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South Florida Sun Sentinel. July 16, 2021.
Editorial: The Legislature abused Floridians’ approval of medical marijuana. Now, the courts are too
Whether medical marijuana is wise or necessary is not for Florida’s courts to say. The people of our state have already settled that by voting it into the constitution. The initiative passed with some 6.5 million votes, a 71% landslide, in the 2016 election.
And yet, in a stunning display of judicial activism and arrogance, one of those courts has sabotaged what the people won by literally inviting insurance companies to refuse payment to doctors who prescribe the drug and to patients for what they spend to obtain it.
That decision, by a three- judge panel of the notoriously politicized First District Court of Appeal in Tallahassee, went far beyond what it needed to say to decide a worker’s compensation appeal brought by Patrick Shawn Jones against his employer, Grace Healthcare of Lakeland.
Jones wanted the company to pay for a physician who could prescribe marijuana for the pain he had suffered since a work-related accident in 2001. His employer had been providing conventional treatment but balked at the request for pot.
In grudgingly implementing the initiative, the 2017 legislative session stipulated that marijuana "is not reimbursable under Chapter 440," the worker’s compensation statute. It said nothing about other forms of insurance.
To no great surprise, a judge of compensation claims cited that language in ruling against Jones, holding that it applied to physician services as well as to the drug itself.
The judge agreed, however, that marijuana would be a "medically necessary benefit" to relieve long-term pain and spare Jones the side effects of conventional painkillers but added that requiring Grace Healthcare to pay for it would expose the company to prosecution under federal law.
The First District could have settled the case simply by upholding that ruling. However, it plainly had an ulterior motive in mind. The opinion also went out of its way to say that the worker’s compensation judge had been wrong as to the medical necessity.
Federal law prevails, said the three appellate judges. That law, the Controlled Substances Act, "provides that marijuana is not safe and has no use in medical treatment," the court said.
"Simply put, Jones cannot force Grace Healthcare to pay for an evaluation by a health care provider that has as its sole purpose the facilitation of marijuana treatment, which is not reimbursable and has no accepted, safe medical use," the court concluded. "As a matter of law the evaluation is not, and cannot be, medically necessary." (Emphasis supplied.)
The opinion, reflecting the prejudice of judges rather than any facts in the record, was written by Judge Adam Scott Tannenbaum, whom Gov. Ron DeSantis appointed in 2019. Previously, he was general counsel to the Florida House of Representatives, which is controlled by a Republican majority that opposes initiatives to allow recreational use of marijuana. The other judges on the panel were Stephanie Ray, a Rick Scott appointee in 2011, and Lori S. Rowe, appointed by Charlie Crist in 2009.
Their language could have serious implications for other forms of insurance, especially the personal injury benefits that Florida motorists are still required to purchase under the no-fault auto insurance law. It remains in force after DeSantis vetoed legislation to repeal it.
John Morgan, the Orlando lawyer who sponsored and largely financed the 2016 medical marijuana initiative, remarked in a telephone interview with the Sun Sentinel that "There’s no telling what the implications are, and I don’t think it’s on many people’s radar right now."
"If you’ll recall," he said of the Legislature, "they did everything they could to make it as hard as possible" to obtain medical marijuana despite the amendment. "Their agenda was to limit marijuana use, not enhance it."
The language of the initiative said nothing about insurance eligibility.
Florida law allows only 75 words in the ballot title of an amendment proposed by initiative, limiting its scope.
"You have to trust the Legislature, which I don’t, to carrying out the people’s will," Morgan said.
Now, the courts apparently can’t be trusted to carry it out either.
Missing — conspicuously — from the First District’s decision is any recognition of the fact that, since 2014, Congress has forbade the Justice Department from interfering with medical marijuana in any of the states that have legalized it. The language, known as the Rohrbacher-Farr Amendment, has been incorporated in every annual appropriations bill for the department.
In other words, Congress has nullified the law, if only temporarily, with respect to medical marijuana.
Arguing that Congress had protected only state officials, the Department continued to prosecute medical marijuana patients and growers but gave up after a district judge in Washington, D.C, and the Ninth Circuit Court of Appeals ruled against it.
At least five states, according to the Associated Press, allow medical marijuana compensation under their worker’s compensation statutes. They are Connecticut, Maine, Minnesota, New Jersey and New Mexico.
New Jersey’s Supreme Court made that decision in April, brushing aside an employer’s arguments that marijuana was not medically necessary for the employee in question and that providing it would put the company in peril of federal prosecution. In contrast to Florida’s First District Court of Appeal, the New Jersey court took specific note of the Rohrabacher-Farr Amendment, which mooted any threat to the employer.
Throughout our history, states have led the way into places where Congress was afraid or unwilling to go, among them the child labor laws. Medical marijuana is the newest of these. According to the National Conference of State Legislatures, 36 states and 4 territories allow the medical use of cannabis products. Congress needs to deal with it too.
It’s past time for Congress to amend the Controlled Substances Act to make those programs legal under federal law as well. The Rohrabacher-Farr Amendment is only a stop-gap that needs to be re-enacted every year. Granted, few members of Congress want to have a pro-pot vote come back at them in campaign attack ads, but that’s essentially what the Rohrabacher-Farr Amendment is.
Whether medical marijuana is wise or necessary is no longer for the Congress to say. The people of the United States have made that decision.
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Miami Herald. July 17, 2021.
Editorial: Gaming companies placed a $62 million bet against Florida voters. Don’t let them win
Consider yourself warned, Florida. The door has been flung wide open for more gambling and everyone is scrambling to get a piece of the action.
How else to explain this astonishing piece of news: Gambling interests pumped a whopping $62 million in political contributions last month into groups and efforts that could influence the future of sports betting and casino gambling via ballot initiatives in 2022, according to a Miami Herald story.
With that kind of money on the table, the potential market in Florida must be huge. No doubt much of this interest springs from the Legislature’s easy approval this year of a $500 million gambling deal negotiated between the Gov. Ron DeSantis and the Seminole Tribe.
Out-of-state, sports-gaming companies FanDuel and DraftKings are each in for a cool $10 million, money they put into a political committee pushing to expand online sports betting across the state. They were iced out of the Seminole deal.
The Las Vegas Sands, a powerful new player, dropped $17 million into a political committee linked to two ballot issues for more casinos. Sources told the Herald that the company is interested in purchasing existing parimutuel licenses to open casinos in Jacksonville and other northern Florida spots.
Miami’s Magic City Casino anted up $15 million for its own political committee, official purpose unspecified. And the Seminole Tribe, winner of the last round of Gambling Gone Wild in this state, put $10 million into yet another a political committee, mostly likely to defend its crown.
CONTRIBUTION CAP
It’s as if the statewide amendment that requires voter approval for casino gambling expansion — approved in 2018 with 71 percent of the vote — never happened at all.
The timing of this slew of cash isn’t a coincidence. A new law was supposed to go into effect July 1 to limit contributions for signature-gathering — a requirement to get a proposed amendment on the ballot — to a paltry $3,000 per organization. But a lawsuit was filed, and a federal judge temporarily blocked the law just as it was about to go into effect.
And don’t forget, the push to impose this contribution cap came from Republicans seeking to make it harder to get so-called "citizen initiatives" on ballots. If they’d known the bill might harm big gambling interests — which they embraced wholeheartedly in the last legislative session — they probably would have carved out an exception.
It’s not completely clear yet which organization wants what next year. But the Miami Herald sketched it out this way: FanDuel and DraftKings are looking for their own online sports betting deal to be approved by Florida voters. The Seminole Tribe wants to be ready to defend its 30-year gaming deal, which is still awaiting approval from the federal government. The Sands organization is eyeing casinos in nothern Florida. And Magic City’s stake is designed to make sure parimutuels have a place at the table.
If that sounds like the state is being carved up like a roast at Sunday dinner, well, we agree.
UNITED OPPOSITION
The staunch opposition to more casinos in Miami-Dade County seems to have turned much of the interest farther north for now. We’re grateful for the wall of opposition here, led by Miami Beach Mayor Dan Gelber, developer Armando Codina and Miami billionaire Norman Braman. Their united front over the years, and especially in the last year, has no doubt blunted the effects of this effort to undermine the voice of the people.
We don’t have a casino at the Fontainebleau Resort in Miami Beach or at the Trump resort in Doral, despite worries about that during the legislative session. The local governments in Miami Beach and Doral have both passed ordinances against that kind of development.
But keep your eye on that one. The door isn’t closed there.
And don’t expect any help from your governor, who already is looking longingly toward Washington. DeSantis met in March with Miriam Adelson, who now controls the Las Vegas Sands since her husband, Sheldon Adelson, died. That’s right about the time the big gambling deal was being hammered out.
But more gambling is not yet a done deal in this state. Getting a constitutional amendment onto the ballot in Florida isn’t easy. And any amendment must pass with at least 60 percent of the vote. No matter how much money the gambling companies throw at Florida, voters still have the final say.
In the end, the biggest bet the gambling industry is making is on your complacency.
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Orlando Sentinel. July 20, 2021.
Editorial: We’re begging you, Gov. DeSantis, stop messing in Texas and save Florida from COVID
Florida was all over the news this past weekend with one of the nation’s biggest spikes in COVID cases and hospitalizations.
And where was Gov. Ron DeSantis as this health crisis resurged? Visiting hospitals? Consulting with physicians and public health experts? Huddling with his staff to brainstorm ways of persuading more Floridians to take the vaccine that would nip this pandemic in the bud?
Nope. Florida’s governor was in Texas, 1,000 miles from Tallahassee, burnishing his 2024 presidential ambitions with a visit to the southern border.
The governor was back in Florida on Sunday but, once again, not to focus on the COVID health crisis but this time to make fun of Anthony Fauci in a speech before a crowd of young conservatives in Tampa.
"Fauci gets invited to throw out the first pitch at the baseball game last year but he doesn’t know how to throw a baseball," the 42-year-old governor said of the 80-year-old public health official’s bungled attempt.
"He did the worst first pitch that I’ve ever seen anybody do," DeSantis crowed.
Always classy, our governor, who then encouraged the Turning Point USA crowd to go buy campaign merch emblazoned with Fauci mockery.
Predictably, DeSantis said nothing in his speech about how Florida has become the poster child (except perhaps for Arkansas) for the surging number of COVID cases attributed to the wildly contagious Delta variant.
Overall new COVID cases are up nearly 200% in Florida over the past two weeks, and Florida is third in the nation in per capita increases, accounting for nearly 20% of the entire nation’s new COVID infections. The rate of positive COVID tests is now well north of 10%. Recent data show Florida with the fourth-highest rate of COVID hospitalizations and the nation’s highest average for daily deaths over the past week.
Deaths have always been a lagging indicator in this pandemic, so the current wave of cases and hospitalizations could portend another summer of grief for Florida.
Meanwhile, Florida remains mired in vaccination mediocrity, compared with the rest of the nation. We’re a middle-of -the-pack state with barely 57% of the adult population fully vaccinated, below the national average. The AARP just reported that Florida has the second lowest rate of vaccinated nursing home workers in the nation, and a lower than average population of nursing home residents vaccinated.
And the governor is making fun of how Anthony Fauci throws a baseball?
To save lives, he must start acting like Florida’s governor and less like he’s auditioning for Turning Point USA or Texas Gov. Greg Abbott or whatever Fox News host comes calling.
The governor needs to launch another vaccination tour, like the one he did earlier this year that helped get a big chunk of Florida’s senior population protected.
DeSantis and his surrogates are constantly reminding us of his success with senior vaccinations. Why not come to the aid of other Floridians now?
DeSantis said Monday that he questions the tactics of the "quote-unquote ‘experts’ who lambaste people and criticize them or say they’re stupid or something." DeSantis said. "That’s not the way to reach folks."
Terrific. Then speak to people in terms that you think will work. Address their concerns head-on with facts and science. Ask them to ignore the social media agents of bad faith and lies. Stand alongside his surgeon general, doctors, nurses, researchers and other public health officials who will vouch for the vaccine.
Use vaccinated seniors as a backdrop. Bring clergy members into to the effort. Buy lots of time on TV and cut ads for social media. Maybe designate your wife, Casey, as the face of the campaign, someone who could appeal to young parents.
We know that hospitalizations of vaccinated people are rare and deaths even rarer. The Orange County Department of Health said that for the past three days 100% of positive COVID cases have been among unvaccinated people. One. Hundred. Percent.
As part of the new COVID offensive, the governor needs to restore daily COVID reporting of infections, deaths and other data. Those reports ended in early June amid declines and a case positivity rate below 5%. Clearly, conditions have changed, and so should the flow of information to Floridians. Now the public is made to wait in anticipation until Friday afternoon to learn what the virus has done in Florida.
At the moment, it’s as if DeSantis has washed his hands of the matter and moved on to elections, borders, critical race theory, mocking Fauci or whatever else will get him a headline.
And every few days, nearly as many people are dying from COVID as died in the recent collapse of a condominium in South Florida.
"Leadership is about handling problems."
That’s what DeSantis told the conservative TPUSA crowd on Sunday.
We agree. Completely.
Please, governor, we’re begging you, handle the COVID problem. Be a leader.
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Palm Beach Post. July 21, 2021.
Editorial: Housing funds aren’t a piggy bank for Florida lawmakers
When the Florida Legislature gathers in Tallahassee, a sweep of the Sadowski Housing Trust Funds to pay for projects that have nothing to do with housing usually follows.
State documentary stamp taxes on real estate sales provide the Sadowski funds with $423 million annually for state agencies and local governments to develop initiatives to help people own homes and afford rents. The funds are critical for Palm Beach County and much of Florida, as the housing market becomes less affordable. Yet, state leaders too often see the funds as nothing more than a piggy bank for other budgetary priorities.
After years of pillaging the only funds for affordable housing initiatives, this year lawmakers came up with an odd fix: They would keep their hands off the funds, in exchange for permanently cutting the amount it provides for housing.
The remedy is as nonsensical as "raiding" hundreds of millions in designated housing money during an unprecedented affordable housing crisis.
Unfortunately, the Legislature has a history of dipping into trust funds to pay for things for which they’re not designated, like corporate tax cuts and pet projects. In one particularly galling move that came to light after the condominium collapse in Surfside, legislators had diverted $15 million over the last three years from the Insurance Regulatory Trust Fund. That fund pays for programs that enforce laws and regulations and help condo boards understand their responsibilities in maintaining their buildings.
Florida has roughly 80 trust funds, according to a 2017 report by the Office of Florida’s Chief Financial Officer. Whether it’s anti-fraud prevention, highway safety or international trade promotion, they all rely on specific fees, fines or taxes to address specified problems.
Over the past three years, lawmakers have skimmed $1 billion from various trust funds and moved the money to other uses. The "Unobligated Cash" section of every state budget reveals the impacted trust funds and the amounts of diverted money. More than half of those so-called "sweeps" — about $559 million — was meant for the current budget year which began July 1.
Besides the Insurance Regulatory Trust Fund, lawmakers swept $105 million since 2019 from the Agency for Health Care Administration’s Grants and Donations Trust Fund, which pays health insurance costs for low-income uninsured children.
Last year, the governor left the Sadowski fund whole, for a change. The same can’t be said for the Department of Environmental Protection’s Inland Protection Fund, which generates money to protect sensitive lands from oil and chemical spills, It took an $85 million hit.
The "Unobligated Cash" section only shows the decisions lawmakers took in reaching the final budget. It doesn’t take into account any trust fund sweeps Gov. Ron DeSantis also might make. Last month, for example, vetoes by DeSantis swept away $40 million in housing funds.
The Sadowski trust funds have been Florida’s biggest target when it comes to raiding a dedicated source of revenue for the general budget. Since 2002, when then-Gov. Jeb Bush took $12 million from it, an estimated $2.3 billion in housing money has been diverted to other programs and expenses.
Now, half of the fund instead will go towards sea-level rise and wastewater projects, leaving a paltry $209 million a year for housing programs and angering those who want to see greater efforts taken to curb the impact of higher housing prices.
The Florida Realtors are up in arms. They’re petitioning to change the state constitution to overturn the new law and prevent future housing fund sweeps. Yet, many affordable housing advocates, including The Sadowski Coalition, remain cool to that idea. They insist that while the new appropriations are smaller, the money still exceeds what had been left over after lawmakers raided the housing trust fund in the past.
But there’s no dispute housing becomes less affordable by the day.
It now costs $1,650 a month to lease a one-bedroom apartment in Palm Beach County and the median cost of a house is $475,000. And the county’s once-$20.5 million share of Sadowski funding for affordable housing has been cut to a paltry $9.7 million.
Old habits die hard. The drama may be over when it comes to lawmakers filching dedicated housing funds, but the ability to address an increasingly unaffordable housing market is still in question. So too is the practice by state leaders of eyeing trust funds as easy fixes to enduring problems.
END