SAMUEL E. VELEZ ORTIZ

v.

DEPARTMENT OF CORRECTIONS

ROBERTS, J.

This case comes to us on appeal after the Public Employees Relations Commission (PERC) affirmed Samuel Velez Ortiz’s dismissal by his employer, the Florida Department of Corrections (the Department). The Department terminated Mr. Velez Ortiz after he tested positive for marijuana metabolites. Based on the nature of Mr. Velez Ortiz’s job and the law, we affirm.

In May 2021, the Department asked Mr. Velez Ortiz to submit to a random drug test. Mr. Velez Ortiz complied. Upon being told that he had tested positive for marijuana, Mr. Velez Ortiz presented his Florida issued qualifying patient identification card. Because the Department had a strict policy against all marijuana use, which included medicinal marijuana, the Department notified

Mr. Velez Ortiz that it was terminating his employment.¹ Mr. 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. The hearing officer and PERC found the Department had the authority to terminate Mr. Velez Ortiz.

During oral argument, Mr. Velez Ortiz, through counsel, agreed that as a correctional officer, he was required to attend basic recruit training, which included firearms training, qualifying with a firearm once a year, access to firearms, and if it became necessary, such as during a prison riot, issuance of a firearm by the Department. These requirements are codified in Florida law. §§ 943.13(9), 943.13(11), 943.135(1), 943.17(1), Fla. Stat.; Fla. Admin. Code R. 11B-35.0021(1)(a). The law also requires all correctional officers to possess good moral character. § 943.13(4), (7), Fla. Stat. 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. Fla. Admin. Code R. 11B-27.0011(4)(a). These requirements lead us to believe Mr. Velez Ortiz cannot use medicinal marijuana and maintain his certification as a correctional officer even if Article X, section 29 of the Florida Constitution extends as far as he contends.2

Federal law makes it a felony for certain “prohibited persons” to possess a firearm. 18 U.S.C. § 924(a)(8) (2022). Among the activities that would cause someone to be classified as a prohibited

Because Mr. 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 Mr. 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.

AFFIRMED.

RAY and M.K. THOMAS, JJ., concur. _____________________________