By Glenn Burhans
Florida voters will soon consider a proposed constitutional amendment titled “Amendment 3: Adult Personal Use of Marijuana” that would eliminate state-law criminal penalties on the possession and use of small amounts of marijuana by adults.
The opponents of this common-sense initiative are running a political advertisement falsely claiming that if Amendment 3 passes, Florida will smell like weed.
The fact is that their claim (as with many political ads) is simply not true. This misleading claim is amplified by some politicians who have also falsely claimed that Amendment 3 would forbid the Florida Legislature from regulating the “time, place, or manner” of marijuana use.
As an attorney who represents the sponsor of the Amendment, I understand the apprehension over becoming a “stinky state”. No one should have to endure the odor of marijuana while commuting to work, walking the dog, enjoying dinner at a favorite restaurant or even relaxing at the beach with their family and friends.
If voters approve the amendment to allow adults the ability to safely enjoy lab-tested marijuana for personal use, the legislature will have full authority to regulate or ban the use of marijuana in public places—authority that it already exercises for tobacco and alcohol.
The sponsor of the amendment, Smart & Safe Florida, carefully drafted the language to accommodate both the liberty interest of the individual and the public’s interest in clean, family-friendly streets, parks, beaches, and other 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 state legislature – as it should.
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 plain text and basic purpose.
Smart & Safe Florida did not write an amendment on a blank slate, and Amendment 3 does not exist in a vacuum. 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. They can and should pass a law banning the smoking of marijuana in public that would go into effect immediately upon adoption of the amendment.
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 and would not do. It is simply wrong, and misleading, to say that the amendment creates an unfettered right to use marijuana in public that it plainly does not.
Glenn Burhans of Florida-based Stearns Weaver Miller represents the Smart & Safe campaign.
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