Florida Supreme Court – Florida Politics

Supreme Court takes initial pass on ‘home grow’ case

The Florida Supreme Court has turned down a request from Tampa strip club mogul Joe Redner to let him immediately pursue growing and juicing his own marijuana.

The court on Friday denied his petition to remove a delay of the effect of a lower court’s ruling. The case now is under review at the 1st District Court of Appeal.

Friday’s 1-paragraph order says Redner had “failed to demonstrate” that getting involved now was “necessary to protect this court’s eventual jurisdiction or to prevent irreparable harm.”

Circuit Judge Karen Gievers had tried to make her order last month immediately applicable.

It confirms that Redner — a 77-year-old lung cancer survivor — has the right to ‘home grow’ under 2016’s constitutional amendment on medical marijuana. His doctor says juiced marijuana is the best way to keep his cancer in remission. 

The Department of Health, which regulates the drug through its Office of Medical Marijuana Use, appealed. That caused the delay of the effect of Gievers’ ruling. The state says only licensed medical marijuana providers can grow cannabis in Florida.

Luke Lirot, Redner’s attorney, has said the state erroneously argues that the amendment doesn’t mean what it says: That qualified marijuana patients can grow their own.

The state’s legal definition of “cannabis” says it’s “all parts of any plant of the genus Cannabis, whether growing or not (and) the seeds thereof,” which Lirot says bolsters Redner’s case.

Redner, owner of the Mons Venus nightclub, is a vegan. Gievers’ order limits him to no more than eight ounces or raw marijuana daily, based on his doctors’ recommendations. It applies only to Redner and allows him to “possess, grow and use marijuana” only for juicing.

Health spokesman Devin Galetta has said the agency “fully expects Judge Gievers’ ruling to be reversed on appeal.”

State files to block effect of ‘home grow’ ruling

The state’s Department of Health says a trial court made an “erroneous conclusion” that Tampa strip club mogul Joe Redner has a constitutional right to homegrown, juiced (medical) marijuana.”

But Redner’s attorney says the state simply continues to argue – also erroneously – that the state’s constitutional amendment on medical marijuana doesn’t mean what it says.

The department filed a response Friday to Redner’s request to the state’s Supreme Court to allow him to immediately pursue growing and juicing his own marijuana.

He won a decision, now under appeal, from Tallahassee Circuit Judge Karen Gievers last month that Redner — a 77-year-old lung cancer survivor — has an immediate right to ‘home grow.’ His doctor says juiced marijuana is the best way to keep his cancer in remission, though the state countered he “also acknowledged the lack of scientific research to support this claim.”

But the state appealed to the 1st District Court of Appeal, which reinstated a delay of the effect of the ruling while the case is under review there. Redner asked that court to expedite the appeal.

The Health Department regulates medicinal cannabis through its Office of Medical Marijuana Use.

In its response, the department’s lawyers in part argued that under the “definition of ‘medical use,’ a qualifying patient is not entitled to cultivate (i.e., grow) or process marijuana because the words ‘cultivate’ and ‘process’ are not included” in the constitutional amendment approved by voters in 2016.

“Instead, the right to cultivate and process medical marijuana is reserved for” authorized medical marijuana providers, it says.

But the state’s definition of “cannabis” says it’s “all parts of any plant of the genus Cannabis, whether growing or not (and) the seeds thereof,” which Redner says bolsters his case.

While he awaits the appeal, he’s also asking Gievers to order the state to reimburse his legal costs — including $16,000 for PowerPoint presentations — because he won the lawsuit. The state later asked that the costs request be held “in abeyance” pending the appeal.

Health spokesman Devin Galetta has said the agency “fully expects Judge Gievers’ ruling to be reversed on appeal.”

Luke Lirot, Redner’s attorney, said he “disagrees with the department’s arguments” and said the stay should be lifted. 

“We have an important constitutional issue that will invariably be before them, coupled with (Redner’s) emergent medical condition,” he said. “… Time is of the essence.”

Redner, owner of the Mons Venus nightclub, also is a vegan. Gievers’ order limits him to no more than eight ounces or raw marijuana daily, based on his doctors’ recommendations. It applies only to Redner and allows him to “possess, grow and use marijuana” only for juicing.

Friday’s full 22-page filing is here.

Spin ’em: Jacksonville race track appeals slot machine denial

In another gambling case that could reach the state Supreme Court, a Jacksonville casino is appealing the state’s ending of its quest for a slot machine license.

Jacksonville Kennel Club, which does business as bestbet, filed a notice of appeal to the 1st District Court of Appeal on Tuesday after the Department of Business and Professional Regulation (DBPR) turned down its slots application last month. The department regulates gambling through its Division of Pari-mutuel Wagering.

Any addition of new slots is opposed by the Seminole Tribe of Florida, which pays the state millions each year for the exclusive right to offer slots at its casinos outside South Florida.

Moreover, a proposed constitutional amendment on the ballot this November would require the statewide approval of voters before any expansion of gambling — and its backers say the measure would have retroactive effect.

The crux of the Jacksonville appeal is last May’s unanimous Supreme Court decision denying slot machines to a track in Gretna, Gadsden County, and in other counties that passed local referendums authorizing slots. Duval was one such county, which passed a referendum by 54 percent in 2016; bestbet Jacksonville wants to add slots to its poker and simulcast wagering.

The opinion by Justice Charles Canady found that “nothing in (state gambling law) grants any authority to regulate slot machine gaming to any county.”

The opinion added, however, the “general power of non-charter counties to ‘carry on county government’ does not constitute authorization to conduct a referendum to approve slot machine gaming.” (“Charters are formal written documents that confer powers, duties, or privileges on the county,” according to the Florida Association of Counties.)

Duval is a charter county, and the Jacksonville track argues the Gretna decision doesn’t apply to charter counties.

DBPR counters that it does, and that Duval and other counties’ slots referendums weren’t allowed under a constitutional amendment narrowly passed by statewide voters in 2004.

It legalized slots at existing jai-alai frontons and horse and dog racetracks only in Broward and Miami-Dade counties and only if voters there OK’d it in referendums, which they did.

The track is represented by the Korn & Zehmer law firm of Jacksonville and the Lockwood Law Firm of Tallahassee.

A similar appeal is pending in the 4th District Court of Appeal by the company doing business as the Palm Beach Kennel Club. The Lockwood firm also is involved in that case. Palm Beach County passed a slots referendum in 2012.

Last week, that court decided to “dispense with oral argument,” meaning a three-judge panel of the court will decide the case solely on the filings.

Justices asked to consider dismissed tobacco cases

About three months after an appeals court upheld the dismissal of 73 lawsuits against tobacco companies, plaintiffs’ attorneys are asking the Florida Supreme Court to take up the dispute.

The attorneys filed a notice last week as a first step in seeking Supreme Court review, according to documents posted Monday on the court’s website.

The 1st District Court of Appeal in February backed the dismissal of the lawsuits and refused to allow attorneys to amend the complaints because the clients had died before the cases were filed. The lawsuits stemmed from a 2006 Florida Supreme Court ruling that established findings about a series of issues including the dangers of smoking and misrepresentation by cigarette makers. The ruling helped spawn thousands of lawsuits in state and federal courts, with plaintiffs able to use the findings against tobacco companies — lawsuits that have become known as “Engle progeny” cases.

After the 2006 ruling, Jacksonville attorneys Norwood Wilner and Charlie Farah filed approximately 3,700 Engle progeny cases in Florida state and federal courts, according to court documents.

But the appeals court in February backed a Duval County judge’s decision to dismiss the 73 cases because clients were dead. The appeals court said that after the cases were originally filed, attorneys “then waited eight years to backfill the case with legitimate plaintiffs and claims for the very first time.”

But in an interview in February with The News Service of Florida, Wilner disputed the appeals court’s conclusions.

Wilner said he filed the cases on behalf of clients who had come to his office, in some instances more than a decade before the Engle progeny cases were filed.

“When they came to see us, they were quite alive. We had no way of knowing they were not alive. We tried to preserve their claims as best as we could,” Wilner said. “We’ve always erred on the side of the clients. We’re disappointed that the court didn’t agree with us, but we tried to get these people some compensation for their injuries.”

Death sentence upheld in 1988 murder, sexual battery

The Florida Supreme Court on Thursday rejected an appeal by a Death Row inmate convicted in the 1988 murder and sexual battery of a woman whose badly beaten body was found in a dugout at a little-league baseball field.

Attorneys for inmate Perry Alexander Taylor challenged his death sentence based on a 2016 U.S. Supreme Court decision and because of disputed evidence about whether Taylor had sexually battered victim Geraldine Birch.

The 2016 U.S. Supreme Court decision found that Florida’s death-penalty system was unconstitutional because it gave too much authority to judges, instead of juries, in determining whether death sentences should be imposed.

That decision and subsequent Florida Supreme Court decisions led to a requirement that juries make unanimous recommendations before defendants can be sentenced to death.

A Hillsborough County jury in Taylor’s case voted 8-4 to recommend a death sentence, which was imposed by a judge.

But while the Florida Supreme Court has retroactively applied the unanimity requirement to cases going back to 2002, it has said that earlier cases — such as Taylor’s — are not required to have unanimous recommendations. Justices on Thursday rejected arguments stemming from the unanimity issue and the evidence issue, which was related to testimony by a medical examiner.

Perry, now 51, confessed to killing Birch but said it was not premeditated and that sexual contact was consensual, according to the Supreme Court ruling.

Florida Bar seeks early win in traffic ticket firm case

The Florida Bar is asking the state’s Supreme Court to give it the “W” in a case against an upstart Miami firm that’s allegedly practicing law without a license.

In its case against TIKD, The Bar is requesting for a “judgment on the pleadings,” bypassing oral arguments “when the outcome of the case rests on the court’s interpretation of the law.”

The company hires lawyers to fight people’s traffic tickets for them. If TIKD loses, it pays customers’ fines or court costs.

The Bar maintains that TIKD is in the wrong, in part because founder and CEO Chris Riley — a U.S. Navy commander-turned entrepreneur  isn’t a lawyer but his company advertises and acts like a law firm. 

“It is an undisputed material fact that (TIKD) offers legal representation to (its) customers through Florida lawyers to defend their traffic tickets,” the Bar said in a motion filed late Friday.

The company’s “advertising offers the public legal services to resolve their traffic tickets,” says The Bar, which regulates the practice of law and prosecutes the unlicensed practice of law, or UPL.

“It constitutes the unlicensed practice of law for a nonlawyer (i.e., Riley) to offer to provide legal services directly to the public,” The Bar’s motion says. “… (A) corporation owned and operated by nonlawyers (can’t) employ an attorney to give legal advice to its customers.”

TIKD’s defense has been the Uber argument: Just as the ride-booking company says it isn’t a transportation concern but a technology company, TIKD has said it’s “a technology platform,” not a law firm, on which customers pay a “fixed, pre-determined charge” to get their cases resolved.

This past Regular Session, TIKD hired Ballard PartnersBrian Ballard and Mat Forrest to get some legislative relief, but couldn’t get any traction with lawmakers.

No action on the motion had been taken as of Monday morning, court dockets show.

Supreme Court to hear medical malpractice dispute

The Florida Supreme Court on Thursday scheduled oral arguments in a medical-malpractice appeal filed by the estate of a woman who died while undergoing surgery for a tumor in her skull.

The court issued an order that set arguments for Aug. 29 in the case involving the 2009 death in Miami-Dade County of 45-year-old Maria Elena Espinosa.

The woman’s estate took the case to the Supreme Court after a divided 3rd District Court of Appeal last year upheld a circuit judge’s directed verdict for anesthesiologist Arturo Lorenzo, who evaluated Espinosa before the surgery.

The woman died on the operating table of what the appeals-court opinion said was exsanguination, which involves blood loss.

The case focused, in part, on whether Lorenzo properly considered an abnormal electrocardiogram in the evaluation. But the majority of the appeals court said Lorenzo had acted properly and that another anesthesiologist also conducted an evaluation before the surgery.

1st DCA asks Supreme Court to reconsider personal injury claims involving pollution

The 1st District Court of Appeal asked the Florida Supreme Court on Wednesday to clarify whether the high court meant to rule eight years ago that state environmental law doesn’t allow parties to recover personal injury damages arising from toxic spills.

Judge James Wolf, writing for a unanimous three-judge panel, took the high court at its word and denied a damages claim by a tow-truck driver who said he suffered acid burns while responding to a big-rig that spilled a load of batteries across a roadway.

“(H)owever, we certify a question of great public importance asking the court to clarify the matter,” Wolf wrote.

The case involved the Pollutant Discharge and Control Act, a 1970 law allowing “any person” to sue over “the … loss of any real or personal property, or … destruction of the environment and natural resources, including all living things except human beings;” and the 1983 Water Quality Assurance Act, which allows “any person to bring a cause of action … for all damages resulting from … pollution.”

In Curd v. Mosaic Fertilizer, decided in 2010, the high court said the 1970 law’s ban on personal injury damages also applied to the 1983 law.

The parties in Wednesday’s opinion, Simon’s Trucking Inc. v. Lieupo, differed on whether that portion of the Supreme Court ruling amounted to “dicta” — judicial asides that don’t speak to the dispositive issue in a case, and that don’t carry precedential value, but that might influence the outcome of a case in the future.

Personal injury wasn’t at issue in Curd, which involved fishermen suing over pollution in the waters they worked.

The high court took an expansive view of the 1983 law, ruling that it allowed “any person” to bring a cause of action for “all damages.” But applying that “except human beings” language from the 1970 law meant that Lieupo lacked ground to sue.

Lieupo’s attorneys argued that the high court couldn’t have meant it — that the holding would contradict the statute’s plain language. Indeed, Justice Ricky Polston had disagreed with his colleagues on the point.”

“We cannot, however, overlook the fact that the Curd court specifically found the 1970 definition of damages was applicable to the fishermen’s cause of action brought under the 1983 act,” Wolf wrote — especially given that the court was well aware of Polston’s objection.

“As such, we are required to apply the 1970 act’s definition of damages here, which precludes appellee’s cause of action for personal injuries,” he continued.

“However, because it is difficult to discern whether the Curd court actually intended for this definition of damages from the 1970 act to be applied to all causes of action brought under the 1983 act, we certify the following question as one of great public importance: Does the private cause of action contained in Section 376.313(3), Florida Statutes, permit recovery for personal injury?”

Major Harding: Protect our constitution from unnecessary clutter and logrolling

The week of April 16, 2018, the 37 members of the Florida Constitution Revision Commission (CRC) hold the unique power to approve or not approve what proposals will go on the 2018 ballot this November for voters to consider adding as amendments to our state’s constitution.

Given the substance of a number of the remaining proposals, and the grouping of those proposals, there are a number of concerns the Commission should consider.

First, as discussed in prior public addresses, many of the remaining proposals — irrespective of their underlying merits — do not belong in our constitution.

As then-Chief Justice [Alan] Sundberg noted in his dissent in State v. Firestone, 386 So.2d 561, 568 (Fla. 1980): “[t]he predecessor Constitution of 1885 had been repeatedly and persistently amended by inclusion of matters which did not rise to fundamental constitutional dignity. A major objective of the original Constitutional Revision Commission was to impose a more orderly and stringent process for amendment of the 1968 Constitution to curb the excesses which beset the 1885 Constitution.”

A number of the present proposals — regulating everything from naming of buildings to greyhound racing, civics lessons to vaping in public places — objectively do not rise to the level of fundamental constitutional dignity because they do not govern state government, protect fundamental rights and can be enacted through the legislative process.

The Commission must act to prevent these from being placed on the ballot and protect our constitution from unnecessary clutter.

Relatedly, the Commission’s present grouping of proposals makes the problem worse. By grouping proposals, the Commission is effectively depriving the voters of their right to choose what does and does not belong in Florida’s foundational text on a proposal-by-proposal basis. As a consequence, these groupings not only fail to curb the excesses of the constitutional amendment process, they deny the voters the ability to do so as well.

Although the Commission is not required to do so, the Commission should adhere to a single-subject requirement. All proposed amendments that come to the voters — apart from those produced through this process — must be limited to a single subject.

The Florida Supreme Court has recognized that one of the principal reasons for the existence of this requirement is “to prevent ‘logrolling,’ a practice that combines separate issues into a single proposal to secure passage of an unpopular issue.” Advisory Opinion to the Atty. Gen. re: Voluntary Universal Pre-Kindergarten Educ., 824 So. 2d 161, 165 (Fla. 2002). As discussed, logrolling is of particular concern as it relates to constitutional clutter.

Regardless of how popular an issue may be, combining proposals of constitutional concern with “ordinary law” proposals is unfair to the voters, and ultimately can result in an unnecessary and improper constitutional amendment. Voters should not be forced to consider approving proposals about which they have no interest, or worse, to consider propositions they would otherwise oppose in order to approve completely unrelated proposals that they like.

The Commission owes it to the voters to allow every proposal to rise or fall on its own respective merits.

The Commission should exercise restraint and reject proposals that detract from the basic purpose of a constitution. The Commission should exercise restraint by asking whether the proposal protects a fundamental right, and whether there is a reason why the proposal cannot be enacted by the legislature.

If the answer is no to these questions, then the Commission should vote to reject the proposal.

The Commission should also reject any attempts at logrolling and embrace a single-subject ballot scheme. The Commission should reject any proposal that groups unrelated propositions because doing so, while not unconstitutional, is nonetheless unfair to the people of Florida. We must keep our state constitution clean.

___

Major Harding is a former Chief Justice of the Florida Supreme Court.

Justices set arguments in car weapon case

The Florida Supreme Court will hear arguments June 6 in a dispute about whether a car can legally be considered a weapon.

Justices on Wednesday scheduled the hearing in an appeal by Adam Lloyd Shepard, who was convicted on a charge of manslaughter with a weapon after fatally striking Spencer Schott with a car after leaving a Jacksonville Beach bar in January 2011. The men earlier had been in an altercation in the bar. Under state law, the use of a weapon bumped up the manslaughter charge from a second-degree felony to a first-degree felony, carrying a longer prison sentence.

After a jury found him guilty of manslaughter, Shepard challenged the reclassification of the crime to a first-degree felony based on the car being considered a “weapon.”

While the 1st District Court of Appeal rejected Shepard’s argument, it acknowledged that its conclusion differed from a ruling in a separate case in the 2nd District Court of Appeal. Shepard appealed the issue to the Supreme Court, which said in January that it would take up the dispute.

Show Buttons
Hide Buttons