Florida court upholds firing of officer for using medical marijuana, cites federal law

TALLAHASSEE, Fla. — In what could be a first-of-its-kind case, a state appeals court Wednesday upheld the firing of a Florida Department of Corrections officer for using medical marijuana, pointing to federal law and a job requirement that he be able to use guns.

A three-judge panel of the 1st District Court rejected arguments by Samuel Velez Ortiz, a former sergeant for the Department of Corrections who was approved by a doctor to use medical marijuana to treat post-traumatic stress disorder related to previous military service, according to documents filed in the case.

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Velez Ortiz failed a random drug test in 2021, ultimately leading to his firing under a Department of Corrections “zero tolerance” policy. He challenged the firing and took the dispute to the 1st District Court of Appeal after the state Public Employees Relations Commission backed the dismissal

READ: Florida Supreme Court hears proposal on 2024 recreational-marijuana ballot initiative

Florida voters in 2016 approved a constitutional amendment that allows the use of medical marijuana.

Wednesday’s ruling by the three-judge panel however pointed to marijuana being illegal under federal law and said Velez Ortiz would be committing a felony by using marijuana and possessing a gun. It said correctional officers, in part, are required to qualify with firearms and be able to be issued guns in situations such as prison riots.

“Because Mr. Velez Ortiz uses medicinal marijuana to treat his post-traumatic stress disorder, he is a regular user of marijuana,” said the ruling, written by Judge Clay Roberts and joined by Judges Stephanie Ray and M. Kemmerly Thomas. “Although he can legally possess and use medicinal marijuana under state law, his use of it is illegal under federal law. Accordingly, he cannot lawfully possess a firearm. Each time he does, he is committing a felony. And each year, he is required to possess a firearm to qualify. As a result, he is violating his requirement to maintain good moral character, which is required to keep his correctional officer certification.”

The case has drawn attention in law-enforcement circles, with the Florida Sheriffs Association and the Florida Police Chiefs Association last year filing briefs in support of the Department of Corrections. Briefs filed by the sheriffs association and Velez Ortiz described the dispute as being a case of “first impression” in Florida — a legal expression indicating the issues had not been considered previously by courts.

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In a brief last year, Velez Ortiz’s attorneys cited the 2016 state constitutional amendment and said the officer did not use medical marijuana while on duty.

“The department attempts to cloud the main issue of this case by ignoring the fact that appellant (Velez Ortiz) was terminated for being a legal medical marijuana user,” the attorneys wrote in the brief. “The department implies that appellant was seeking to use medical marijuana ‘on-site.’ Nothing could be further from the truth. The case before this court is not about having accommodations for the on-site use of medical marijuana; rather, it revolves around discrimination against the appellant for being a medical marijuana user. More importantly, not once did appellant possess or use medical marijuana while on the department’s premises, during work hours, or attended work under the influence of medical marijuana.”

But lawyers for the state wrote in a brief that the Department of Corrections’ drug-free workplace policy and “procedures implementing that policy reveals zero tolerance for employee use of medical marijuana.”

“Velez Ortiz does not dispute that the department may validly prohibit correctional officers from being under the influence of marijuana, including medical marijuana, while on the job, no matter whether the officer ingested that substance on or off-site,” the state’s brief said. “Yet the department has no way to distinguish between an officer who is high on the job because he ingested medical marijuana from a person who ingested the same drug off-site. The result would be untenable risks to public safety. A correctional officer who shows up to work high or experiencing the lingering effects of marijuana — including lack of focus and delayed reaction times — may not trigger alarm bells until the worst-case scenario has already come to pass.”

Velez Ortiz began working for the Department of Corrections in 2013 and had been diagnosed by the U.S. Department of Veterans Affairs with combat-related post-traumatic stress disorder, according to the decision by the Public Employees Relations Commission that supported the firing. He tried prescription drugs to treat PTSD, but they had undesired side effects.

The briefs do not say where Velez Ortiz worked as an officer. But a July 2021 dismissal letter filed in the case was signed by a warden of the department’s Reception and Medical Center in Lake Butler.

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