By: Russ Young, Partner, Sarasota

On November 8, 2016, voters of the State of Florida passed a constitutional amendment by a 71% to 29% margin. This amendment legalized the use of medical marijuana for “debilitating medical conditions” when prescribed by a physician. Subsequently, the state legislature passed Florida Statute Section 381.986 entitled, “Medical Use of Marijuana,” which banned the use of smokable marijuana. The definition was challenged in the courts, and a Leon County Circuit Judge found that the statute is not constitutional when compared to the constitutional amendment approved by the voters. The decision is being reviewed by the 1st DCA and is under a temporary stay. The Attorney General for the State of Florida has defended the constitutional challenge of the new statute; however, newly elected Governor DeSantis agrees with the Leon County Judge. He has given the legislature until March 15, 2019 to fix the statutory language, or the state will withdraw its appeal of the order, and the Circuit Judge’s ruling will stand.

Governor DeSantis may be right; the constitutional amendment defines marijuana as having the same meaning given to the word cannabis in Florida Statute Section 893.02(3) which is, “[A]ll parts of any plant of the genus cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plan; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. . . “ The legislature attempted to change this definition when it excluded “marijuana in a form for smoking” from the definition of “medical use.” As of February 4, 2019, the legislature was working on changes; however, whether the legislature fixes the problem or the Leon County Judge’s decision stands, it appears that smokable marijuana for medical purposes will, in the not too distant future, be permissible in the State of Florida. 

Why should you care? So far there have been very few workers’ compensation claims filed with our firm requesting repayment for medical marijuana. Up until this point, the medical marijuana that is being prescribed and dispensed in Florida has not been smokable and contains very low amounts of THC which is the component in marijuana that gives a user the euphoria or “high” that has been sought by recreational users. It is anticipated that, when smokable marijuana is permissible, claims for medical marijuana reimbursement will grow dramatically.

So what will we do? The position of the undersigned and most, if not all, members of this firm is that all claims for medical marijuana should be denied. Currently, under federal law, it is illegal to manufacture, distribute, dispense, or possess marijuana which is a Schedule I substance under the Federal Controlled Substance Act. Perhaps more importantly, a person can face federal prosecution if he or she aids or abets another party in the commission of a federal crime. That issue was addressed directly by the Maine Supreme Court in 2018. (Gaetan H. Borgoin v. Twin Rivers Paper Company, LLC, et al., Decision 2018 ME 77, Maine Supreme Judicial Court (2018)). In Borgoin, Mr. Borgoin was a laborer for a paper company who was on total disability since 1989. His treating physician recommended he stop the use of narcotic medication due to the adverse effects. Mr. Borgoin obtained medical marijuana certification in January 2012 and, since that time, used medical marijuana to control his chronic pain.  The Maine equivalent of a Judge of Compensation Claims ordered the carrier to reimburse Mr. Borgoin for the medical marijuana. The Maine Appellate Division affirmed that decision and it was taken to the Maine Supreme Court.  The Maine Supreme Court held that the subsidizing of Mr. Borgoin’s use of medical marijuana would meet the elements of the crime of aiding and abetting, and therefore, the carrier was not required to reimburse Mr. Borgoin for his medical marijuana purchases. 

Not all states agree. Currently there are three states which require carriers to reimburse for medical marijuana: New Jersey, Minnesota, and New Mexico. If the federal government, as has been rumored, removes marijuana from the list of Schedule I narcotics, I suspect all states with Medical Marijuana Laws will require carriers to reimburse injured workers.

The issue is still in its infancy in the State of Florida. It remains to be seen what the federal government will do as well as what the Florida courts will do. For now, denial seems to be the way to go. Though the federal government has not been prosecuting these offenses, as the Maine court said, it does not matter whether the federal government will prosecute an adjuster for the reimbursement for the purchase of marijuana. What matters is, they can.