HarrisMartin’s Catastrophic Loss & Liability Update



For Documents, visit www.harrismartin.com


– March 2006

Hurricane – Repair Class Action

Plaintiff Says Condo Board Mismanaged Hurricane Repairs, Squandered Insurance

WEST PALM BEACH, Fla. – A resident of a hurricane-damaged condominium has filed a class action against the condo’s board of directors and reconstruction company, alleging gross mismanagement and seeking the temporary appointment of a receiver to determine the building’s fate. Kas v. Tiara Condominium Association Inc., et al., No. 502006CA02 (Fla. 15th Jud. Cir., Palm Beach Cty.).

Ali M. Kas, owner of three units at the 42-story Tiara Condominium in West Palm Beach, Fla., filed the 51-page complaint on Jan. 3 in Florida’s 15th Judicial Circuit Court for Palm Beach County. Kas seeks to represent owners of the Tiara’s 320 units who have been similarly displaced due to damages sustained during Hurricanes Frances and Jeanne.

Putative class members have been subjected to special assessments relating to reconstruction and renovation costs, and they oppose the Tiara’s board of directors’ reconstruction management and agreements with Southern Construction Services Inc., Kas states.

Causes of action against the volunteer board include breach of fiduciary duty, demand for financial audit, appointment of receiver, money damages, declaratory judgment and temporary injunction.

Kas contends that the present board “has inefficiently squandered the association’s revenue, has failed to account for same, has failed to adequately report how the association’s 2004 collected revenue and insurance proceeds have been allocated, has used revenue collected to further self-serving causes that unjustly enrich the board members, has shown unusual favoritism [by offering no-bid contracts to] Southern, has demonstrated an inability to complete the restoration project, has suggested that the association is or soon will be insolvent, and has suggested bankruptcy as an alternative.”

Since the September 2004 hurricanes, the Tiara has remained uninhabitable, Kas says, adding that many residents either directly lost or have still not gained access to personal property because of the board’s decision to allow Southern to move all units’ contents to a warehouse.

Kas states that reconstruction costs, prior to Hurricane Wilma’s causing further damage to the Tiara in October, were estimated at $120 million, which included $30 million already spent to dry out the building over nine months following Hurricane Jeanne. Kas says that the construction industry’s “dry out period” standard is 10-20 days, as water-damaged components that cannot be dried out within that period require replacement. He adds that much of what the board paid Southern to dry was ultimately removed and destroyed.

Kas says that Southern’s failure to establish a fixed completion date for reconstruction precluded several residents from obtaining financing and has forced them to sell their units at a loss.

Approximately 70 more units are expected to be subjected to foreclosure proceedings, while other residents have sustained liens against their units, Kas states.

Kas alleges that the board has exhausted its financial resources, including $50 million in insurance proceeds, yet remains indebted to Southern for at least $25 million. A temporary injunction is sought to prevent the board from enforcing a special assessment of $70 million approved by the board on Aug. 24, to continue the restoration of hurricane damages.

The board, in a lawsuit filed in August against Citizens Property Insurance Corp., blames the Tiara’s money woes on Florida’s insurer of last resort, claiming that Citizens owes the condominium $100 million in claims for Frances and Jeanne damages.

The condo association’s insurance policy with Citizens allegedly covered the building for nearly $50 million, subject to a $1.5 million deductible. The association contends that the two hurricanes should count as separate occurrences, and that the association understood it would pay two $1.5 million deductibles.

While Citizens had issued payments for the first $50 million occurrence by July 28, the insurer has reportedly refused to pay the additional $50 million claim, asserting that once the building sustained one total loss, it could not suffer another. Even if the condo association prevails in its currently pending lawsuit against Citizens, Tiara residents would still be saddled with $20 million in repairs, an amount Kas contends is unreasonably high due in large part to the board’s negligent hiring and dealings with Southern.

Kas alleges that the board has been overcharged by Southern and is being taken advantage of, as evidenced by excessive unused or underused rental equipment and wasteful remediation. Kas also contends that the Tiara building could be rebuilt from the ground up for just $70 million, as opposed to the estimated $120 million required for repairs.

William “Chip” Merlin Jr. of the Merlin Law Group in Tampa, Fla., represents Tiara Condominium Association Inc. in its lawsuit against Citizens.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com

Kas Complaint Ref# CAT-0602-03

Sabal Trail Pipeline Hearings

In November 2015, William R. Wohlsifer, PA, took on big fossil fuel and represented WWALS Watershed Coalition to prevent the issuance of an  Environmental Resource Permit and Easement on Sovereign Submerged Lands for a natural gas pipeline that would stretch half the length of Florida. This pipeline would be bigger than any pipeline previously permitted and would traverse geologically unstable lands, leading to sinkhole formation, erosion, and water contamination.

At the three-day hearing, Billy defended their client’s challenge to the pipeline against the Department of Environmental Protection and Sabal Trail Transmission, LLC.  Sabal Trail Transmission was represented by the firm Hopping Green & Sams, one of the largest environmental law firms in Florida. Billy questioned over 30 witnesses and were determined to establishing standing for their non-profit client, and to show that Sabal Trail did not provide the reasonable assurances necessary to show that a permit for this pipeline would be in the best interest of Floridian’s and the land, air and water that they rely on.

We are presently awaiting the Final Order from the Division to be issued on December 6, 2015. In the meantime, we are preparing in the event that this case goes to appeal to the First District Court of Appeal.

For more information about the case please visit the following links:






Tally Talks

Billy on Clearvoter on Tally talks

Billy discussing Bitcoin, digital technology, and Clearvoter on Tallahassee Talks with Brien Sorne – 93.3FM Freedom Radio, Tallahassee, FL


Fast forward to 14:12, for anyone who wants to here Bill Wohlsifer’s Radio Interview that aired on June 30th. Guaranteed to keep you awake if you have any interest in debt collection, bankruptcy, or Bitcoin.

Big Pharma & Kratom

Big Pharma’s BFF Hillary Clinton scored big favor with her financial backers by incorporating stealth product placement technique into the in the January 17, 2016 Democrat Campaign Debate, when she mentioned placing Narcan in the hands of all first responders. Her fans applauded even though they do not know what Narcan is. What started out as a product for a limited segment of trained first responders, e.g., paramedics, Narcan is on a path we all saw before toward mass marketing and production. Two months ago the FDA approved a nasal spray version of Narcan. IMO it will not be long before it is diluted and available by Rx and backed by mega-TV ad campaigns, followed by an over-the-counter version in 10 years.

Because of the market potential for Zubsolv, Subutex, and Suboxone, and products containing Naloxone, such as Narcan, a safe natural herbal remedy commonly referred to as Kratom (Mitragyna speciosa; indigenous to the rainforests of Southeast Asia) in several U.S. cities and states, including my home state of Florida. This is IMO, only; no hard proof is available to me to, but the facts speak for themselves. Kratom is as gentle as coffee and tea, Hillary Clinton is not.

That is why I am proud to be a non-partisan representative of Kratom importers, distributors, and users as a lobbyist before our state legislature, and as an attorney advocate before our federal agencies and the court. (There, I can play the product placement game, too.)

Kratom: The Sober Nightlife Choice of Many

Article written by Matt Wright and posted earlier today here.

It is a bright, sunny, day in Florida. All across the state people are enjoying the oddly perfect January weather. The people who have been living in the state for a while sit around in jeans and light jackets, while the tourists and snowbirds lounge around in shorts and t-shirts. The bars bustle with fans of the Patriots and the Chiefs as the two teams battle it out to find their way into the AFC Championship game. As the beers pour faster and faster, the energy in the bars grows more rabid, and soon two perfect strangers are yelling at each other about whether or not New England cheated, or whether or not Andy Reid is a coach who is capable of coaching a winning team. As the exchange grows more heated the wearied bartender tells them to leave, a recommendation the two angry, drunk, patrons refuse to comply with, and suddenly the local police have arrived in order to hand out trespass orders to the two, usually mild-mannered, citizens who have now embarrassed their friends and family. …

EPA stepped back, while opposition ramps up against Sabal Trail fracked methane pipeline

This PR was originally posted on 12/18/2015 and can be found here


EPA stepped back, while opposition ramps up against Sabal Trail fracked methane pipeline

Hahira and Albany, Georgia, December 18, 2015— (PDF) Mysteriously contradicting a substantive October letter from U.S. Environmental Protection Agency (EPA) Region 4 in Atlanta, a different EPA branch last Friday sent a brief and sketchy letter to the U.S. Army Corps of Engineers uncritically accepting what Sabal Trail’s attorney’s told it, even as multiple environmental and landowner organizations filed objections with the Corps and multiple state agencies against that invading natural gas pipeline.

“I smell a skunk,” said Frank Jackalone, senior organizing manager, Sierra Club of Florida.

Tim Carroll, Valdosta City Council member, said, “I don’t understand how EPA and FERC can say there will not be a negative impact on our environment, aquifer, streams and rivers. A number of experts testified and spoke up saying the likelihood is very high that there could be damage to the aquifer and the environment. Why would we want to allow this to happen, to run the risk of seriously degrading one of the best water resources in the world.,” Valdosta, Moultrie, and Albany, the three biggest cities along the pipeline path in Georgia, all passed resolutions against Sabal Trail, as did the counties of Terrell, Dougherty, Colquitt, Brooks, and Lowndes, in Georgia, and Hamilton and Suwannee Counties in Florida.

“The one government agency actually defending our drinking in the Floridan Aquifer and the many rivers in Georgia and Florida just stifled itself,” said John S. Quarterman, President of WWALS Watershed Coalition (WWALS). WWALS advocates for the Withlacoochee River and Okapilco Creek in south Georgia and the upper Suwannee River in north Florida, all of which Sabal Trail proposed to drill under.

Jackalone added, “This sudden, 180-degree reversal raises the question of whether the pipeline’s powerful investors pulled political strings to get EPA to back away from the objections it raised a few months ago in a letter to the Federal Energy Regulatory Commission.”

That same Friday, December 11th, WWALS filed four pages of opposition with the Corps, and the Corps got a 38-page letter from Atlanta environmental law firm Greenlaw, representing the Sierra Club, the Chattahoochee Riverkeeper, the Flint Riverkeeper, the Kiokee-Flint Group, Environment Florida, Our Santa Fe River Inc., Earth Ethics, Inc., Gulf Restoration Network, and the Florida Clean Water Network, incorporating by reference all previous comments or information submitted by any of those organizations or by WWALS.

Also that Friday, Judge Bram D.E. Canter ruled for Sabal Trail and the Florida Department of Environmental Protection (FDEP) in a case WWALS brought to stop FDEP from issuing a permit for Sabal Trail to drill under the Suwannee and Santa Fe Rivers and the Suwannee River State Park. Florida law says those rivers are supposed to receive higher protection as Outstanding Florida Waters, as are state lands, as WWALS pointed out in a three-day hearing.

“I’m not sure if they read the transcript or what happened,” said Leighanne Boone, WWALS co-counsel along with William R. Wohlsifer of Tallahassee, Florida. “But I definitely felt we showed expert testimony of irreversible impacts.” Boone and Wohlsifer are already working up exceptions to file to the judge’s Order, and the WWALS board is contemplating its options for appeal.

Meanwhile in Georgia, many of the same organizations are opposing Sabal Trail’s application for an air quality permit for a compressor station in Albany from the Georgia Environmental Protection Division, and provisional easements for drilling under Georgia rivers that the Georgia Department of Natural Resources board voted in September.

EPA’s about-face also happened shortly before FERC today published its Final Environmental Impact Statement (FEIS) about Sabal Trail and its two companion pipelines.

“I hope Georgia will protect the aquifer and the rivers since the feds don’t seem to be able to get their act together,” said Gordon Rogers, Flint Riverkeeper, “We don’t call it the Sinkhole Trail Pipeline for nothing; it doesn’t belong in the Floridan Aquifer.”

“We see no reason to risk local citizens’ property, or taxes, or their drinking water, or any part of the ecology for the profit of a company from some other state,” said Quarterman, “Georgia is already the fastest-growing U.S. solar market, and solar power will bring far more jobs to Georgia and Florida than any pipeline ever would, with no need for eminent domain, no risk to our water, and far faster, cheaper, and safer.”


WWALS Watershed Coalition (WWALS), a Waterkeeper® Alliance Affiliate and a non-profit 501(c)(3) corporation established in 2012, advocates for conservation and stewardship of the Withlacoochee, Willacoochee, Alapaha, Little, and Upper Suwannee River watersheds in south Georgia and north Florida through awareness, environmental monitoring, and citizen activities. All the documents referenced are linked into this WWALS web page:http://www.wwals.net/issues/stt/


John S. Quarterman, President
WWALS Watershed Coalition, Inc.
PO Box 88, Hahira, GA 31632

Gordon Rogers
Flint Riverkeeper
(229) 435-2241
211 North Jefferson Street, Suite 8
Albany, GA. 31701


Scott administration helped keep scathing EPA pipeline report out of legal challenge

This article was originally posted this story on 11/25/2015 here.

TALLAHASSEE — Gov. Rick Scott’s top environmental agency helped block a scathing federal report outlining environmental concerns from being submitted as part of a challenge to a controversial natural gas pipeline that would run across some of Florida’s most “environmentally sensitive areas.”

The Sabal Trail pipeline, a joint venture of Spectra Energy, Duke Energy and Florida Power & Light Co.’s parent company, would extend 515 miles from central Alabama to Osceola County. The project, which covers more than 260 miles in Florida, faces a legal challenge to a state permit in Florida from an environmental group named the WWALS Watershed Coalition.

On Oct. 26, the U.S. Environmental Protection Agency wrote to the Federal Energy Regulatory Commission, saying it had “very significant concerns” about the process of choosing a route because of the threat of pollution to the Floridan Aquifer and the impact on conservation areas.

Four days later, the WWALS Watershed Coalition asked Administrative Law Judge Bram D.E. Canter to take judicial notice of the EPA objections.

But the Florida Department of Environmental Protection joined Sabal Trail Transmission, LLC in objecting, and Canter refused the request.

A spokeswoman for the DEP, which is overseen by Scott’s office, was twice asked whether the permit should be re-evaluated in light of the EPA comments. Each time, she answered with a statement that neither acknowledged nor addressed the EPA concerns.

John Quarterman, president of the WWALS Watershed Coalition, told POLITICO Florida that the permit never should not be issued because of concerns about the project. WWALS refers to the Withlacoochee, Willacoochee, Alapaha, Little, and Upper Suwannee River watersheds in south Georgia and north Florida.

“It would be nice if they [DEP officials] decided on their own to not issue the permit,” Quaterman said. “I can’t say I’d be exactly holding my breath for that to happen.”

In 2009, Florida Power & Light Co. petitioned the Florida Public Service Commission to build a 280-mile natural gas pipeline to serve its Cape Canaveral and Riviera Beach electric generating units. The PSC denied the petition because it said it was not shown to be the most cost effective alternative, but the commission also said the pipeline was needed to meet future energy needs.

The Sabal Trail pipeline project was announced in 2013 as a joint venture to serve Florida Power & Light Co. and Duke Energy of Florida plants beginning in May 2017. Later that year, the PSC approved a request by Florida Power & Light to recover costs for the project from its customers.

In July, the Department of Environmental Protection said it intended to issue a state environmental resource permit for the project, which will affect 408 acres of wetlands. In August, the state Acquisition and Restoration Council granted approval for the pipeline to cross nearly 100 acres of state parks, state forests and state recreation trails. In some cases the pipeline will be drilled under rivers.

Meanwhile, permit applications are pending with the Federal Energy Regulatory Commission for the pipeline and with the Army Corps of Engineers for wetlands and waterway impacts.

A hearing on the state permit challenge was held in mid-October, before the EPA issued its comment letter to the Federal Energy Regulatory Commission.

At the same time, political opposition to the pipeline was building in Georgia. On Oct. 23, four Georgia congressmen sent a letter to the Federal Energy Regulatory Commission raising concerns about the threat of health and safety risks to disadvantaged black communities where the pipeline crosses.

The commission is obligated to consider environmental justice issues involving the pipeline, wrote Democratic U.S. Reps. Sanford D. Bishop Jr., John Lewis, Henry C. “Hank” Johnson Jr. and David Scott.

“Apart from the above legal considerations, common sense would suggest that a pipeline carrying a highly flammable substance and a massive polluting industrial facility should not be placed in any residential community, much less an environmental justice community,” they wrote. They also raised concerns about the region’s vulnerable geology of karst limestone that resemble Swiss cheese with its porous rock and watery passages.

In the Oct. 26 EPA comment letter, Christopher A. Militscher, chief of the agency’s NEPA Program Office, raised concerns about threats in Florida to springs and the Floridan Aquifer and “sensitive and vulnerable” karst geology as well as environmental justice communities. And the project, he noted, will affect 177 acres of numerous conservation areas in the three states, including Florida’s Green Swamp.

“The EPA recommends that the FERC re-evaluate its environmental alternatives analysis for routes that avoid environmentally sensitive areas including jurisdictional wetlands, conservation areas, (environmental justice) communities and sensitive karst terrain areas prior to proceeding with a final EIS (environmental impact statement),” Militscher wrote.

And an attached report with the letter raised numerous concerns about how the pipeline could be damaged by sinkhole collapse and cause contamination of springs and waterways. The report also noted that gas pipeline explosions in other states had left behind huge craters.

“The creation of craters in a sensitive, vulnerable aquifer such as the Floridan Aquifer are a problem to be avoided,” the EPA report said. “FERC provides no assurances with its route selection or karst mitigation that crater creation will be avoided.”

Four days later, the WWALS Watershed Coalition, in its legal challenge to the DEP permit, formally asked Canter to take “judicial notice” of the document in the challenge to the state permit. The group said the flow of the Suwannee River and other waterways could be affected by the pipeline.

“This is significant new evidence that was not available at the time of the expedited hearing,” the motion said.

On Nov. 2, Sabal Trail Transmission filed a motion arguing that the opponents had an opportunity to present facts during an earlier hearing and should not be allowed to retry the case. DEP joined Sabal Trail Transmission LLC in opposition to the opponents’ motion.

The EPA comment letter “is not an excuse to untimely request a second bite at the litigation apple,” the company wrote in its motion.

In denying the environmental group’s request, Canter said that taking notice of the EPA concerns would not have established their validity.

“The fact that EPA expressed concerns to FERC is not material in this state administrative proceeding,” he wrote on Nov. 9.

And Sabal Trail Transmission LLC told the Federal Energy Regulatory Commission that many of the issues raised by the U. S. Environmental Protection Agency don’t apply to the limited commission proceedings under the federal Natural Gas Act or EPA review under the National Environmental Policy Act.

The DEP spokeswoman who twice was asked whether the state, as a result of the EPA letter, should continue moving forward on the permit responded only that the operation had been reviewed to ensure that the pipeline operation protects the environment along with human health and safety.

“The department’s (DEP) intent to issue was based on the determination that the application met all requirements under Florida law, and in this case, DEP determined the applicant demonstrated reasonable assurance that the state’s wetlands and water resources would be protected,” spokeswoman Lori Elliott said.

A Sabal Transmission LLC spokeswoman said the company now is coordinating concerns with state and federal agencies and is not considering changing the proposed project or route.

Spokeswoman Andrea Grover also pointed to the company’s Nov. 9 response to the Federal Energy Regulatory Commission that addresses the EPA letter and other comments, while adding, “Sabal Trail remains on target to begin construction (in the) second quarter next year.”

In its response to the commission, Sabal Trail argued that a key point for the commission to consider is whether there is a market need for the project. Sabal Trail has said the project is needed to improve reliability for the fdelivery of clean-burning natural gas to power plants.

The National Environmental Policy Act, under which the federal EPA was reviewing the project, allows the commission and the Army Corps of Engineers to consider environmental impacts but not redefine the underlying purpose and need for the project, Lisa A. Connolly, general manager of rates and certificates, wrote in the response.

Bill On Tennessee Talks with Brien Soren 11/8/2015

Tallahassee attorney Bill Wohlsifer will talk with Brien about the ongoing effort to establish a Florida constitutional amendment legalizing the use of marijuana. As a board member of Sensible Florida, Bill will bring us up to date on the latest activities related to this effort. Listen live on the radio at a special day and time this Sunday, November 8th on Tallahassee’s Freedom93 WVFT 93.3FM from noon to 2pm. Or listen live on the web: http://www.freedom93fm.com/. Can’t listen live? No problem! Go to: http://www.live365.com/stations/alcomentertainment Saturday night at 9:30pm. Available as a podcast too. Go to http://www.tallahasseetalks.com/listen/pod/.


November 7th 2015 – Bill Wohlsifer, local attorney and Skip Foster, Tallahassee Democrat Publisher

Understanding the “Regulate Marijuana Like Alcohol” Ballot Initiative Petition promoted by Regulate Florida.

Regulate Florida is seeking signatures on its constitutional ballot initiative titled, “Regulate Marijuana in a Manner Similar to Alcohol to Establish Age, Licensing, and Other Restrictions.” The 4-page petition seeks to end cannabis prohibition in Florida by enumerating certain rights and licensable privileges that the state must recognize. When reading Regulate Florida’s petition try to see its overall concept as web of negative rights relating to cannabis. As co-author of the petition I will be glad to respond here to any questions, comments or concerns about Regulate Florida’s petition’s text – whether pro, con, or indifferent. Please enter your comment or response below.

What is Wrong with the Ballot Initiative Petition Sponsored by Floridians For Freedom?

Year 2016 is the year of constitutional ballot initiative movements in Florida. I suspect the heightened participation in this citizen lawmaking option is the result of the unprecedented public awareness, fueled by high profile attorney John Morgan of what was commonly known as “Amendment 2” in 2014 – a proposed constitutional amendment to legalize access to medical marijuana for children and adults seeking treatment for debilitating medical conditions.

Despite Attorney Morgan’s vast resources of competent legal counsel on staff within his law firm, he engaged the legal services of the prominent constitutional law professor and Dean Emeritus of the Levin College of Law at the University of Florida, Gainesville, Director of the Center for Governmental Responsibility, former House Speaker, Jon L. Mills, Esquire, to draft the petition that would become known as Amendment 2 in 2014’s general election.

In 2013 Professor Mills “worked on ballot wording for months so it [would] pass Florida Supreme Court scrutiny,” said Ben Pollara, Director of United for Care, the organization that managed the rollout of Amendment 2 in 2014, and continues to do so for the 2016 general election. After a few minor revisions, the ballot is now entitled Ballot Initiative 15-01, sponsored by People United for Medical Marijuana, titled, “Use of Marijuana for Debilitating Medical Conditions.”

Notwithstanding the diligence and brilliance of Professor Mills, Amendment 2 barely passed Florida Supreme Court review after a full day’s hearing of legal arguments presented by United for Care and trial counsel for Florida Attorney General Pam Bondi, in November 2013. By a narrow 4-3 ruling issued on January 27, 2014, the Florida Supreme Court rendered a 44-page majority opinion, plus concurring and dissenting opinions (84-pages overall) on its review of Professor Mills’ legal writing. Eighty-four pages! Eighty-four pages expressed by our state’s most learned legal minds. This stuff is not easy, despite the two-bit rhetoric of loudmouth critics who armchair-quarterback the legal profession.

Aside from People United for Medical Marijuana’s renewed (and so far very successful) second attempt to create access to cannabinoid therapy for Floridians of all ages who endure debilitating medical conditions, there are several new ballot initiatives aiming to get on the 2016 general election ballot. Each seek to allow access to marijuana for adults age 21 and up, without requirement to show a medical need. Two ballot petition initiatives in particular are competing for the same two limited resources: financial backing and boots on the ground to gather signatures.

Rather than unite their efforts to reach a common goal, likeminded people embarked on two different paths. One presents a comprehensive plan introduced by “Regulate Florida,” a team of 7 professionals behind Sensible Florida, Inc.’s “Regulate Marijuana Like Alcohol” ballot initiative. The other initiative titled, the “Right of Adults to Cannabis,” is sponsored by a political action committee called Floridians For Freedom, associated with a longtime marijuana advocacy group, Florida Cannabis Action Network; chair, Jodi James. While the Regulate Florida ballot initiative is written on 4 pages in an 8.5 font, the “Right of Adults to Cannabis” ballot initiative is barely written; it is a mere 4 sentences long.

“Regulate Marijuana Like Alcohol” creates a rock solid plan that forces the legislature to act, does not violate the strict rules applicable to constitutional amendment language, creates minimum guarantees to access and possession, establishes 4 types of commercial licensing, and permits indoor home growing of six plants per adult household member, as of right now. The legislature can increase these mandates, but not go below them.

Regulate Florida modeled its initiative petition after Colorado’s Amendment 64. The success of Colorado’s Amendment 64 resulted in unprecedented reductions in crime, reduction in arrests, reduction in marijuana use by minors, created over 1,000 jobs, and generated $40 (forty) million in recreational marijuana taxes in 2014. Based on Florida’s demographics, those results have the potential to be tripled here.

The Florida Attorney General is charged with the duty under section 16.061, Florida Statutes, to petition the Supreme Court for an advisory opinion regarding the compliance of the text of the proposed amendment or revision with s. 3, Art. XI of the State Constitution and the compliance of the proposed ballot title and substance with s. 101.161, if the petition obtains 10% of the needed number of signatures. In so doing, the Attorney General will articulate a legal argument regarding any specific factual issues that the Attorney General believes would require a judicial determination. As a former and potential future candidate for the office of Attorney General, I publically express my legal opinions from time to time, because I think that is expected of persons who hold or have held themselves out for public office. The expression of relevant opinions provides a record upon which the qualifications of such citizen can be judged. I express my opinion below.

The undersigned blogger cautions all who consider donating time or money to the “Right of Adults to Cannabis” ballot initiative that while its brevity generates a feel-good moment, in this blogger’s opinion it stands no chance of surviving Florida Supreme Court scrutiny. At the end of the day the petition sponsored by Floridians For Freedom will not be on the ballot because it is a fatally flawed document. The undersigned blogger further cautions all who read the following opinion, that it is somewhat biased, as its author is also the primary author of the ballot initiative being advanced by Regulate Florida.

What is wrong with the ballot initiative petition sponsored by Floridians For Freedom (FFF)?


Part II: ARTICLE AND SECTION BEING CREATED OR AMENDED: “Article I, Section 28” Article I of the Florida Constitution preserves our most sacred rights as a free people. Article I enumerates the “Declaration of Rights” that “We, the people of the State of Florida, being grateful to Almighty God” … “do ordain and establish.” Among these rights are those of the highest order of self-preservation and manner of governance. For example, the titles of the 27 rights protected in Article I are Political Power, Basic Rights, Religious Freedom, Freedom of Speech and Press, Right to Assemble, Right to Work, Military Power, Right to Bear Arms, Due Process, Prohibited Laws, Imprisonment for Debt, Searches and Seizures, Habeas Corpus, Bail, Prosecution for Crime; Offenses Committed by Children, Rights of Accused, Excessive Punishments, Administrative Penalties, Costs, Treason, Trial by Jury, Right of Privacy, Access to Public Records and Meetings, Taxpayers’ Bill of Rights, Claimant’s Right to Fair Compensation, and Marriage Defined1 . The mere titles of these sections of Article I speak for themselves as being Floridians’ inalienable rights.

FFF’s proposed “Right of Adults to Cannabis” is not of the same class as the other Article I enumerated rights and therefore does not belong in Article I. Floridians do not have a constitutional right to grow corn, soybeans, or tomatoes; nor to harvest citrus; nor raise tropical plants. Floridians do not have an inalienable right to cultivate any crop, nor to possess or use any product. Cannabis is no exception to this basic fact.

The Right of Adults to Cannabis does not belong in Article I, and such placement will reflect adversely when interpreting the intent of the drafter of FFF’s proposed amendment. For this improper designation alone, it may fail Supreme Court review.


The First Paragraph: “All people in the State of Florida twenty-one years of age and older shall have the right under state laws to possession, use, and cultivation of cannabis. This right shall not be infringed except that the transfer of cannabis by purchase or sale may be regulated as necessary to ensure health and safety.”

The Second Paragraph: “‘Cannabis’ in this section is defined as all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof.”

The Third Paragraph: “The provisions of this section are severable and if any clause or sentence of this measure, or an application thereof, is adjudged invalid by a court of competent jurisdiction, other provisions shall continue to be in effect to the fullest extent possible.” The Third Paragraph presents a boilerplate severability clause. It is proper to include such and this one reads well. However, it must be clearly understood that this severance would only apply after the proposed amendment becomes law. The text of the ballot initiative cannot be cured by severance. Any change to an approved ballot initiative would result in voiding all votes obtained prior to the change and starting the petition initiation process over.

It informs the voters about marijuana for adult use, but does not disclose its hidden agenda to create an industrial hemp industry. Our case law on petition initiatives refers to this as “hiding the ball.”

It creates a right to use cannabis, but fails to define “use.” This will result in denial under the constitutional review doctrine known as “void for vagueness.”

It fails to disclose the collateral effects it would have on other aspects of Florida law. Indeed, it completely fails to mention what affect the amendment would have on any existing law whatsoever, resulting in an absolute constitutional bar against medicinal use of cannabis by persons under 21 (twenty-one) years of age.

It commingles multiple subjects, namely: (1) legalizing human consumption of cannabis; (2) creating an industrial hemp industry; and (3) nullifying current laws that allow medicinal use of cannabis by minors under physician care, in violation of the single-subject requirement contained in article XI, Section 3.

It further violates the single-subject rule in that the following statement is facially overbroad: “All people in the State of Florida 21 (twenty-one) years of age and older shall have the right under state laws to possession, use, and cultivation of cannabis.” When such over breadth exists, the single-subject rule is deemed to be violated as a matter of law.

It is facially ambiguous in that it permits possession and use, but does not permit sale and purchase. This violates the requirement that the substance of a public measure be printed in clear and unambiguous language under FS 101.161(1).

Its regulation provision is non-sequitur in that it merely asks the legislature to regulate cannabis, but they already do so. We have a low-THC law, a university research law, and a law allowing synthetic cannabis in pill-form called Marinol.

It does not give a start date or provide any implementation mechanism.

It amends Article I (Declaration of Rights) but is not of the same class as our other Article I enumerated rights. Article I preserves the highest order of self-preservation and manner of governance (e.g., due process, treason, military power, trial by jury). Floridians do not have an inalienable right to cultivate any crop, nor to possess or use any product. Cannabis is no exception to this basic fact.

It requires the legislature to regulate health and safety, but not the third element of the general welfare clause, i.e., to legislate for the well-being of the people (known as police power) resulting in a restrictive application of lawmaking for the public good, adverse to the federal general welfare clause. (Note: state constitutions must comply with the federal constitution.)

The Single-Subject Rule requirement contained in Article XI, section 3 of the Florida Constitution states that any . . . revision or amendment shall embrace but one subject and matter directly connected therewith. Ray v. Mortham, 742 So. 2d 1276, 1277 (Fla. 1999). The Ray court recognized that what may appear as a single-subject to one voter may appear as more than one to another. Id. at 1277. “‘Oneness,’ like beauty, is in the eye of the beholder.” Id. The Ray court concludes that “[t]he obvious and unmistakable purpose underlying Article XI, section 3, is to reserve to the voters the prerogative to separately decide discrete issues. On how to apply the single-subject rule.

“Therefore, one way of deciding the question before us today is to determine whether the proposed initiative contains more than one separate issue about which voters might differ. In other words, is there at least one discrete, severable portion of the ballot language that reasonable voters might reject if given the choice, even while accepting the remainder of the ballot language? If the answer is yes, then this Court must find that the initiative contains more than one subject and lacks ‘oneness.’” Accord Evans v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984) (quoted in Ray v. Mortham, 742 So. 2d at 1288).

“The policy underlying this requirement is self-evident. Where reasonable voters may differ, then the voters should not be placed in the position of accepting an all-or-nothing grab-bag initiative. Each discrete issue should be placed separately on the ballot so that voters can exercise their franchise in a meaningful way. No person should be required to vote for something repugnant simply because it is attached to something desirable. Nor should any interest group be given the power to ‘sweeten the pot’ by obscuring a divisive issue behind separate matters about which there is widespread agreement.” Accord Evans v. Firestone (quoted in Ray v. Mortham, 742 So. 2d at 1288).

The Florida Supreme Court will readily recognize the potential voter confusion as to what the “chief purpose” of FFF’s proposed amendment is, as it is three-fold2 . By letting the people grow and introduce cannabis onto and into the human body, they are also giving carte blanche to cultivate hemp for industrial application. As a practical matter I know that some Florida voters would approve the advent of a hemp industry but not vote in favor of legalizing pot. Vice-versa, some Florida voters understand the need to regulate adult access to cannabis to, among other things, lower the incineration rate. But that same voter will ask him or herself, “When was the last time a Floridian went to jail for growing industrial hemp?” If at all, it was probably shortly after WW II. These voters would not see hemp as a pressing constitutional issue and might vote against that oneness of it, while other voters would vote for or against the oneness of its human consumption but against the advent of an industrial hemp industry. FFF managed to violate the single-subject rule with four sentences (under 200 words). Regulate Florida managed to avoid violating the single-subject rule despite its use of four pages containing 4,251 words.

Ballot Language must be Clear and Unambiguous; must not “hide the ball”. Section 101.161(1), Fla. Stat. (2012) requires that the substance of a public measure be printed in clear and unambiguous language on the ballot. The purpose of this requirement is to provide the voter with fair notice of the content of the proposed measure so that he or she will not be misled as to its purpose and may intelligently cast his or her vote. Matheson v. Miami-Dade Cnty., 40 Fla. L. Weekly D1267 (Fla. 3d DCA May 27, 2015). In Matheson, the appellant cites Armstrong v. Harris,  773 So. 2d 7 (Fla. 2000), in support of his position that the ballot language is misleading by “hiding the ball” and “flying under false colors.”

The Florida Supreme Court disagreed and stated that the ballot in Wadhams had the same problem as the ballot in Askew. Wadhams, 567 So. 2d at 416. The Court stated that the “chief purpose” of the referendum was not communicated to the voters:

By failing to contain an “explanatory statement” of the amendment, however, the ballot failed to inform the public that there was presently no restriction on meetings and that the “chief purpose” of the amendment was to curtail the Charter Review Board’s right to meet. Similar to the ballot summary at issue in Askew, the present ballot “is deceptive, because although it contains an absolutely true statement, it omits to state a material fact necessary in order to make the statement made not misleading.” Askew, 421 So. 2d at 158 (Ehrlich, J., concurring). The only way a voter would know what changes were being effected by an affirmative vote on the ballot would be to know what section 2.11 of the county charter provided prior to amendment. Asthen Judge Grimes noted in his dissent below: “[T]here was nothing on the ballot to inform the voter of the change to be accomplished by the amendment, which is the very reason why section 101.161(1) requires an explanatory statement.” 501 So. 2d at 124 (Grimes, J., dissenting). See also Kobrin v. Leahy, 528 So. 2d 392 (Fla. 3d DCA)(placement on ballot of proposition to provide that the board of county commissioners shall be the governing board of the fire and rescue service district, but making no mention of the elimination of the existing governing body of the Fire and Rescue District, was misleading to voters and violated section 101.161(1), especially in light of simultaneously conducted election of persons to the existing governing board), review denied, 523 So. 2d 577 (Fla. 1988).

Id. at 416-17 (emphasis in original).

Again, the ballot question in Wadhams was misleading because it failed to include the explanatory statement required by section 101.161(1), Florida Statutes, and thus failed to inform the voters of the “chief purpose” of the measure. FFF’s ballot question suffers the same defect. It purports to inform the voters about marijuana for adult use, but fails to define use. And by hiding the hemp ball, the proposed amendment fails to inform voters of its chief purpose.

In Wadhams v. Board of County Commissioners, 567 So. 2d 414 (Fla. 1990), the Board of County Commissioners of Sarasota County (the “Commissioners”) sought to amend a provision of the county charter governing the Charter Review Board (the “Board”), which is charged with reviewing the charter on a regular basis and recommending changes directly to the people. The text of the proposed amendment was printed in full on the ballot and provided inter alia that the Board would meet every four years. The Commissioners, however, neglected to mention on the ballot that the amendment would supersede an existing charter provision that allowed the Board to conduct unlimited meetings-i.e., the proposal was intended to curtail the Board’s right to meet. Armstrong v. Harris, 773 So. 2d 7, 19 (Fla. 2000). Both the trial and district courts approved the amendment; this Court quashed the district court decision. Id.

“Deception of the voting public is intolerable and should not be countenanced.” The purpose of section 101.161(1), Florida Statutes, is to assure that that electorate is advised of the meaning and ramifications of the proposed amendment. Because the ballot at issue failed to comply with . . . 101.161(1) the proposed amendments must be stricken.

Wadhams, 567 So. 2d at 417-18 (emphasis added).

Like the ballot language in Wadhams, the ballot language in the present case is defective for what it does not say: It does not tell voters the “chief purpose” of the amendment. Armstrong v. Harris, 773 So. 2d at 21.

Written by:

Bill Wohlsifer, Esquire
Tallahassee, Florida

1 Marriage defined is likely to be repealed due to subsequent U.S. Supreme Court holdings.

2 Aside from mixing human consumption of cannabis with its industrial uses, the third “chief purpose” of FFF’s proposed amendment is the nullification of medicinal access to cannabis by minors under physician care. This is likely an unintended consequence of the petition’s drafter’s failure to inform the voters of other laws that would be affected by the constitutional prohibition of cannabis use by persons under age 21.

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