Bourassa v. State

• Decision Date: 12 October 1978
• Docket Number: No. 51926,51926
• Citation: 366 So.2d 12
• Parties: Linda BOURASSA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 12

366 So.2d 12

Linda BOURASSA, Appellant, v. STATE of Florida, Appellee.

No. 51926.

Supreme Court of Florida.

Oct. 12, 1978.

Ronald K. Zimmet, Asst. Public Defender, Holly Hill, for appellant.

Robert L. Shevin, Atty. Gen. and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Affirmed. See Hamilton v. State, 366 So.2d 8 (Fla.1978).

ENGLAND, C. J., and BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice, dissenting.

This is a direct appeal from a decision of the County Court of Volusia County which held sections 893.03(1)(c)(10) and 893.13(1)(f), Florida Statutes (1975), which prohibit possession of marijuana, constitutional.

The questions of whether marijuana is healthy or harmful, whether the sale or possession should be legal or decriminalized, or whether it should be used by any individual, are not material to the disposition of this case and should not be considered. Assuming that marijuana is harmful, does the record show that the harmful effects of marijuana are such that it is irrational to classify it with heroin, morphine, LSD, and other hallucinogenic drugs? If so, this is an unreasonable classification and, regardless of the morality concept of some persons, the statute must fall.

The appellant, Ms. Bourassa, was caught attempting to take clothing from a discount store. A policeman arrested her, and when her purse was searched, cannabis was found in it.

Ms. Bourassa was charged with, among other things, possession of under five grams of cannabis, in violation of Section 893.03(1)(c) and Section 893.13(1) (f), Florida Statutes. She filed a motion to dismiss the cannabis charge, alleging that the Florida cannabis statutes violate her right to equal protection as secured by the United States and Florida Constitutions.

The court had an evidentiary hearing on the motion to dismiss. Ms. Bourassa called expert witnesses to testify about the nature of cannabis in comparison with the other substances classified by the statutes. The court, after reviewing the evidence, upheld the statutes finding that the classification of marijuana has a rational basis in fact with opiates, amphetamines, barbiturates and hallucinogens.

Ms. Bourassa's witnesses were three highly qualified doctors who participated in a two-year study in Costa Rica of the effects of heavy (average of nine cigarettes per day), long term (ten years) marijuana use. The study was structured to minimize the effects of alcohol and other drug use as well as to monitor marijuana potency. After several years of study the doctors concluded the subjects' health, family life, work habits, and sociological development were not adversely affected by their marijuana use. Differences between the users and non-users studied, such as higher incidences of venereal disease and criminal activity for users, were attributed to life styles rather than marijuana use and often predated marijuana use. The doctors all said marijuana was not comparable in effect or dangerousness to the other substances listed as controlled in Section 893.03(1), Florida Statutes (1975).

The state's witness, a psychiatrist, said he regularly treated patients, especially young ones, who had problems attributable to marijuana use. He felt there were enough problems in life without legalizing marijuana. All the witnesses agreed marijuana caused euphoria and temporarily mildly affected motor skills.

The judge's order said evidence showed long term use of marijuana was not harmful. But he denied the motion to dismiss because he was not convinced its short term effects were significantly different from those of the drugs with which it is classified.

Florida laws governing the use, regulation, distribution and prohibition of drugs were found in Chapter 893, Florida Statutes (1975). The chapter is titled the Florida Comprehensive Drug Abuse Prevention and Control Act and is quite complex. Section 893.03, Florida Statutes (1975) lists some 131 different substances as controlled. The list is divided into five schedules. Cannabis (Marijuana) and its active ingredient, Tetrahydrocannabinol, are listed in the first schedule along with heroin, morphine, other opiates, amphetamines, lysergic acid diethalamide (LSD) and other hallucinogens. Possession of all controlled substances not lawfully obtained is prohibited by Section 893.13(1)(3), Florida Statutes (1975), and made a third degree felony. The schedule a drug is in does not affect the definition of or the penalty for its unlawful possession. The crime of possession of a controlled substance is reduced to a first degree misdemeanor by Section 893.13(1)(f), Florida Statutes (1975), if the controlled substance is cannabis, if the offense is the possessor's "first offense", and if the possession is not for compensation. Ms. Bourassa was convicted of the crime created by the interaction of these three statutes.

Ms. Bourassa claims marijuana is so radically different from the drugs it is classed with by the statutes that the classification is irrational and therefore denies her the equal protection guaranteed by the 14th amendment to the United States Constitution and Section 2, Article I, of the Florida Constitution. The state argues the classification has not been proved irrational.

Florida and Federal courts have long since agreed a law creating classifications without a rational basis denies equal protection. The Federal "rational basis" test has been articulated in a number of ways. For one test, the Supreme Court has said a statutory discrimination will be upheld if any state of facts may reasonably be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). As another test, the court has said a classification must rest upon a difference having a fair and substantial relation to the law's objective. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). These statements and others running the gamut between them have entertained the minds and pens of legal scholars for years. See, Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn.L.R. 601 (1974).

Florida courts' articulation of the "rational basis" test for determining if Florida's equal protection guarantee has been violated, although varyingly phrased, is most closely analagous to the requirements of Royster Guano Co., supra. Both tests require more than a hypothetical rational basis for a classification. This court has interpreted the Florida Constitution to require a "valid and substantial reason for classifications." Moore v. Thompson, 126 So.2d 543 at 548 (Fla.1961); Accord, Henderson v. Antonacci, 62 So.2d 5 at 9 (Fla.1952). The requirement has also been termed one for "reasonable justification", State ex rel. Gerstein v. Hialeah Race Course, Inc., 245 So.2d 53 at 57 (Fla.1971), or "a just, fair and practical basis" for the classification "based on a real difference which is reasonably related to the subject and purpose of the regulation", Newman v. Carson, 280 So.2d 426 at 429 (Fla.1973). See also, State v. Lee, 356 So.2d 276 (Fla.1978); United Gas Pipe Line Co. v. Bevis, 336 So.2d 560 (Fla.1976); Gammon v. Cobb, 335 So.2d 261 (Fla.1976); O'Donnell v. State, 326 So.2d 4 (Fla.1975); Selby v. Bullock, 287 So.2d 18 (Fla.1974); Pacheco v. Pacheco, 246 So.2d 778 (Fla.1971); McKee v. State, 203 So.2d 321 (Fla.1967); Larson v. Lesser, 106 So.2d 188 (Fla.1958). To determine the rationality of a law the court must look at the purpose the law serves, the facts involved, the impact of the law upon citizens and the relationship between the law and these factors.

The statute challenged in O'Donnell v. State, 326 So.2d 4 (Fla.1975) was analyzed in this manner. There the constitutionality of Florida's law providing at least 30 years imprisonment for kidnapping was challenged as denying equal protection because it classified "passive" kidnappers with "active" ones. O'Donnell was a member of a group which kidnapped someone although he took no active part in the abduction. He claimed classification of himself with the other "active" kidnappers was so irrational he was denied equal protection. Rejecting O'Donnell's claims, the court upheld the statutes. The nature of the crime, society's need to deter the crime, and the undeniable participation of even a "passive" actor in the kidnapping together provided a rational basis for the classification. Likewise in Newman v. Carson, 280 So.2d 426 (Fla.1973), the court looked closely at the facts, the statute's purpose, and their relationship to the classifications made before rejecting a claim that equal protection had been denied. The law challenged in Newman required pawnbrokers and some others to keep certain records of the goods they bought and sold. Only "regular junk dealers" were affected and the law excepted sales of auto parts, household goods and furniture. The court considered the high rate of theft and the practical effect of the law, frustration of the sale of stolen goods and assistance in return of stolen goods, the nature of goods most often stolen and the markets they were disposed of in before determining the statute's classifications had a fair and practical basis and were reasonably related to the law's purpose.

The same standards have been applied to classifications which do not subject citizens to criminal sanctions. In United Gas Pipe Line Co. v. Bevis, 336 So.2d 560 (Fla.1976) the court determined a statute which allowed the Public Service Commission (PSC) to regulate gas sales otherwise totally exempted from PSC regulation upon petition by an affected industrial user was unconstitutional because it did not rationally further the statute's purpose, providing the public utilities at a fair price. The statute denied equal protection because the class benefited was not the public...