Judge strikes down ban on smoking medical marijuana – Florida Politics

Judge strikes down ban on smoking medical marijuana

Quoting George Washington and Thomas Jefferson, a Florida judge has ruled that the state’s ban on smoking medical marijuana is unconstitutional.

In a 22-page order released Friday, Circuit Judge Karen Gievers said that the ban on smoking is “invalid because it conflicts” with the constitutional amendment on medicinal cannabis approved by statewide voters in 2016. A one-day trial was held last Wednesday. 

The ban “prohibits a use of medical marijuana that is permitted by the amendment: smoking in private,” she wrote. The suit is against the Department of Health, which regulates the drug through its Office of Medical Marijuana Use.

Health Department spokesman Devin Galetta said the agency will appeal the ruling, which will put an automatic delay on its effect. 

“This ruling goes against what the Legislature outlined when they wrote and approved Florida’s law to implement the constitutional amendment that was approved by an overwhelmingly bipartisan majority,” he said in an email.

The amendment, passed by 71 percent of voters, was spearheaded by Orlando attorney and entrepreneur John Morgan, who filed the lawsuit against the ban. 

“When I start something I finish it. Truth prevails!! The voters will be done!! #BELIEVE #ForThePeople #NoSmokeIsAJoke,” he tweeted Friday. 

Gievers agreed with argument from plaintiff’s counsel Jon Mills that the amendment “recognizes there is no right to smoke in public places, thereby implicitly recognizing the appropriateness of using smokable medical marijuana in private places.”

In an email to Florida Politics, Morgan called the decision “a huge win for Floridians.” He sat at counsel’s table but did not participate in last week’s trial.

“I hope and pray that Gov. (Rick) Scott and (Attorney General) Pam Bondi don’t appeal this win for the people,” he added. “I think this could be a major issue in the U.S. Senate race. It has all drug out long enough.

“…Let the people find compassionate care while they recover and also while they die in dignity,” Morgan said. Representatives for Scott and Bondi were not available Friday evening.

But Kim Rivers, CEO of Florida medical marijuana provider Trulieve, late Friday said her company “stands ready to provide Florida patients (with) full flower cannabis” that can be smoked: “We look forward to guidance from the Department of Health on next steps to approve this next form of medicine for patients.

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Gievers began by quoting Washington’s 1796 Farewell Address that people have the right to “make and alter” their constitutions, which are “sacredly obligatory upon all.” She added a line from Jefferson that written constitutions should be not be made “blank paper(s) by construction.”

The Legislature’s ability to pass laws is not “unfettered,” the judge wrote, in that lawmakers can’t “overrule or ignore the ‘sacred obligation’ referred to by President Washington.”

“Just as no person is above the law, the Legislature must heed the constitutional rights Floridians placed in the Constitution in 2016,” Gievers wrote.

The judge noted that “no legislation is needed to implement the Amendment,” but that if lawmakers chose to pass laws related to it, those acts must be “consistent with” the amendment.

Because the amendment doesn’t require the “accommodation” of smoking marijuana in public, Gievers reasoned – as did Morgan and Mills – that “the ability to smoke medical marijuana was implied in this language and is therefore a protected right,” the order says.

Last year, lawmakers approved and Gov. Rick Scott signed into law an implementing bill for the amendment that does not allow marijuana to be smoked. House Republican Leader Ray Rodrigues of Estero, who sponsored the measure, has said “we don’t believe you smoke medicine.” Edibles and “vaping” are permitted, however. Rodrigues couldn’t be reached.

That statute now must be “stricken,” Gievers said, as “unconstitutionally inconsistent.”

Gievers also called “compelling” testimony from plaintiff Cathy Jordan, a Manatee County woman who has Lou Gehrig’s disease, uses a wheelchair and struggles to speak. She testified at trial that she’s been smoking marijuana since the late 1980s: “I figured, ‘what the heck, what’s it gonna do, kill me?’ “

“Qualifying patients,” including Jordan, “have the right to use the form of medical marijuana for treatment of their debilitating medical conditions as recommended by their physicians, including the use of smokable marijuana in private places,” the judge wrote.

Gievers, elected to the circuit bench in 2010 from private practice, also recently ruled in favor of Tampa strip club mogul Joe Redner, whose lung cancer is in remission. He sued to be able to grow his own marijuana to make juice of it. The state is now appealing that ruling. 

Jim Rosica covers state government from Tallahassee for Florida Politics. He previously was the Tampa Tribune’s statehouse reporter. Before that, he covered three legislative sessions in Florida for The Associated Press. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat, including reporting on the 2000 presidential recount. He can be reached at jim@floridapolitics.com.

3 Comments

  1. All we need to do is look at the YouTube video….’John Morgan rant’ to understand the root motivation behind this. With his guard down, Mr. Morgan goes on about smoking grass. Ultimate goal….legalizing weed in Fla. The ‘experiment’ is killing people, damaging lives, and driving up crime in other states. Is that what it’s going to take to recognize the reality of this drug.

    Fla. Legislature recognized the reality of the Medicinal Marijuana Amendment when it re-wrote Florida Statute 386. In some ways it did not address key issues/risks. But one thing it did was to not make smokeable weed legal….voted on by both parties.

    Now, John Morgan has won a lawsuit….question is will we stand and fight?

    btw…here is a link to that YouTube video: https://www.youtube.com/watch?v=0EPi6LT9ShI

    1. Where are the links to all your accusations? I would like to see the statistics on how legalizing cannabis cuases death, damages lives, or increases crime rates. I’m assuming you won’t be posting any credible stats because they don’t exist. Cannabis has been widely studied since the legalization in other states. The criminalization of cannabis is the only true negative side effect that it has ever had.

  2. Blake Harper – you have NO IDEA what you are talking about. Cannabis has never killed a single human being. Ever. It’s a plant, not a drug. Big Pharma is the problem here. Their products kill tens of thousands every year. And they are the driving force trying to delay medical cannabis legislation.
    “Drug Free Florida” helped craft the House version of Amendment 2. Tallahassee politicians and the governor have their pockets stuffed with cash from Big Pharma.
    Over 90 people A DAY die from opiate overdoses. Educate yourself.

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