Saying Attorney General James Uthmeier and other opponents are seeking to “deprive Florida voters of the chance to decide the issue for themselves,” supporters of a recreational marijuana constitutional amendment urged the Florida Supreme Court to clear the way for the proposal to go on the November ballot.
In an 84-page brief filed late Friday, the Smart & Safe Florida political committee argued that the proposed ballot initiative meets legal requirements to go before voters. The Supreme Court must decide issues such as whether the proposed ballot wording is clear and whether the measure improperly deals with multiple subjects.
“Here, the ballot title and summary clearly and unambiguously inform voters of its chief purpose: allowing adults 21 years or older to possess, purchase, and use marijuana,” attorneys for Smart and Safe Florida wrote in the brief.
Uthmeier, the Florida Chamber of Commerce, Associated Industries of Florida, the Drug Free America Foundation and the group Parental Rights Florida filed briefs this month contending that the Supreme Court should block the proposal. Smart & Safe Florida sponsored a similar ballot proposal in 2024, but it fell short of receiving the required 60 percent voter approval.
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In the brief Friday, Smart & Safe of Florida attorneys argued that opponents “recycle some of the same arguments that this court did not find persuasive at that time (in 2024), and they add a handful of new arguments that misunderstand the governing legal standards and misinterpret the proposed amendment. The court should again allow Floridians to resolve the marijuana question at the ballot box.”
The opponents contend, in part, that the proposal is misleading because of an issue about where smoking and vaping marijuana would be barred.
'In public' vs. 'any public place'
The proposed ballot summary — the wording voters would see when they go to the polls — says smoking and vaping would be prohibited “in public.” But opponents contend that conflicts with the detailed text of the amendment, which says smoking and vaping in “any public place” would be prohibited. The text provides a definition of “public place” that includes numerous places such as parks, beaches, roads, sidewalks, schools, arenas and government buildings.
The opponents argue that the part of the text about barring smoking in public places is narrower than the summary’s description of a ban on smoking in “public” — potentially leading to voters being misled about the effects of the amendment.
“The ballot summary would lead voters to believe that voting yes would ensure there is no marijuana — or its smell — ‘in public,’ while the actual amendment delivers no such thing,” Uthmeier’s office argued. “The ‘in public’ summary language would likewise deceive Florida parents into thinking this initiative will prohibit marijuana smoking near their children in hotels, restaurants, sports venues, and other areas open to the general public. The initiative provides no such protection.”
Smart & Safe Florida’s brief pushed back against the argument, saying it “ignores the full scope of the proposed amendment.”
“The proposed amendment preserves the authority of private property owners to ban all consumption of marijuana on their premises,” Smart & Safe Florida attorneys wrote. “So the actual question here is whether a reasonable voter would understand a prohibition on smoking and vaping ‘in public’ to prohibit that activity on private property where the owner allows it. The answer is clearly no.”
The brief added, “It is unrealistic, to say the least, that Whole Foods, AMC Theatres, or Gold’s Gym will suddenly allow patrons to smoke marijuana under this proposed amendment. The proposed amendment’s prohibition on smoking in public places targets exactly what many voters care about: areas in which all persons have a legal right to access without the approval of any other party, like streets, sidewalks, parks, beaches+ and public transit.”
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The opponents also contend the Supreme Court should block the proposal because marijuana remains illegal under federal law. Pointing to what is known as the Supremacy Clause of the U.S. Constitution, opponents’ briefs contended federal law would effectively trump a change to the state Constitution allowing recreational marijuana.
“Federal law criminalizes the acquisition, cultivation, processing, transportation, and sale of marijuana,” said the Chamber of Commerce brief, which was joined by the Florida Legal Foundation and former state appellate Judge Frank Shepherd. “The proposed constitutional initiative would allow it.”
But Smart & Safe Florida said the Supreme Court allowed the 2024 proposed constitutional amendment to go on the ballot after similar arguments about a clash with federal drug laws. The brief filed Friday also said the Supreme Court lacks the “constitutional jurisdiction to render such an opinion, much less to deprive the people of the right to adopt the proposed amendment by removing it from the ballot.”
“Despite the fact that states have been legalizing marijuana for 30 years, moreover, no court has held that a scheme like this one is facially preempted by the CSA (the Controlled Substances Act, the federal law at issue),” Smart & Safe Florida attorneys wrote.
The Supreme Court has scheduled oral arguments case Feb. 5.
Petition deadline approaches
The case is part of a broader battle about whether the proposed marijuana amendment will go on the November ballot. Gov. Ron DeSantis, Uthmeier and groups such as the Florida Chamber of Commerce helped lead efforts to defeat the 2024 proposal and are again fighting this year’s measure.
Smart & Safe Florida also must submit at least 880,062 valid petition signatures to the state by Feb. 1. While the committee has said it has collected more than 1 million signatures, the state Division of Elections website Monday showed 675,307 valid signatures had been tallied.
Smart & Safe Florida this month filed a lawsuit in Leon County circuit court alleging state elections officials, who are part of DeSantis’ administration, had improperly directed the invalidation of about 72,000 signatures.
Circuit Judge Jonathan Sjostrom on Thursday found that state officials improperly directed invalidating about 42,000 petitions signed by what are known as “inactive” voters. But he upheld a separate directive to invalidate nearly 29,000 petitions collected for the marijuana initiative by out-of-state petition gatherers.
Smart & Safe Florida and Secretary of State Cord Byrd’s office both quickly appealed Sjostrom’s ruling to the 1st District Court of Appeal.
