Would you buy a license to smoke marijuana?

MELBOURNE, Fla. — In November, Florida voters failed to approve a constitutional amendment legalizing the sale of marijuana for medical reasons.

That defeat hasn’t stopped one Brevard County businessman from opening his own storefront and selling licenses for medical marijuana.

Florida Medical Marijuana Certifications in its published ads cites Florida’s “medical necessity defense,” stating that it will provide people with a license if they have a medical necessity to use cannabis.

The businesses is the work of Ray Cunningham, also known as Mr. 420. Cunningham operates out of a two-room office on the second floor of a building in the heart of historic downtown Melbourne, where his storefront advertising makes no secret about the licenses provided within.

A vet who says he was denied care at the Veteran Administration because of THC in his urine, Cunningham said his business is all about healing people with a drug that he claims is far safer than current prescription drugs.

“See what we do is we work under Florida’s statute, which is the necessity doctrine,” said Cunningham.

The doctrine he cites is rooted in a 1991 case Jenks vs. The State of Florida. In the Jenks case, the defendants, Kenneth and Barbara Jenks, had their conviction of cultivating cannabis and possession of drug paraphernalia overturned by an appellate court after raising the defense of medical necessity.

It is in the defense of medical necessity that a defendant must prove the need to break the law.  In the Jenks case, the District Court of Appeal found, "If the harm which will result from compliance with the law is greater than that which will result from violation of it, he is by virtue of the defense of necessity justified in violating it."

“It’s already a statute on the books,” said Cunningham.  “They do have to bring me a medical narrative from a doctor stating that they have a condition that would qualify them under the necessity act.”

"Either you have a medical necessity defense or you don't," said WFTV legal analyst Bill Sheaffer.  "If the police officer chooses to arrest you, you're going to be arrested. And if the prosecution decides to prosecute, you are going to be prosecuted, and this certificate is not going to stand in the way of either arrest or prosecution."

Sheaffer, who viewed the entire recorded interview with Cunningham, said courts have held a very high burden for the defense of medical necessity.  Sheaffer further adds that a decision to arrest would be made by an officer at the scene, and it would be up to the defendant to assert the defense of medical necessity, a right they would have with or without a medical marijuana card.

But Cunningham takes his operation one step further as he is enrolling clients in a Native American church that uses cannabis as a sacrament.

Cunningham heads the Florida Thunder Oklevueha Native American Church. The church's stated mission is to, "Educate about cannabis and provide access through the state, counties and cities for spiritual and healing plant-based sacraments and provide spiritual services for our members."

“You have to receive a card stating that you are a member of the church, and that gives you the right to use cannabis as sacrament for medicinal purposes under the church,” said Cunningham.

Outside Florida ONAC, which does not require church members to be Native American, has been at the center of several court cases revolving around the use of drugs for spiritual purposes. In 2009, the Utah Supreme Court upheld the church's use of peyote.

However, in 2013, a federal court in Hawaii found against the church’s use of marijuana, finding that the law “was not intended to shield quasi-religious entities created solely to circumvent federal law.”

"This is kind of spurious to us, unusual activity," said Lt. Byron Barnes, of the Melbourne Police Department. "Marijuana possession, cultivation, any of those criminal behaviors, they are illegal."

State law does not allow a person to grow marijuana and federal law bans the transportation of marijuana across state lines. Barnes said despite any promised legal protections offered by the medical marijuana card sold by FMMC, it is still illegal to buy, transport or possess marijuana, a point Cunningham concedes.

“Well, right now, I guess just wherever they have been getting it, because it is all over Florida anyway. You can get it everywhere,” said Cunningham when asked where people should buy their marijuana, insisting that he does not sell it.

Cunningham does, however, sell a kit for growing plants indoors, although he maintains he does not sell marijuana plants or the seeds.

“I can’t legally dispense it out of here, so I don’t know where to tell them to go when they walk out the door here,” said Cunningham.

Cunningham maintains tax licenses with both Brevard County and the City of Melbourne. He said he sells the licenses for $350 and claims to have already sold several.

Melbourne police said they have received no complaints about Cunningham’s business.

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