Marijuana Business Consultation

Making marijuana legally accessible – whether for medicinal or recreational purposes – has been a hotly debated topic for the last 20 years. Many states have decriminalized possession of small amounts. Others have made it available to those suffering from serious chronic or terminal illnesses. Two so far have made it legal to buy and sell nominal amounts for recreational purposes.

The Florida Right to Medical Marijuana Initiative, Amendment 2, asks voters whether they will legalize marijuana access for medicinal purposes to qualifying patients and/or caregivers.

Miami Medical Marijuana Attorneys at Jacobs Keeley are dedicated to providing sound legal advice to those exploring marijuana dispensary options, as well as those who may be facing criminal charges for the medical use of marijuana.

As of this writing, 23 states plus the District of Columbia have legalized the use of medical marijuana, while Colorado and Washington legalized recreational use in 2012. In early 2014, Florida lawmakers approved a tightly-controlled cultivation and dispensing system that legalized noneuphoric strains of the drug.

Efforts to expand access continue.

Nationally, the marijuana industry was worth $1.7 billion as of 2011, and that figure is rapidly growing. But the fact is for now, no matter what voters in Florida and other states decide, marijuana cultivation, distribution and possession are still illegal under federal law.

Federal Marijuana Laws

The Controlled Substances Act, codified in 21 U.S.C. 811, does not distinguish between medical and recreational marijuana use and sale. Under this statute, marijuana is a Schedule I narcotic, subject to the most severe penalties and formally recognized as having no medically acceptable use.

Of course, the law is outdated and has faced numerous judicial and legislative challenges in recent years. However, none so far has been successful, even though there is ample evidence the drug effectively helps to control seizures, boost appetite in cancer patients and provides relief from certain other serious illnesses.

As it stands:

  • Cultivation of 100 plants or possession of 100 kilograms carries a 5-year minimum mandatory prison sentence, increased to 10 years with a prior felony drug conviction.
  • Cultivation of 1,000 plants or possession of 1,000 kilograms carries a 10-year minimum mandatory sentence, increased to 20 years with a prior felony drug conviction.

California and other states that were early to medical marijuana rights have seen numerous dispensaries shut down, and operators imprisoned – sometimes for decades - under federal drug trafficking laws. What’s more, millions of dollars in assets belonging to dispensaries and dispensary operators have been subjected to civil forfeiture.

Enforcement has come despite President Obama’s assertion that such action should not be a priority of the U.S. Justice Department.

When Washington and Colorado passed measures allowing marijuana sale for recreational use, U.S. Attorney General Eric Holder promised federal prosecutors would respect state laws that create provisions for adult sale and use of marijuana. Although reserving the right to pursue action under the Controlled Substance Act, he directed U.S. Attorneys nationwide to focus on the following enforcement efforts:

  1. Distribution of marijuana to minors.
  2. Revenue from marijuana sales diverted to criminal enterprises, gangs and cartels.
  3. Diversion or transport of marijuana from states where it is legal to states where it is not.
  4. Marijuana activity used as a cover or pretext for trafficking of illegal activity.
  5. The use of firearms or violence in the cultivation or distribution of the drug.
  6. Drugged driving and other activities that negatively affect public health.
  7. Marijuana cultivation on public lands, particularly where environmental danger is posed.
  8. Prevention of marijuana use or possession on federal property.

The instructions further specifically stated marijuana dispensaries should not be charged for being large and profitable – which was the criteria that many DOJ prosecutors previously used.

But even with these directives, prosecutors have a fair amount of leeway to target marijuana dispensaries, as well as those who do business with them.

Additionally, banks and landlords have been reticent to engage with medical marijuana organizations – even when they are operating legally under state guidelines – for fear of prosecution under criminal money laundering laws and civil forfeiture statutes. No regulatory guidance has been offered for those in the financial services industry in this regard, leading to a great deal of uncertainty.

While patients haven’t historically been the prime target of federal enforcement action, the U.S. Supreme Court has granted federal prosecutors the authority to do so if they choose.

Florida marijuana dispensary operators, nursery owners, and patients and/or doctors facing criminal marijuana charges should seek immediate legal counsel.

Amendment 2

Florida’s Amendment 2, slated to go before voters Nov. 4, 2014, would legalize marijuana for medicinal purposes in the state. Its merits and consequences have been sharply debated by both advocates and opponents.

If passed, the measure would be initiated as an amendment to the state constitution. It would guarantee:

  • That the possession or use of marijuana for medical purposes by a qualifying patient or caregiver won’t be subject to criminal or civil sanctions under state law.
  • That licensed doctors won’t be criminally charged or held civilly liable under state law for issuing medical marijuana to a patient diagnosed with a debilitating medical condition.
  • Registered medical marijuana treatment centers will not be subject to criminal sanctions or civil liability under state law.

Under the law, “debilitating medical conditions” are specified as:

  • Cancer
  • Glaucoma
  • Hepatitis C
  • HIV/AIDS
  • ALS (Lou Gehrig’s Disease)
  • Multiple sclerosis
  • Chrohn’s disease
  • Parkinson’s disease
  • Any other condition a doctor deems medical use of marijuana benefits will outweigh the risks.

Even if the measure passes, the State Legislature will retain significant control over the final outcome. That’s because it’s up to state lawmakers to decide what kind of rules will be imposed on those who obtain the drug, how it’s distributed and under what conditions.

Contact the Miami marijuana defense attorneys at Jacobs Keeley Trial Lawyers for a confidential appointment to discuss your rights.

Call us at (305) 358-7991.

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