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Florida Supreme Court won't hear corrections officer's marijuana firing appeal

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A former sergeant for the state Department of Corrections was approved by a doctor to use medical marijuana but failed a random drug test and was fired under a "zero tolerance" policy.

The Florida Supreme Court on Thursday declined to take up an appeal by a former state correctional officer who challenged his firing for using medical marijuana.

The court, as is common, did not explain its decision against hearing the challenge by Samuel Velez Ortiz, a former sergeant for the Florida Department of Corrections. But Thursday’s order effectively let stand a ruling last year by the 1st District Court of Appeal that upheld the firing.

Velez Ortiz 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. He failed a random drug test in 2021, ultimately leading to his firing under a Department of Corrections “zero tolerance” policy.

Velez Ortiz challenged the firing and took the dispute to the 1st District Court of Appeal after the state Public Employees Relations Commission backed the dismissal.

While Florida voters in 2016 approved a constitutional amendment that allows use of medical marijuana, a three-judge panel of the appeals court 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,” the June 21 appeals-court ruling said. “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.”

But in asking the Supreme Court to take up the case, Velez Ortiz’s attorneys raised Second Amendment gun-rights issues and said he did not use medical marijuana during work hours.

“In the case at bar, petitioner (Velez Ortiz) did not possess cannabis on work premises when he would need to possess a weapon, he did not attend work under the influence and therefore would never be in a situation to violate federal law as determined in the lower court’s opinion,” his attorneys said in a September brief. “The opinion of the First District Court of Appeal is contrary to the 2nd Amendment and federal jurisprudence.”

But Attorney General Ashley Moody’s office, representing the Department of Corrections, argued that there was not a legal basis for the Supreme Court to take up the case.

The case drew attention in law-enforcement circles, with the Florida Sheriffs Association and the Florida Police Chiefs Association filing briefs at the appeals court 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.

Jim Saunders is the Executive Editor of The News Service Of Florida.