Florida’s pot proposal called ‘fatally flawed’ by state attorney general

TALLAHASSEE, Fla. - Attorney General James Uthmeier and two major business groups have urged the Florida Supreme Court to reject a proposed recreational-marijuana constitutional amendment, arguing it is misleading and conflicts with federal law.

Uthmeier, the Florida Chamber of Commerce and Associated Industries of Florida filed briefs Friday as the Supreme Court prepares to make a pivotal decision about whether the proposed constitutional amendment meets legal tests to go on the November ballot.

RELATED: Recreational marijuana could return to Florida ballot in 2026

The backstory:

The political committee Smart & Safe Florida is sponsoring the proposal, which would allow people age 21 and older to use recreational marijuana. In addition to needing Supreme Court approval, Smart & Safe Florida must meet petition signature requirements by Feb. 1.

The Supreme Court is not supposed to consider the merits of proposed constitutional amendments but looks at issues such as whether wording is clear and whether proposals improperly deal with multiple subjects.

The brief filed by Uthmeier’s office called the pot proposal "fatally flawed."

"It misleads voters in a way designed to garner greater approval, is flatly invalid under the federal Constitution and violates the single-subject requirement," the attorney general’s brief said. "The (Supreme) Court should therefore strike the proposed amendment from the ballot."

Uthmeier, who was then Gov. Ron DeSantis’ chief of staff, and the Chamber of Commerce were among leading opponents of a similar proposed constitutional amendment sponsored in 2024 by Smart & Safe Florida. The amendment fell short of receiving the required 60 percent voter approval to pass, leading Smart & Safe Florida to try again to pass an amendment in 2026.

The other side:

In a statement Monday, Smart & Safe Florida pushed back against the opponents’ new briefs.

READ: Many young adults turn to cannabis for sleep—but it may backfire

"In 2024, the Florida Supreme Court rejected nearly identical arguments, upheld a virtually identical amendment and again provided a clear roadmap for ballot approval," the statement said. "We followed the Court’s guidance, and we anticipate they will again follow Florida law and approve the current ballot language. 5.9 million voters approved of the measure in 2024, and over a million Florida voters have signed petitions to put the current language on the ballot, we hope their voices won’t be ignored."

Dig deeper:

Uthmeier’s office and the business groups contend the proposal is misleading because of an issue about where smoking and vaping marijuana would be barred.

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 the 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."

The briefs filed by Uthmeier’s office and the business groups and another brief filed by the Drug Free America Foundation 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, the briefs contend 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."

The Supreme Court considered arguments about potential conflicts with federal law before allowing the 2024 recreational-marijuana amendment to go before voters. The court’s main opinion said that for such a challenge to succeed, "we must find that a law would be unconstitutional in all of its applications. We decline to make that broad finding here. A detailed analysis of the potential conflict between sections of this (proposed 2024) amendment and federal law is a task far afield from the core purpose of this … proceeding under the Florida Constitution."

Five justices approved allowing the 2024 amendment to go on the ballot, with four signing on to the main opinion. Two justices dissented.

What's next:

Smart & Safe Florida faces a Jan. 12 deadline for filing arguments at the Supreme Court.

The political committee also must submit at least 880,062 valid petition signatures to the state by Feb. 1. While it indicated in Monday’s statement it had collected more than 1 million signatures, the state Division of Elections website showed 675,307 valid signatures had been tallied.

Smart & Safe Florida last week filed a lawsuit in Leon County circuit court alleging state elections officials had improperly directed the invalidation of about 72,000 signatures.