Before the COVID-19 pandemic, Florida tourism reached a record 128.5 million visitors in Fiscal Year 2019 — “the equivalent to 2.2 million additional people being added to Florida’s resident population.”

See State of Florida Long-Range Financial Outlook, Fall 2019 Report, as “Adopted by the Legislative Budget Commission”, September 12, 2019, p.43-45. http://edr.state.fl.us/Content/long-range-financial-outlook/3-Year-Plan_Fall-2019_2021-2223.pdf. These visitors generated 13% (over $3.22 billion) of Florida’s sales tax collections. According to Visitflorida.org, visitor spending in Florida reached almost $94 billion and supported over 1.5 million Florida jobs.

See https://www.visitflorida.org/media/30679/florida-visitor-economic-impact-study.pdf. Though estimates vary depending on data reporting methods, the significance of Florida tourism spending is undeniable. Why then is Florida discouraging tourists and snowbirds reliant on medical marijuana from visiting Florida?

Authored By: Robyn L. Vines

An unlikely occurrence? – perhaps not. In August 2020, a 70 year old grandmother filed suit against a popular Florida theme park and local police after she was arrested in 2019 for possession of CBD oil she said was authorized by her doctor in North Carolina. See Burkhalter v. The Walt Disney Company, et. al., Orange County Circuit Court, Orange County, Florida.

 Wait – I thought Medical Marijuana Use is Authorized in Florida –

It is commonly known that medical marijuana is available in Florida for qualified patients without fear of civil or criminal liability,[1] yet whether that same immunity extends to tourists and “snow birds” while in Florida appears to be unsettled. One wonders how much revenue Florida loses from tourists and “snow birds” who won’t visit Florida because they cannot lawfully use the medical marijuana prescribed them. Worse, when patients are arrested because they cannot get Florida authorization to use medical marijuana what will be the effect on tourism?

Florida’s Constitution declares its public policy on medical marijuana use within the state as:

The medical use of marijuana by a qualifying patient or caregiver in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law.

Florida Constitution, Article X, §29(a)(1). It directs the state to issue regulations “to ensure the availability and safe use of medical marijuana by qualifying patients,” [2] and acknowledges the Legislature may enact statutes consistent with the Constitution.[3] Importantly, the Constitution’s definition of a qualifying patient is broad: “a person who has been diagnosed to have a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card.”[4] It provides no residency restrictions and, thus, the Constitution seemingly authorizes medical marijuana use, subject to its’ provisions, by anyone in Florida – residents, snowbirds and tourists alike. But the Florida Statutes seem to contradict the Florida Constitution.

Constitutional Authorization for All Qualifying Patients. As the starting point, Florida’s Constitution prohibits marijuana use by anyone who has not been designated as a qualifying patient.[5] To become so designated, one must obtain 1) a “physician certification” and 2) a valid “qualifying patient identification card” issued by Florida’s Department of Health. [6] [7] [8]  For snowbirds and tourists, becoming a qualifying patient will likely necessitate an advance trip to Florida and will require the snowbird or tourist’s abstinence while in Florida until receiving the qualifying patient identification card. To get the card, the snowbird or tourist must obtain a physician’s certification which cannot be issued without a physical examination by a doctor licensed in Florida, a complete medical records review, and a recommendation for medical marijuana use.[9] [10] Also, the snowbird or tourist cannot lawfully bring medical marijuana into Florida. [11] Instead, once authorized for Florida medical marijuana use, the snowbird or tourist must obtain the medical marijuana from a Florida licensed Medical Marijuana Treatment Center, also referred to as an MMTC. Thus, before traveling to Florida, snowbirds and tourist medical marijuana patients should understand how long the process to obtain authorization for medical marijuana use in Florida may take, identify a qualifying physician, schedule the physician appointment, and coordinate transferring all necessary medical records for the Florida physician’s review.

Summarized, although Florida’s Constitution does not prohibit tourists and snowbirds from using medical marijuana in Florida if the proper designation is obtained, getting the designation necessitates advance planning and, likely, a period of abstinence while working through the process. Yet, as noted above, Florida’s statutes appear to tell a different story, to wit: only Florida residents may lawfully use medical marijuana in Florida – maybe.

Statutory Authorization is only for Residents and Seasonal Residents.   Unlike the Florida Constitution’s broad authorization for medical marijuana use by a “person” who becomes a “qualified patient,” Florida’s statutes only permit medical marijuana use by Florida residents and “seasonal residents.”

Florida Statutes §§381.986(5)(b) & (7) provide the restrictions. They require a patient to obtain a medical marijuana use registry identification card issued by Florida’s Department of Health which then authorizes lawful possession and use of medical marijuana in Florida; however, the card may only be issued to a Florida resident or a “seasonal resident.”  Thus, per the statutes, a tourist is unable to lawfully use medical marijuana in Florida – even if authorized in his home state or country. A snowbird, however, may lawfully use medical marijuana in Florida if they qualify as a seasonal resident which, essentially, is a long-term visitor, under Florida law.[12]

If Florida’s Constitutional authorization for medical marijuana use is not residency restricted, why then is a residency restriction imposed by the Florida Statutes? What is the legal authority for the statutory residency restriction? The residency restriction seems to have originated from Florida’s compassionate marijuana use statute which pre-dated the 2016 Constitutional amendment authorizing broader availability of medical marijuana in Florida.

To explain, Florida’s current medical marijuana statute originated in 2014 as the Compassionate Medical Cannabis Act of 2014 [13] and, at its inception, only authorized medical marijuana (then called Low-THC cannabis) use by permanent Florida residents. Florida Statutes §§381.986(1)(d)&(2)(a). In 2017, the statute was amended to “implement s[ection], Article X of the State Constitution by creating a unified regulatory structure.” [14] Though intended to ‘implement’ the Constitutional amendment, the 2014 residency restrictions not found in the Constitutional amendment were interposed within the 2017 statutory amendment. Stated differently, the statute that was amended specifically to implement the Constitutional amendment retained its pre-existing residency requirement despite that the Constitution does provide any residency restrictions.  These statutory residency restrictions persist to this day and, thus, seem to contradict Florida’s Constitutional authorization of medical marijuana for qualifying patients, irrespective of residency.

So what is a tourist to do if he or she relies on medical marijuana to treat or manage a medical condition? Regrettably, the practical answer may be to avoid Florida until a clear legal answer exists. To do otherwise may be to risk arrest and criminal prosecution while on vacation. Faced with these possibilities, I expect future ‘grandmother’ tourists will choose to visit our beautiful theme parks, beaches, tropical climate and boating community after our legal contradiction is resolved.

[1] Florida Constitution, Article X, § 29; Florida Statutes §389.986.

[2] The Department shall issue reasonable regulations….The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients. Florida Constitution, Article X, §29(d).

[3] “Nothing in this section shall limit the legislature from enacting laws consistent with this section.” Florida Constitution, Article X, §29(e).

[4] Florida Constitution, Article X, §29(b)(10)(emphasis added).

[5] Nothing in this section authorizes the use of medical marijuana by anyone other than a qualifying patient. Florida Constitution, Article X, §29(c)(3).

[6] See footnote 4.

[7] “Identification card” means a document issued by the Department that identifies a qualifying patient or a caregiver. Florida Constitution, Article X, §29(b)(3).

[8] “Department” means the Department of Health or its successor agency. Florida Constitution, Article X, §29(b)(2).

9] “Physician” means a person who is licensed to practice medicine in Florida. Florida Constitution, Article X, §29(b)(8).

[10] “Physician certification” means a written document signed by a physician, stating that in the physician’s professional opinion, the patient suffers from a debilitating medical condition, that the medical use of marijuana would likely outweigh the potential health risks for the patient, and for how long the physician recommends the medical use of marijuana for the patient. A physician certification may only be provided after the physician has conducted a physical examination and a full assessment of the medical history of the patient. Florida Constitution, Article X, §29(b)(9).

[11] Nothing in this section shall affect or repeal laws relating to non-medical use, possession, production, or sale of marijuana. Florida Constitution, Article X, §29(c)(2).

[12]    A ‘seasonal resident’ is defined as one who temporarily resides in Florida for at least 31 consecutive days annually, maintains a temporary residence in Florida, returns to his or her home jurisdiction at least once annually, and is registered to vote or pays income tax in another state or jurisdiction. Florida Statutes 381.986(5)(b).

[13] Laws 2014, c. 2014-157.

[14] Laws of Florida 2017-232, sec. 1 & 3.