JACKSONVILLE, Fla. - Forget what you think you know. Medical marijuana has been legal in Florida for more than two decades, for some people.
"The state of Florida has allowed medical marijuana on a limited basis since 1991," said Chris Ralph, the legal administrator with Health Law Services in Jacksonville.
Ralph's firm specializes in medical necessity cases. He says his firm has close to a hundred patients that have established medical necessity.
"As we reach out to law enforcement officials, most of them are surprised that this law even exists," Ralph said.
In 1991, the Florida First District Court of Appeals established what could be the first doctrine in the country to allow medical marijuana. But you've likely never heard of it. The case was Jenks vs the state of Florida. Kenneth and Barbara Jenks were suffering from AIDS and treating their disease with cannabis. They were later charged with growing the illegal drug.
The court ruled that patients suffering from debilitating diseases have the right to consume, possess and cultivate marijuana, provided they can establish they have a legal medical necessity. It defined medical necessity as the lesser of two evils. If there isn't a safer alternative and if the evil they're trying to avoid is more heinous than the use of marijuana, then they're legally allowed to use it.
"Anyone who is taking a medication that can cause death has an absolute defense from any prosecution because they are using the least harmful alternative to treat their conditions," said Ralph.
In other words, if a doctor has diagnosed you with a debilitating condition and the only treatments available for that condition can cause more harm than marijuana, then by law you can claim medical necessity.
You may remember earlier in May, when WINK News introduced you to Bob and Cathy Jordan of Manatee County. Cathy was diagnosed with ALS in 1983 and given three to five years to live. More than 20 years later, the Jordan's say cannabis is the only thing keeping Cathy alive.
But in February of last year, Manatee County Sheriff's Deputies arrested Bob for growing cannabis. The state declined to prosecute because the Jordan's had established a medical necessity defense.
All of this begs the question, if medical marijuana is already legal, why are you being asked to vote for it?
Ben Pollara, the Campaign Manager for United for Care, the organization behind the constitutional amendment to legalize medical marijuana says, "amendment 2 is absolutely necessary. A sick and suffering patient should not have to prove, post-arrest their medical necessity. They should be able to follow the recommendations of their physician without having to worry about arrest and loss of personal property."
"Really, the only thing holding a person back now is knowledge...it's not knowing that the law exists," Ralph said.
Something interesting we discovered during our investigation. By now you've heard of Colorado's recreational marijuana market. But before that law went into effect, the state had a booming medical marijuana industry. That industry wasn't approved by voters or lawmakers, instead it was a 2009 court case, very similar to the one in Florida, that legalized medical marijuana in that state.