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FL Supreme Court weighing prison guard’s dismissal for using medical marijuana

BY: MICHAEL MOLINE - OCTOBER 19, 2023 2:51 PM OG Article: here

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A case filed with the Florida Supreme Court tests whether the Department of Corrections properly fired a corrections officer because of his use of medical marijuana while off work.

Florida’s First District Court of Appeal upheld the firing, but Samuel Velez Ortiz now argues before the state Supreme Court that the action violates both the Florida Constitution’s sanction of medical marijuana and the U.S. Supreme Court’s recent rulings establishing a broad right to bear firearms.

The state Public Employees Relation Commission upheld the firing, reasoning that his medical marijuana use rendered him unqualified to carry a firearm — a condition of his employment — under federal law prohibiting use of the drug.

A petition that Velez Ortiz’s attorneys filed with the state Supreme Court cites 2022’s New York State Rifle Pistol v. Bruen, in which the justices in Washington established a public right to carry firearms outside the home for self protection. Subsequent rulings by a federal trial judge in Oklahoma and the U.S. Court of Appeals for the Fifth Circuit upheld the right of sober persons to carry guns even if they smoked marijuana on other occasions.

Florida Department of Corrections photo.“This lower court’s [First DCA] opinion permits a sanction on medical marijuana patients, which results in loss of employment for being a qualified patient and strips a person’s right to bear arms for being a qualified patient. The opinion states because he uses medical marijuana ‘he cannot lawfully possess a firearm. Each time he does, he is committing a felony.’”

The brief notes that Velez Ortiz was a qualified medical marijuana user because of his PTSD and never worked while under the influence. A random drug test flagged him for cannabis metabolites.

Florida’s voters in 2016 added an amendment to the state Constitution allowing the use of marijuana to treat a number of conditions. The state regulates the drug’s cultivation and sale. The state’s reply brief, filed Thursday, notes that “federal law makes it a felony for ‘prohibited persons’ to possess a firearm … and prohibited persons include those unlawfully using controlled substances under the Controlled Substances Act, like marijuana.” It continues: “And, because Florida law also requires corrections officers to possess good moral character, which necessarily includes not engaging in felonious conduct, the court determined that petitioner could not use medicinal marijuana and maintain his certification as a corrections officer.”

The case is Velez Ortiz v. Florida Department of Corrections. He reportedly began working for the department in 2013 and the U.S. Department of Veterans Affairs had diagnosed him with combat-related post-traumatic stress disorder. The record before the Supreme Court is unclear about where Velez Ortiz worked.


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