Corrections Officer Takes Medical Marijuana Firing Case to Florida Supreme Court

August 28, 2023 Criminal Defense, Drug Charges, News & Announcements

The legal confusion and misconceptions surrounding medical marijuana continues to puzzle Floridians.

In one recent case, a Department of Corrections officer is taking matters to the Florida Supreme Court after getting fired for his prescribed use of medical marijuana for PTSD. The case brings up the ongoing issue of whether Floridians should be allowed to possess a firearm while they have a valid medical marijuana card.

This blog post will provide the Florida Supreme Court case details, information on Florida’s current stance on medical marijuana and gun possession, the federal laws that prohibit change to Florida’s laws, and the proposal for legal recreational marijuana for the 2024 election ballot.

Case Details

Samuel Velez Ortiz was a Florida Department of Corrections officer until he failed a random drug test in 2021. Velez Ortiz was fired from his position, due to the Department’s “zero tolerance” policy on drugs. However, Velez Ortiz had been approved by a doctor to use medical marijuana to treat his post-traumatic stress disorder (PTSD) from his time in the military.

Velez Ortiz challenged the Department’s firing by taking the dispute to the 1st District Court of Appeals after the Public Employees Relations Commission backed the dismissal. In the Appeals Court, a three-judge panel cited the federal law that makes the possession or use of marijuana illegal.

Both federal and state laws both make it illegal for any person to use marijuana and possess a gun. As a corrections officer, Velez Ortiz is required to qualify with firearms and be issued a gun during situations such as prison riots. That means although he had a doctor give him permission to use lawfully use medical marijuana, he cannot do so while working in a position where he is required to use a gun.

The initial ruling by Judge Clay Roberts along with Judge Stephanie Ray and M. Kemmerly Thomas stated the following:

“Because Mr. Velez Ortiz uses medicinal marijuana to treat his post-traumatic stress disorder, he is a regular user of marijuana. Although he can legally possess and use medical marijuana under state law, his use of it is illegal under federal law. Accordingly, he cannot lawfully possess a firearm. Each time he does, he is committing a felony. And each year, he is required to possess a firearm to qualify. And as a result, he is violating his requirement to maintain good moral character, which is required to keep his correctional officer certification.”

Velez Ortiz’s attorney filed a notice to challenge the June 21 decision made by the District Court of Appeals. The proceedings for the Florida Supreme Court are on hold until the 1st District Court of Appeals rules on Velez Ortiz’s motion for a rehearing.

Where Florida Stands on Medical Marijuana and Guns

While it is both legal to possess marijuana with a valid medical card and possess a gun in Florida, you cannot do both simultaneously.

In April 2022, Florida Agriculture and Consumer Services Commissioner Nikki Fried announced her plan to sue the Biden administration over the federal laws on possession of medical marijuana and guns, alleging that the federal prohibitions violate Second Amendment rights. However, in November 2022 the lawsuit was thrown out. U.S. District Judge Allen Winsor issued a 22-page ruling that granted a request by the Department of Justice to dismiss the lawsuit.

The following is a statement by Judge Winsor addressing the lawsuit and the Constitution’s Supremacy Clause:

“In 2016, Florida stopped criminalizing the medical use of marijuana. Many people refer to this change as Florida’s ‘legalizing’ medical marijuana, but Florida did no such thing. It couldn’t. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits, and federal law still prohibits possession of marijuana—for medical purposes or otherwise.”

Also cited in the lawsuit was the federal law referred to as the Rohrabacher-Farr Amendment which bars Justice Department officials from using federal finances to prevent states from providing their own medical marijuana laws. However, Winsor rejected this argument as well:

“Regardless of whether plaintiffs are prosecuted (or whether Congress allocates funds for their prosecution), possession of marijuana remains a federal crime. The Rohrabacher-Farr Amendment at best precludes prosecution now; it does not forever bless plaintiff’s actions.”

In March 2023, Florida Gov. Ron DeSantis signed HB 543 to eliminate the requirement for a concealed weapons license. Now Florida residents or those eligible will no longer have to complete a training course or undergo a background check prior to purchasing a weapon or firearm. You can read more about the specific laws and violations under the permit-less carry law here.

However, many Floridians were confused on how the new permit-less carry applies to those with a medical marijuana card. In short, it doesn’t. HB 543 mainly changed the process of legally purchasing or possessing a firearm. Federal law still provides that medical marijuana patients cannot lawfully possess or purchase a gun while their medical card remains valid.

Federal Laws that Conflict with Florida Statutes

There are several federal laws in place that conflict with possessing both a firearm and marijuana.

Under the U.S. Controlled Substance Act, marijuana is classified as a Schedule 1 drug. This means the federal government sees it with a high potential for abuse, and is therefore unlawful to produce, possess, or distribute any cannabis or THC products.

Additionally, 18 U.S. Code §922 states that it is unlawful for any person to possess or purchase a firearm if they are considered an unlawful user of or addicted to any controlled substance defined under the Controlled Substance Act.

Any person who wishes to purchase a firearm must fill out Form 4473. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) requires specific questions to be answered prior to purchasing a gun. The form includes a question pertaining to the use of controlled substances. If the person filing form 4473 admits to any drug use—even if it is with a medical marijuana card—they will be denied their eligibility to purchase a gun. However, a person who attempts to lie on the form and is caught faces up to five years in prison.

To read more on medical marijuana and guns in Florida, find our blog post here.

Recreational Marijuana on the Horizon?

While Florida still currently prohibits recreational marijuana use, there may be legal changes with the upcoming elections.

Trulieve, Florida’s largest medical marijuana provider, has sponsored the Smart & Safe Florida campaign to support the legalization of marijuana for recreational use. According to the proposal, there was a requirement to obtain 891,523 signatures to place it on the 2024 election ballot. The statewide total for the collected signatures currently sits at 1,013,352—meaning Floridians will have the opportunity to vote on the matter next fall.

The proposal would allow adults who are 21 or older to legally purchase, possess, or use marijuana products and accessories for non-medical personal consumption. This includes smoking, ingestion, or other methods. Those who fall within the legal age range will be allowed to legally possess up to three ounces of marijuana.

It will also allow Medical Marijuana Treatment Centers (MMTC) and other state licensed entities to acquire, cultivate, process, manufacture, sell, and distribute such products and accessories.

The following is a statement from Trulieve CEO Kim Rivers:

“Our investment [in the campaign] demonstrates our firm belief that Floridians are ready to experience the freedom to use cannabis for personal consumption; a freedom which is currently enjoyed by more than half of America’s adults. With over 965,000 validated signatures from nearly every part of the state, it is clear these voters share that belief. We are thrilled the campaign has made this milestone and look forward to seeing this initiative on the ballot next November.”

Contact a Marijuana Criminal Defense Attorney

As the rules surrounding medical marijuana and gun possession continue to cause confusion among Floridians, it is important to have a defense attorney you can turn to for any marijuana-related offenses. Don Pumphrey has years of experience working on drug cases in Florida, with a team that understands the nuances of both State and Federal laws. While our office only covers State cases, we can provide insight or education on the conflicting Federal laws.

If you or a loved one are facing criminal prosecution for a marijuana-related offense, contact Pumphrey Law Firm today. Our Tallahassee criminal defense attorneys are prepared to fight for you and your freedom. Contact our office at (850) 681-7777 or leave us an online message.

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