had a small amount of the drug.

Prosecutors allowed Turner to enter a diversion program, and he avoided a criminal conviction. But his arrest was still a blight on his record that he said hindered him in later job applications. He has since had other arrests for possession.

“Well, the arrests will always be there,” said Turner, now 34. “Yeah, they say it's not on your record, but technically it is. And obviously, any court can bring it up and all that stuff. So, it's on your record, police can see it, FDLE (the Florida Department of Law Enforcement) sees it. It’s just not on your record as an actual conviction.”

Related: Black farmers left out of Florida's medical marijuana business

By the way:Researchers studying how much medical marijuana helps reduce anxiety

Turner’s first arrest for marijuana possession occurred long before Floridians voted to allow the possession and consumption of marijuana as medicine in 2016. But he said his experience illustrates a fact that persists five years after the state created its medical marijuana program: An arrest for possessing a small amount of marijuana can still have lingering negative consequences.

Michael Minardi, a Tampa defense lawyer specializing in cases of marijuana possession, said Florida’s official policies on the drug are inherently contradictory.

“The biggest thing that's absurd about the issue is that Florida still considers it a Schedule 1 substance, which states it has no medicinal value, it’s unsafe under doctor supervision and it's highly addictive, which is kind of ridiculous when we have over 713,000 medical cannabis patients,” Minardi said. “And that's really what causes those enhanced penalties (for possession). It's scheduled higher than heroin and barbiturates and cocaine.”

Medical marijuana in Florida

Indeed, the medical marijuana industry has thrived in Florida over the past five years. The state’s voters decisively approved a constitutional amendment in 2016 legalizing the medical use of marijuana, and the following year the Florida Legislature passed laws creating the framework for a program within the Florida Department of Health.

The state’s Office of Medical Marijuana Use recognizes cannabis-based products as a treatment option for symptoms of such diseases and conditions as cancer, epilepsy, HIV/AIDS, post-traumatic stress disorder, Crohn’s disease and Parkinson’s disease, along with “comparable” medical conditions, chronic pain and terminal illness.

A Florida resident must get a recommendation from a doctor who has qualified by taking a two-hour course and examination overseen by medical associations. The OMMU lists more than 2,100 qualified physicians.

After getting a doctor’s recommendation, a patient may apply to the OMMU for a medical identification card. The card must be presented at a state-licensed medical marijuana dispensary to buy any products. The state now has more than 430 licensed cannabis dispensaries.

Dispensaries sell an array of cannabis-derived products. A qualified patient can select from concentrated oils, tinctures, vaping supplies, edibles (such as cookies and chocolates) and even dried flowers to be smoked. Singer Jimmy Buffett, one of Florida’s most-recognizable residents, has his own line of Coral Reefer brand cannabis products sold in Surterra’s dispensaries.

The medical marijuana industry generated a reported $1.3 billion in 2020 and continues to expand.

Yet, marijuana — the kind not cultivated in licensed operations and sold in stylish dispensaries — remains illegal to grow, possess or consume. The Florida Department of Law Enforcement recorded more than 17,000 arrests for marijuana possession in 2020, the last year for which full numbers are available.

Full legalization? Not soon 

All but six states have legalized the medical use of cannabis products in some form. Of the rest, 18 states allow adults to possess marijuana without medical authorization, and 10 others have removed criminal penalties, making possession instead a civil infraction.

Florida does not seem likely to join either of those last two groups in the near future. Advocates sought to place a constitutional amendment on the ballot this year to make recreational use of marijuana legal, but a judge struck down the proposed measure as not meeting state guidelines for clear language.

Florida legislators have routinely introduced bills in recent sessions that would allow adults to possess and consume limited amounts of marijuana. For example, Sen. Gary Farmer, D-Fort Lauderdale, and Sen. Jeff Brandes, R-St. Petersburg, sponsored such bills in this year’s session, but neither advanced out of the Senate Health Policy Committee.

Florida Gov. Ron DeSantis has avoided an unequivocal statement on the matter but has signaled his wariness about full legalization of marijuana. In a January news conference, DeSantis talked about visiting states that allow cannabis to be smoked in public. (Florida law bans smoking or vaping legally obtained marijuana products in public.)

“What I don’t like about it is if you go to some of these places that have done it, the stench when you’re out there, I mean, it smells so putrid,” DeSantis said. “I could not believe the pungent odor that you would see in some of these places. I don’t want to see that here. I want people to be able to breathe freely.”

DeSantis’ office did not respond to an email asking if the governor opposes decriminalizing marijuana possession or if he would veto a legalization bill if the Legislature were to pass one.

Karen Seeb Goldstein, vice chair of Regulate Florida, said the organization is preparing to place a constitutional amendment before voters for the 2024 election. The political group advocates for cannabis to be legal and regulated much like alcoholic beverages are.

Regulate Florida, which led the unsuccessful push for a ballot measure this year, is already gathering signatures on petitions for an initiative two years from now.

“And we believe that we have an excellent chance of passing it,” said Goldstein, who is also executive director of NORML of Florida, a group that advocates for legal marijuana use by adults. “And we also believe it's the only way it's going to pass in Florida because Gov. DeSantis has made it clear that he will not allow it to be legalized on his watch through the Legislature. And the Legislature has made it pretty clear that they're not interested in doing anything, in terms of forward progress for marijuana reform.”

Prosecution varies in Florida

In Florida, possessing 20 grams (about 0.7 ounces) or less of marijuana is a first-degree misdemeanor commonly called simple possession. The same applies to possession of drug paraphernalia, such as a smoking pipe or bowl. Those offenses carry a maximum penalty of one year in jail and a fine of up to $1,000, with the suspension of a driver’s license a possibility.

The possession charge jumps to a felony if it occurs within 1,000 feet of a school, college or park. If the amount is 20 grams or more, the charge becomes a felony with a maximum sentence of five years.

Possession of any amount of other street drugs, such as cocaine and methamphetamine, is a felony in Florida.

Minardi is familiar with the intersection between marijuana and the law in Florida. He represented the first Florida resident to win a court case overturning an arrest on the grounds of using marijuana for personal medical use before the state program existed.

Minardi, now a candidate for the Florida House in the Tampa area, said most first arrests for misdemeanor possession do not result in prosecution. Prosecutors in Florida’s 20 judicial circuits typically offer diversion programs, in which defendants participate in a drug education course and the State Attorney’s Office files a “no prosecution” order.

“For a long time now, especially for a first offense or second offense, most of the time people are getting court costs and stuff like that — not really any probation anymore,” Minardi said. “Usually they get probation if it's a second or third offense, potentially.

He added: “This is an issue that differs between county to county. So the larger counties, they're more likely to not really care and be much more lenient on it, whereas, I think there in Lakeland, Polk, those counties, it's still a major crime to them.”

The State Attorney’s Office for the 10th Judicial Circuit, based in Bartow, prosecutes cases in Polk, Highlands and Hardee counties.

“Law enforcement has many options when they encounter someone that is illegally possessing marijuana,” Assistant State Attorney Jacob Orr said by email. “The individual could be arrested, provided a notice to appear, or offered pre-arrest diversion (if they are eligible).”

Orr said the State Attorney’s Office independently evaluates each case. He said the “vast majority” of misdemeanor defendants are offered diversion, a path that moves the case out of the court system and allows the opportunity to avoid a criminal record. 

Turner, the Gulf Breeze resident, received an offer of diversion after his first arrest for misdemeanor pot possession in 2007, when he said a friend in the vehicle he was driving had the drugs. That removed the option of diversion when Turner was arrested a second time.

Turner, then 23, said he and a friend were “stupid” and smoked a joint while on their way to a movie theater. An off-duty police officer saw them and called to another officer, who pulled them over and made the arrest, according to a police report.

Soon after that, Turner went to the beach with a friend who owned a car dealership. Turner said the friend forgot to put a license on the vehicle he used, and as they left the beach a police officer made a stop. The officer cited Turner for possessing less than 20 ounces of marijuana and paraphernalia — a glass smoking pipe.

Turner said he hired a lawyer rather than using a public defender and escaped with a fine and had adjudication withheld.

“I wasn't eligible for any kind of diversionary program that time because I had already used that up the time before,” he said. “So it puts you further along each time. You use up your diversionary program, now you're on real probation. Then once they give you adjudication withheld, they're less likely to give you adjudication withheld down the road.”

Even if a judge agrees to withhold judgment, avoiding a formal conviction, an arrest still shows in court records. That can be a hindrance in applications for jobs, college scholarships, housing, professional licenses or government assistance.

“It is technically still on their record,” Minardi said. “They would have to go through either and a sealing or expunging process to get it off their record.”

Minardi and his wife, Sol, are co-founders of the nonprofit Tu Canna 420 Foundation, which strives to “expand recognition of how cannabis improves people’s well-being.” The foundation regularly holds events at which Minardi offers his services to have arrest records sealed or expunged.

The lawyer said he has probably handled more than 200 cases over the past two years, the majority of them for people with marijuana-related arrests.

“And it's amazing, every time I talk to someone I kind of learn a different effect someone has had because of a possession charge on their record,” Minardi said, “from housing to benefits to jobs to insurance and clearances, in some situations people have had problems with. Even as a criminal attorney, when I started doing all those expungements and talking to the different people, I was shocked as to the effect or the detriment that some of these people had for, again, just misdemeanor possession charges.”

Minardi said that it usually takes at least a year to get a case sealed or expunged in Florida. He said the process is easier in some other states.

More Polk County news:

• Medical marijuana not just for subcultures as patients of all walks of life seek relief
• Lakeland testing lab for cannabis set to expand as part of Polk's emerging pot industry
• Medical marijuana grower looks to plant roots in southwest Lakeland

Arrests heading downward

Statistics from the Florida Department of Law Enforcement show that arrests for marijuana possession have declined notably since the emergence of the medical marijuana industry.

The FDLE documented nearly 45,000 arrests statewide for misdemeanor cannabis possession in 2018, along with 11,752 felony arrests. The figure for misdemeanor arrests declined by 25.9% in 2019 and by 60.4% in 2020 before rising slightly in 2021.

Overall, arrests for misdemeanor possession dropped by 74.2% from 2018 to 2020. Including felony arrests for marijuana possession, the decline was 30.1% over the same period.

The Polk County Sheriff’s Office reported making only a combined four arrests in 2020 and 2021 on a solo charge of misdemeanor possession of marijuana and one so far this year. In the two previous years, the sheriff's office arrested 4,034 people for felonies while also charging them with misdemeanor cannabis possession, the agency reported.

The agency averages about 18,000 jail bookings a year on all charges for arrests made by all the county's agencies, a spokeswoman said.

Total arrests for misdemeanor possession of marijuana declined by 59.4% from 2017 to 2021, according to statistics the sheriff's office provided to The Ledger. The agency recorded 4,596 such arrests in 2017, before the county’s first dispensary opened, and 1,866 in 2021.

The numbers declined most markedly from 2018 to 2019, with a drop of 39.4% from year to year. The figures include all people arrested by the sheriff's office who had at least one cannabis charge, spokeswoman Carrie Horstman said.

“What I can tell you is that what we normally see is marijuana and meth (methamphetamines), marijuana and trespassing, marijuana and burglary, marijuana and DUI,” Polk County Sheriff Grady Judd said. “Usually the marijuana accompanies other charges. … It’s still against the law. So whether you do a pre-arrest diversion — as we do many times with juveniles – or not, it's still against the law and we're not rule makers. We're rule enforcers.”

More Florida news in connection to marijuana:

• 7 arrested in Walton County after deputies seize over 6 pounds of meth, other drugs
• Laced drugs in Gadsden claim nine lives over holiday weekend
• 6 arrested at Niceville home where drugs, dog poop found around young kids

In 2014, Judd was perhaps the most prominent opponent of Amendment 2, the proposed constitutional amendment that sought to make marijuana legal for medical use. John Morgan, founder of the personal-injury law firm Morgan & Morgan, bankrolled that first campaign for the amendment, and he and Judd squared off at a forum in Lakeland organized by The Ledger.

Amendment 2 fell short of the 60% approval needed in 2014, but two years later voters decisively passed a similar measure.

Judd remains unalterably opposed to any step toward full legalization of marijuana. He discounts the idea of cannabis as a safe or harmless drug, and he often makes that point during news conferences to discuss arrests on serious charges in which marijuana is a factor.

“I've spent my entire adult life seeing the violent, sad, depressing side of illegal drugs — and legal drugs — that have ripped families apart and caused death and destruction,” Judd said, “and nothing can make me change my core belief that the abuse, whether it's a legal drug or an illegal drug, abuse of drugs is bad. Always has been and always will be.”

Judd added: “We don't see the person that goes home on Friday night and smokes marijuana and gets up and goes to work on Monday morning. We just see the people that are robbed over marijuana, that are shot over marijuana, that are murdered over marijuana. And that usually has to do with the sale, the possession, the failure to pay your drug bills. So when they call it a low-level, nonviolent drug, I categorically deny that because of the residual conduct around the marijuana.”

Judd said nothing has changed about the way his agency enforces laws against marijuana possession since the emergence of dispensaries in Polk County legally selling cannabis products.

Uneven enforcement?

Goldstein and other critics of the inclusion of marijuana in the decades-long “war on drugs” say that possession laws in Florida and nationwide are not neutrally enforced.

The American Civil Liberties Union issued a report finding that more than half of arrests in the country in 2010 involved marijuana, though the figure had declined to 43.2% by 2018. Florida did not rank among the 15 states with the highest rates of marijuana arrests per resident, and none of the 20 counties with the top arrest rates were in Florida, the ACLU reported.

The organization analyzed arrests made from 2010 to 2018 and determined that Blacks were 3.73 times more likely than whites to be arrested on marijuana-related charges.

“It’s political and it's racist,” Goldstein said of the continued criminalization of marijuana possession. “It has no basis in safety or health. Some areas of Florida have not decriminalized, but they have passed civil citation laws, which means that someone with 20 grams or less can be issued a ticket instead of being arrested. But that is at the officer’s discretion, which means if you're like me, an old white lady, and something happened, I’d probably get a ticket. But if you're a young Latin or Black man, you're going to get arrested.”

Minardi cited a factor that he says has reduced possession arrests.

The Farm Bill passed by Congress in 2018 legalized the regulated production of hemp, a form of cannabis containing only trace amounts of THC, the chemical that causes psychological effects when marijuana is consumed. Hemp has been used for centuries as a source for fabric, paper and food products, including seeds, powders and oils.

The following year, the Florida Legislature enacted a state hemp program, passing a bill co-sponsored by Sen. Ben Albritton, R-Wauchula. The program, overseen by the Florida Department of Agriculture and Consumer Services, provides licenses for growers and appoints colleges and universities to monitor hemp pilot projects.

Because hemp and marijuana are easily confused, law enforcement faced a new challenge in proving that a substance seen or smelled by an officer was actually the illegal form of cannabis.

“So it's much more difficult for law enforcement to search and seize products based on odor and the look of it,” Minardi said. “You can look around, there's been state attorney's offices who have issued memos for their districts informing officers that typically now they need something plus, in addition to odor and just the sight of cannabis.”

Judd said that his department has purchased field testing kits for all deputies to have in their vehicles. Deputies insert a sample into a pouch filled with chemical ampoules, and within seconds a reaction causes a color change, indicating whether the substance exceeds the legal threshold of 0.3% THC.

Horstman, the sherrif's office spokeswoman, estimated that the agency owns about 2,000 of the NIK Narcotics kits, which cost $3.18 each.

If the test shows the substance contains less than 0.3% THC and qualifies as hemp, the owner gets it back with no arrest — though Judd said his deputies have the option of taking the sample for a more precise laboratory test that can yield charges later if the substance tests above the legal threshold.

Judd said he doesn’t know how often deputies test for suspected marijuana that turns out to be legal hemp because deputies don’t need to file reports on such incidents.

Legal weed isn't cheap 

Medical marijuana is well established in Florida, and it isn’t difficult to find an outlet selling legal products — at least in metropolitan and suburban areas. So why would anyone still need to buy and possess cannabis in illegal forms?

Some Floridians who consume marijuana merely for the high might lack any medical condition that would qualify them for a doctor’s medical recommendation.

That’s not an issue for Turner, the Gulf Breeze resident. He said he has degenerative disc disease and received a patient identification card from the Florida Office of Medical Marijuana Use in 2018. He notes, with irony, that Gulf Breeze officials passed an ordinance prohibiting cannabis dispensaries within the city, a step some other municipalities took after the passage of Amendment 2 in 2016.

Getting access to legal marijuana in Florida takes a certain amount of effort and expense, starting with a visit to a doctor qualified to recommend the drug.

“The biggest problem that people have is the cost,” Minardi said. “Going to see a doctor, that's the initial cost, can be anywhere from $100 to $200 plus. And then you have to pay $75 to the state of Florida so they can issue you a new card. And then once you look into the cost for the price of the cannabis — that's why there's still a lot of people going to the black market, because the price is extremely high for most people, and the quality, a lot of times, isn't that great.”

The companies that produce cannabis products for Florida’s dispensaries are regulated and subject to testing. But Minardi said he is not aware of any death resulting from consumption of street-level marijuana.

Turner questioned why Florida requires marijuana patients to see a doctor every seven months to renew the certification, adding to the treatment expense. Patients with other chronic illnesses controlled through medication, such as diabetes or heart disease, don’t face the same mandate.

Turner has had additional arrests since he was first popped for marijuana possession in 2007.

While attending a music festival in Suwanee County in 2011, an undercover officer arrested him for possession of alprazolam (brand name Xanax), which he said he planned to take for sleep. The officer also charged him with misdemeanor possession of marijuana and paraphernalia.

Turner said he has at time sold drugs to friends, and in 2019 he drew felony charges for possession of marijuana with intent to sell, possession of THC concentrate and possession of LSD in Santa Rosa County.

Adjudication has been withheld on all of the felony counts, but Turner said he was on bond for more than two years after the last charges.

“And the entire time, I had no idea what's going to happen to me,” he said, “because they wanted to literally throw me in jail for several months. They wanted to make me a convicted felon, and they wanted me to be on house arrest when I got out.”

Turner, who has been through various jobs since graduating from college, said most employers won’t consider an applicant who is awaiting a final judgment on a charge. He added that many companies have changed their application forms, asking if a prospect have ever been arrested for a felony and not just about convictions.

Turner, who holds a degree in finance, said he considers himself well-qualified for a position in the medical marijuana industry but unlikely to find one because of his arrest history. He said he missed out on “a great job opportunity” last year because he was preoccupied for months with court proceedings and the potential employer grew tired of waiting.

Last summer, Turner reached resolution in his latest case, receiving three years of probation with adjudication withheld. He is eligible to have the probation lifted in July. He said he is looking for a low-level job as he considers his career options.

“It's such an injustice, and it's so sad to see people being hurt for something that's harmless,” Turner said. “And literally our government, the government and the governor of Florida, recognizes that it's a medicine. … You’ve got this state that's benefiting from this blossoming medical marijuana industry. And on the other hand, they're still freaking throwing people in jail like it's going out of season and charging them with Schedule 1 (possession).”

Gary White can be reached at gary.white@theledger.com or 863-802-7518. Follow on Twitter @garywhite13.