Barney Bishop: Flawed Amendment 2 exempts pot industry from liability

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Most everyone who believes in compassion supports the idea of medicinal marijuana for debilitating conditions, which is envisioned in Constitutional Amendment 2 and will be before voters on November 4.

What most voters do not yet understand is how flawed the wording is for Amendment 2.

The author of this amendment specifically wrote it so that the entire marijuana industry is exempt from liability, except for automobile accidents.

This is precedent-breaking, as no industry in American history has ever been given a general waiver from liability. None!

Think about that for a moment. This amendment if passed gives the grower, the distributor (a/k/a the dispensary), the recommender (a/k/a the doctor) and the user complete exemption from any lawsuits, unless it involves an automobile accident.

For example, that means if a grower was to accidentally use a carcinogenic herbicide to kill a pest on his or her grove, no one can sue them. If the doctor recommended med pot that ended up being way too strong for a patient, or for a non-debilitating condition, that doctor cannot be sued or even sanctioned by medical regulators.

If the pot consumer was to make a mistake like spilling water or some other slippery liquid on the floor of a retail business and a customer slipped and seriously injured themselves, the customer cannot sue the person using med pot even though they may have clearly been at fault.

Again, think about that: If no one in the pot industry can be liable, then who is? Here’s where it becomes a trial lawyers’ dream come true. In the case cited above, the (non-pot) business establishment, however, would still be liable for the actions of its employees who are pot consumers. That means that the business is clearly left holding the baggie, which is exactly what Orlando trial lawyer John Morgan and his brethren want – the one with the deep pockets!

That’s right; the business community will be the only defendant because it enjoys no immunity in this devious plot to waive liability. And it doesn’t matter whether businesses know their employee is on med pot or not.

In fact, even if they know that their employee is consuming medical weed, they may not have any right to let that employee go under anti-discrimination laws that prohibit action against employees that have medical issues.

Just like society can’t easily regulate the placement of sober homes in neighborhoods because of the potential for discrimination, employers will face the same problem.

This liability hangman’s noose will then lead to increases in all forms of insurance, from workers’ compensation to general liability to health to auto. The business community will then pass on these costs to consumers and we’ll see insurance costs increase substantially in Florida.

No other state in the country that has legalized medical marijuana has given a liability waiver to everyone involved in the production, distribution, sale and use like Amendment 2’s authors have in Florida.

Why did the authors do that here? Because the immunity will protect the profits of those who invest in the pot industry, and the explosion in lawsuits will reap benefits for John Morgan and his law firm and others who will quickly get into the act. All they have to do is point to the wording of Amendment 2.

There will even be lawsuits about whether a city or county can reasonably restrict dispensaries to certain locales, or keep it so many feet away from a school, church, or playground. In this case, Jon Mills, the former House speaker, will be glad to go to court to justify his amendment language and what his intent was.

The author and proponents have already started arguing that the Florida Legislature will have every chance to “regulate” parts of the amendment like caregivers, etc.

This is laughable because any lawyer worth his or her salt already knows that when a “right” is put into the Florida Constitution, courts must protect that right, and lawyers for pot growers, pot docs, and pot users will push for the most liberal protection they can get – all because of the way Amendment 2 is worded. This will generate litigation for decades to come, thus being a nice annuity for the author of the ballot measure and other lawyers.

This amendment is fatally flawed. Despite proponents’ arguments, Florida’s version of med weed is the most lenient in the country.

That’s what makes this amendment such a raw deal for Floridians. If it were drafted in such a way to help just the truly sick and needy, then perhaps this could be more helpful than hurtful.

Yet this amendment makes the business community the prized target of lawsuits because businesses are the only ones left with insurance to pay plaintiffs. Vote no on Amendment 2.

Barney Bishop III is the president and CEO of Barney Bishop Consulting, LLC. Barney can be reached at [email protected]. Column courtesy of Context Florida.

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One comment

  • Ron

    August 8, 2014 at 11:59 am

    Oh Barney, to mix my metaphors, keep swinging away Mr. Blind Squirrel, maybe you will find a nut you can hit out of the park.

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