Florida Ruling A Win For Medical Marijuana Advocates

May 30, 2018

A Florida judge ruled that the state’s ban on smokable forms of cannabis is unconstitutional. The ban on smoking medical marijuana was added by lawmakers into a bill which implemented a constitutional amendment passed by voters in the Sunshine State last year. Known as Amendment 2, “Medical marijuana production, possession, and use,” was approved by 71 percent of Florida voters on November 8, 2016. A spokesman for the Florida Department of Health said the state is expected to appeal the ruling.

In her 22-page decision, Leon County Circuit Judge Karen Grievers said the state’s ban on smoking of medical marijuana “is invalid because it conflicts with the Florida Constitution and prohibits a use of medical marijuana that is permitted by the amendment: smoking in private.”

Gievers ruled that language in the amendment, which bans smoking in public, implies the that private use of smokable medical marijuana is consistent with the amendment, saying, “The amendment addresses the role of each of the three branches of Florida’s government in making sure that those who need marijuana for treatment of their pertinent medical issues are able to have safe access to it, without restriction except that there is no right to smoke in public places.”

Grievers’ ruling reads, “Section 381.986, Florida Statutes (2017) unconstitutionally restricts rights that are protected in the Constitution, and so the statutory prohibition against the use of smokable marijuana permitted by [a] qualifying patient is declared invalid and unenforceable. Qualifying patients have the right to use the form of medical marijuana for treatment of their debilitating medical condition as recommended by their certified physicians, including the use of smokable marijuana in private places.”

The Testimony

Gievers’ decision is the result of a hearing in a lawsuit initiated by Orlando trial lawyer, John Morgan. Morgan largely bankrolled the push for Amendment 2. Cathy Jordan, one of the plaintiffs in the case, who was diagnosed with Lou Gehrig’s disease (ALS) in 1986, testified that smoking joints saved her life.

Former House Speaker Jon Mills, who was instrumental in crafting the amendment and represented the plaintiffs, praised Gievers’ ruling, saying, “I’m delighted that the Constitution has prevailed. This upholds the will of the people, and we’re grateful the justice system worked.” Mills argued that the definition of marijuana in an earlier amendment to the state’s constitution which legalized the drug for use by terminally ill patients implies that smokable marijuana is allowed. The definition of marijuana in Florida criminal law defines marijuana as “all parts of any plant of the genus Cannabis, whether growing or not.”

Lawyers for the state argued that the amendment does not expressly authorize smoking pot and that the ban was instituted to protect the public from the ill effects of smoking.

Reactions To the Ruling

Ben Pollara, campaign manager for the political committee behind Amendment 2, and head of the non-profit organization Florida for Care hailed the judge’s ruling, saying, “This is a huge victory for sick and suffering Floridians, who can now consume their medicine however they choose. And it’s a victory for voters, whose clear will had been thwarted by the Legislature. No smoke is a joke, and today the court agreed.”

Paul Armentano, Deputy Director of NORML, said in the non-profit group’s blog, “This ruling is a victory for Florida voters and, in particular, Florida’s patient community. These legislatively enacted restrictions arbitrarily sought to limit patients’ choices in a manner that violated the spirit of the law, and cynically sought to deny patients the ability to obtain rapid relief from whole-plant cannabis in a manner that has long proven to be relatively safe and effective.”

NORML has argued against regulations on patients’ access to whole plant herbal cannabis in the past, arguing that “many patients seeking rapid relief from symptoms do not benefit from cannabis-infused pills, tinctures, or edibles because they possess delayed onset compared to inhaled cannabis and are far more variable in their effects.”

In a similar case heard last month, Grievers ruled that a Tampa strip-club owner Joe Redner should be allowed to grow his own medical marijuana to juice as prescribed by his doctors to keep his lung cancer in remission.

The state has appealed Gievers’ decision in the Redner case and is expected to do so in this case. If the state does appeal the decision, Gievers’ order will be put on hold until the appeal is decided.

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