Samuel Velez-Ortiz was a corrections officer with the Florida Department of Corrections. In May 2021, the Depart­ment asked Velez-Ortiz to submit to a random drug test. Velez-Ortiz complied. Upon being told that he had tested posi­tive for marijuana, Velez-Ortiz presented his Florida-issued qualifying marijuana patient identification card.

Because the Department had a strict policy against all marijuana use, which included medicinal marijuana, the De­partment notified Velez-Ortiz that it was terminating his employment. Velez-Ortiz requested a hearing and argued that he could not be terminated because he had a constitutional right to use medicinal marijuana when he was not working and that he had never worked while he was impaired. A hearing officer and the Pub­lic Employment Relations Commission found the Department had the authority to terminate Velez-Ortiz.

The Florida Court of Appeals upheld the termination of Velez-Ortiz. The Court found that “the law requires all correctional officers to possess good moral character. To possess good moral charac­ter, a correctional officer cannot engage in any activity that could give rise to a felony conviction even if he is never charged with the offense. These requirements lead us to believe Velez-Ortiz cannot use medicinal marijuana and maintain his certification as a correctional officer even if the right to privacy found Article X, Section 29 of the Florida Constitution extends as far as he contends.

“Federal law makes it a felony for certain ‘prohibited persons’ to possess a firearm. Among the activities that would cause someone to be classified as a prohibited person is the unlawful use of a controlled substance under the Controlled Substances Act. Marijuana is a Schedule I drug under the Controlled Substances Act. Under the Act, Schedule I drugs are deemed to have ‘no medici­nal purpose for treatment in the United States, have a high potential for abuse, and lack acceptable safety measures even when used under proper medical supervision.’

“Therefore, under the Act, there are no valid prescriptions for marijuana. Because marijuana may not be validly prescribed under federal law, mere posses­sion of marijuana is a felony under federal law. Accordingly, the use of marijuana by a person who is in possession of a firearm is unlawful. The law does not require the use of marijuana to be contemporaneous to the possession of a firearm. It requires the unlawful use to have occurred recently enough to indicate that the individual is actively engaged in such conduct or that the person has used the drug for an extended period.

“Because Velez-Ortiz uses medicinal marijuana to treat his posttraumatic stress disorder, he is a regular user of marijuana. 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.

“Because Velez-Ortiz could not per­form an important requirement of the job of corrections officer, training with and using firearms, without being in violation of federal law and causing other agency personnel to be in violation of federal law, his termination was lawful.”

Ortiz v. Department of Corrections, 2023 WL 4101330 (Fla. App. 2023).

This article appears in the August 2023 issue of our monthly newsletter, Public Safety Labor News.

Also in the August 2023 issue:

• Treatment Of Military Leave Violates USERRA
• Union, Not Member, Has Right To Invoke Arbitration
• Honolulu Police Chief Not Entitled To City Representation In Criminal Case
• Florida Court Upholds Termination Of CO For Medical Marijuana Use
• Employee Fails To Rebut Presumption That Firefighter’s Lymphoma Caused By Job
• Pension Board May Have To Hear Claim Of ‘Informal’ Marriage
• Tennessee Civil Service Not Required To Consider Other Employee Misconduct
• Attorney’s Failure To Timely Request Arbitration Bars Officer’s Termination Appeal
• Firefighter’s Loading Bottles Into Cooler An ‘Act Of Duty’
• Fitness-For-Duty Exam Ends Discrimination Claim
• Court Upholds Dying Firefighter’s Marriage To Much Younger Firefighter
• Q & A