Caregiver claims by medical marijuana opponents aren't on the books

Even with polls showing plenty of Floridians are ready to approve the medical marijuana amendment on the November ballot, opposition groups are aggressive about trying to swat down supporters’ arguments.

One such group is Vote No On 2, which has dedicated a website to pointing out what it calls loopholes in the ballot measure. Among them, the group says, is that the proposal would let almost anyone give out the drug to patients.

"It will be easier to become an Amendment 2 'caregiver' legally empowered to distribute pot than it will be to get a driver's license," the site says. The "drug dealer loophole," as Vote No On 2 calls it, means that caregivers don’t need medical training and "can be felons -- even drug dealers."

This echoes a similar claim by Don’t Let Florida Go to Pot, which argued that caregivers "are not required to have any background checks, training or certifications" to give patients medical marijuana.

PolitiFact Florida wanted to know whether obtaining permission to be a caregiver would be as easy as Vote No On 2 makes it sound. Would the measure actually let felons and drug dealers be in charge of handing out marijuana?

Unfortunately, it’s premature for us to put this claim to the Truth-O-Meter, because the regulations concerning caregivers haven’t even been written yet.

"The amendment language does not set up a process for caregiver IDs like it does for patients," said Ben Pollara, campaign manager for United for Care, the group that pushed to put the proposal to a vote. Those regulations are up to the state health department to define, when and if the amendment passes, he said.

Still, given the importance of this ballot question for this fall’s election, we thought the claim was worth a closer look.

First, we turned to the ballot measure itself. The ballot summary says, "The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers."

It defines caregivers as someone 21 years old or older, who has willingly agreed to be licensed to help a patient. Caregivers, whether they are personal assistants to patients or staff at a hospice or medical facility, are limited to five patients and not allowed to consume the medical marijuana they’ve been entrusted to dispense.

If Amendment 2 were to pass, the state would have six months to write its rules and regulations, and another three to begin issuing ID cards and registrations. Pollara said there would be a two-month window between when the amendment passes and when it becomes effective, so the entire system is scheduled to be up and running by October 2015.

PolitiFact Florida has checked other claims about things that aren’t defined in the amendment language before. We looked at teens potentially having access to the drug (it will likely be only 18- and 19-year-olds) and what the term "other conditions" means to medical marijuana users (doctors will be the ones deciding what qualifies).

But when it comes to comparing whether it’s easier to obtain caregiver status than it is to get a drivers license, there’s just no way to know yet, since the amendment’s framers have repeatedly kept things vague. It’s effectively leaving it to the state to decide how strict it wants to be.

That hasn’t stopped Vote No On 2 -- a campaign run with the help of Drug Free Florida and funded in part by anti-drug activist Mel Sembler -- from implying that 16-year-olds would be going through a more thorough vetting as they take a written exam and road test than would caregivers charged with buying, possessing and handing out out medical marijuana.

"The pivotal point is the distinction between what Amendment 2, as written, requires, and what may be implemented later," Susan Kelsey, an attorney for Vote No On 2 told PolitiFact Florida. "Our claim is that Amendment 2 itself does not impose any requirements on people seeking to be caregivers other than their age and their agreement to serve as caregivers.

"No one can predict precisely what caregiver restrictions may be enacted later; or whether, once enacted, such added restrictions would be upheld if challenged in court," Kelsey said.

Karen O’Keefe, director of state policies at the Marijuana Policy Project, which favors regulations like the amendment, said while it’s impossible to say exactly what steps Florida would take in regulating these caregivers, other states do have rules that can serve as possible guideposts.

In Vermont, for example, a patient must designate a person to provide them with marijuana (that state also lets them to grow their own plants, which the measure in Florida would not allow). That person must fill out an application, submit to a criminal background check and be photographed and registered, plus pay a $50 fee.

Caregivers in some states also must re-register periodically, usually every year or so, O’Keefe said. ID cards can be revoked for misconduct.

Ultimately, Florida could add any restrictions it chooses, such as denying the IDs to felons. Vermont, for instance, won’t allow people with drug-related felonies to register, while some other states expand the guidelines to prevent people with other violent crime convictions to disqualify applicants.

Making the minimum age 21 and requiring a background check are two things Floridians applying for drivers licenses don’t have to do, O’Keefe added.

If 60 percent or more of Florida’s voters approve Amendment 2, we’ll check back in 2015 to see what the health department has outlined.