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Appellate court will review Joe Redner ‘home grow’ marijuana case

An appellate court is asking Tampa strip club mogul Joe Redner why it shouldn’t “review” a lower court order that he can grow and make juice of medical marijuana.

Outside lawyers for the Department of Health Tuesday appealed Circuit Judge Karen Gievers‘ decision to lift the ‘stay‘ on the case, making her ruling have an immediate effect. It also appealed the underlying decision.

That same day, the 1st District Court of Appeal (DCA) issued an order to Redner to “show cause” why it shouldn’t act. The 1st DCA order gives Redner and his attorneys till Thursday to respond.

That response hadn’t been filed with the court as of Wednesday morning, dockets show.

Redner is a lung cancer survivor who is in remission. His doctors say juiced marijuana is the “optimal” way to keep his cancer in check.

The department, on the other hand, “has provided no evidence of the harm it will suffer” by lifting the stay, Gievers wrote in an order released Tuesday, adding that medical marijuana regulators have not “complied with (their) constitutional duties as to determining dosage.”

Her prior order limits Redner to no more than eight ounces daily, based on his doctors’ recommendations.

Gievers previously said her decision was supported by the “clear language” of the state constitutional amendment OK’d by voters in 2016, and the “lack of any credible evidence” to the contrary.

Her order, which applies only to Redner, allows him to “possess, grow and use marijuana,” but only for juicing.

The department “fully expects Judge Giever’s ruling to be reversed on appeal,” said Devin Galetta, Health’s interim communications director.

The DCA case number is 1D18-1505.

Judge lifts stay in Joe Redner ‘home grow’ marijuana case

A Tallahassee judge on Tuesday lifted an automatic delay of the effect of her earlier ruling that Tampa strip club mogul Joe Redner can grow and make juice of his own medical marijuana.

An attorney for the Department of Health said it would immediately appeal Circuit Judge Karen Gievers‘ decision to lift the ‘stay‘ to the 1st District Court of Appeal. (A copy of the judge’s order is below.)

“It is solely Mr. Redner who will be harmed if the stay is not promptly vacated; each day he is kept from accessing the recommended marijuana juice increases the risk of irreparable harm to him,” she wrote.

Redner is a lung cancer survivor who is in remission. His doctors say juiced marijuana is the “optimal” way to keep his cancer in check.

The department, on the other hand, “has provided no evidence of the harm it will suffer” by lifting the stay, Gievers wrote, adding that medical marijuana regulators have not “complied with (their) constitutional duties as to determining dosage.” Her prior order limits Redner to no more than eight ounces daily, based on his doctors’ recommendations.

During a morning hearing, Redner attorney Luke Lirot reminded Gievers of her previous ruling that Redner has a constitutional right to possess growing marijuana plants. Redner did not attend but was listening in by phone.

But being in remission is “both certain and terrifying,” Lirot said in court. “This is a medical necessity,” he added, saying Redner showed a likelihood of irreparable harm if couldn’t immediately start juicing and drinking his marijuana.

“Every day he misses, every day he cannot consume his medicine, that’s a day we don’t get back,” Lirot said. “This is a real emergency, a sincere emergency.”

Jason Gonzalez, the Health Department’s outside counsel, said automatic stays of cases should not be lifted but for “rare exceptions.”

“This is not the case for an exception … This simply maintains the status quo,” he told Gievers, saying such motions should be granted only in the “most compelling circumstances.”

“What could be more compelling than the health of a human being?” Lirot countered.

In last week’s ruling, Gievers wrote that her decision was supported by the “clear language” of the state constitutional amendment OK’d by voters in 2016, and the “lack of any credible evidence” to the contrary.

Her order, which applies only to Redner, allows him to “possess, grow and use marijuana,” but only for juicing.

The department “fully expects Judge Giever’s ruling to be reversed on appeal,” said Devin Galetta, Health’s interim communications director.

Judge to hear arguments on stay in pot growing case

Joe Redner (Photo: Florida Trend)

A Leon County circuit judge has scheduled a hearing Tuesday to consider lifting a stay in a case in which Tampa businessman Joe Redner seeks to grow marijuana as part of his treatment for cancer.

Judge Karen Gievers this week ruled that Redner, who made his fortune as a strip-club owner, should be able to grow pot under a 2016 constitutional amendment that broadly legalized medical marijuana.

Attorneys for the state Department of Health, however, immediately took the case to the 1st District Court of Appeal, a move that placed an automatic stay on Gievers’ ruling.

Redner’s attorney, Luke Lirot, filed a motion Thursday arguing that Gievers should vacate the stay, leading to Gievers scheduling a hearing Tuesday.

Redner’s doctor ordered a juicing treatment that uses live marijuana plants to prevent a relapse of stage 4 lung cancer, according to court documents. State rules prohibit Florida medical-marijuana businesses from selling whole plants or flowers, spurring Redner to seek to grow his own plants.

“As it pertains to the department, there is simply no harm that would befall this justifiably castigated state agency if Mr. Redner is allowed to consume medication deemed by his doctor to be medically necessary,” the motion to vacate the stay said. “Under the scenario where the stay remains in effect, there will be even more of a delay, for a totally unknown period of time, in Redner having access to a medical necessity, the deprivation of which cannot be corrected or ‘made up for’ under any theory. The importance of Mr. Redner’s medical and health interests cannot be overstated.”

Republished with permission of the News Service of Florida.

Dumpster diving for pot? State continues rule-making for medical marijuana

Calling it a “blue sky opportunity,” the state’s chief medical marijuana regulator opened a rule-making workshop Friday with a twist: No rules.

Agencies usually issue draft rules weeks in advance of a workshop, so there’s something to comment on when interested parties arrive. Many attendees were lobbyists for marijuana providers.

But Christian Bax, head of the Florida Department of Health‘s Office of Medical Marijuana Use, told reporters after the workshop — which lasted barely half of the three hours allotted — that he wanted to start with a blank slate.

That includes addressing the emerging issue of ‘dumpster diving’ behind medical marijuana treatment centers.

“The department certainly has ideas on where we’d like to go … but this has been such a contentious issue, with so many people with so much to say,” Bax said. “We don’t want to get ahead of the process, and come out with (rules that say), ‘this is where the negotiation starts.’

“People get the idea we’re cemented behind a position, and it’s much more difficult to claw changes back,” he added. “We understand there will be pushback … but we want to have at least made a good-faith effort to get everyone’s opinion to have a benchmark to justify the rules.”

There wasn’t exactly a deluge of opinions, however, at the workshop, aimed at regulations on “packaging and labeling,” “solvent-based extraction” processes, retail location “advertising and signage,” and even “waste management.”

For instance, Bax said he’s heard “anecdotes” from other states where people were rifling through dumpsters behind medical marijuana stores looking for “product.”

“People perceive that waste as (containing) medical marijuana, or plant product,” he said. “We see now that waste disposal areas have become highly secure … You want to avoid the appearance of being a soft target.”

Could that result in Florida with a future rule on trash security, including lockable dumpsters? Maybe, Bax said, but that creates more problems.

“If people see a dumpster that’s locked, they’re going to think there’s something inside” worth stealing, he said. “We’ve been told about dumpsters with crowbar marks” because would-be thieves “perceive there’s product in there.”

Bax’s office now begins writing proposed rules, followed by additional public comment on the proposed language.

Tampa’s Joe Redner wins ‘home grow’ marijuana suit

A Tallahassee judge has ruled in favor of Tampa strip club mogul Joe Redner in his fight against the state to grow and make juice out of his own medical marijuana.

Circuit Judge Karen Gievers‘ order was released Wednesday. The state immediately filed a notice of appeal to the 1st District Court of Appeal. The notice said it would “automatically operate as a stay (that is, a delay of the effect of the order,) pending appellate review.”

Gievers had ruled last year that Redner, a lung cancer survivor, has a constitutional right as a “qualifying patient” to possess a live cannabis plant.

In Wednesday’s ruling, she wrote that her decision was supported by the “clear language” of the state constitutional amendment OK’d by voters in 2016, and the “lack of any credible evidence” to the contrary.

Her order allows Redner to “possess, grow and use marijuana,” but only for “juicing,” the form that Redner’s doctors have told him will work best to keep his cancer in remission. He can’t use more than eight ounces daily, she added.

Further, it’s not clear from the order whether her holding is limited to Redner, or applies to all medical marijuana patients in the state.

“The constitution says what it says, and the judge recognized that,” Redner said in a statement. “I’ve been saying all along: The Department of Health and the Legislature can’t take away the rights that the constitution gives you.”

Gievers wrote that the amendment gives the state’s medical marijuana regulators “no authority by which it may limit routes of administration for a qualifying patients to administer medical marijuana,” and said the Department of Health “has no authority to modify the rights of patients that Floridians have chosen to place” in the state’s governing document.

That’s the crux of another suit in Leon County, brought by Orlando attorney and entrepreneur John Morgan, who financially backed the marijuana amendment’s passage. He wants medical marijuana patients to be allowed to smoke the drug; the state now prohibits the smoking of medicinal cannabis. Gievers is also the judge on that case.

The judge also slammed the Florida Department of Health, which regulates medicinal pot through its Office of Medical Marijuana Use, for being “non-compliant” with the requirements of the amendment.

“We have appealed the judge’s ruling. Her order has been stayed. We will continue to work to implement the law so Florida patients can have safe access to this medicine,” said Devin Galetta, a spokesman for the department, in an email.

“I filed this lawsuit because I couldn’t have survived cancer without medical marijuana. It’s not just a miracle drug—it’s a miracle plant, and the State keeps standing in the way of patients getting their medicine,” Redner said Wednesday.

“…A mom who’s using low THC cannabis to control her child’s seizures can stick a plant in the ground and make her baby’s medicine for around 30 bucks a month if she can grow her own,” he added. “And 71 percent of us voted for an amendment that clearly gives her that right. This ruling is a victory for the patients of Florida.”

Redner is a stage 4 lung cancer patient, initially diagnosed in 2011. He became of one of the first people in Florida to challenge the state’s medical marijuana laws in June after state lawmakers implemented the 2016 constitutional amendment into law.

Redner, a multimillionaire, has said that he filed the lawsuit because “many patients don’t have enough money to pay for their medicine, let alone a lawsuit.”

“I filed this lawsuit because I couldn’t have survived cancer without medical marijuana,” he said in a statement last year. “I am a raw vegan, and I want to juice my own raw cannabis to protect my health. The only way to do that is to grow my own cannabis.”

In a separate statement Wednesday, CEO Kim Rivers of medical marijuana provider Trulieve said the company is prepared for the new business.

“Trulieve is committed to expanding patient access across Florida and, in anticipation of this court decision, we sought state approval to provide this patient — and others like him — with the medical marijuana his doctor prescribed. (We) stand ready to dispense it once authorized,” Rivers said.

Let us sell whole-plant medical marijuana, company says

Surterra Wellness, a medical marijuana provider, says it’s “joined the fight to allow direct-to-patient sales of full cannabis plants,” according to a Tuesday press release.

Surterra filed a “petition to intervene” in an administrative action by Trulieve, another Florida provider, to let medical marijuana treatment centers (MMTCs) “sell whole-plant cannabis.”

But Trulieve’s head later on Tuesday said she doesn’t want the help.

Specifically, Trulieve had filed a request to amend its MMTC application, according to Surterra’s filing. The action is with the Office of Medical Marijuana Use under the state’s Department of Health.

Patients “should be able to obtain cannabis in any format their doctor thinks will work best to treat them,” said Surterra CEO Jake Bergmann in a statement.

“The cannabis plant is medicine in its most natural form, and if DOH will allow it, we will provide it for patients.”

As an example, Bergmann said many patients turn whole plants into juice, “packed with nutrients and beneficial cannabinoids, without causing any psychoactive effects for patients.”

Tampa entrepreneur Joe Redner is awaiting a decision in a related legal battle with the state. Redner is suing to be allowed to grow marijuana for his own personal use.

“Joe Redner is suing the state and reached out to us to ask if we would sell seeds, clones and whole plants per his doctor’s recommendation,” Trulieve CEO Kim Rivers said in a statement sent to Florida Politics later Tuesday.

“We filed an amendment to our application to ask to be able to sell these products,” she added. “But we aren’t suing the state and there isn’t a proper entry point for another licensee to intervene.”

Marijuana provider: State’s pesticide regulation too ‘stringent’

If a pesticide is good enough for organic crops, it’s good enough to be used on medicinal pot, a Florida medical marijuana provider says.

Liberty Health Sciences, a Canadian concern operating in the U.S., last week filed an administrative challenge over a Florida Department of Health proposed rule on marijuana pesticides.

Within days, however, both sides agreed to a ceasefire, Division Of Administrative Hearings (DOAH) records show. They asked asked Administrative Law Judge June McKinney to call off an April 23-24 hearing.

That’s because Office of Medical Marijuana Use regulators were “continuing to evaluate the Proposed Rule in an effort to resolve the (company’s) concerns,” according to a filing. McKinney agreed, but ordered both sides to file a status report on the case by May 7.

“Failure to timely advise will result in the conclusion that this matter has been amicably resolved, and the file … will be closed,” McKinney wrote.

Liberty Health Sciences, represented by Tallahassee’s Lockwood Law Firm, says the department’s rule would “cause great harm to Florida’s medical marijuana industry and the patient population it serves.”

Here’s why: It “prohibits MMTCs (medical marijuana treatment centers) from using a large number of pesticides that have been approved for use in organic crop production without any valid scientific or legislative basis for such prohibition,” its filing says. 

“Very few substances meet the (department’s) stringent requirements, and the substances that do meet the requirements will adversely impact the quality of the cannabis product due to their low efficacy,” it adds.

“According to the clear language of (state) statute, the Office (of Medical Marijuana Use) may only determine which pesticides are safe for use on plants intended for human consumption. Once a pesticide has been determined to be safe for use on plants intended for human consumption, the Office must permit the pesticide to be used.”

The department has not filed a formal response, according to a Monday docket check.

Officials have “consulted with the Department of Agriculture and Consumer Services on its rule for pesticide use on marijuana, as required by Florida law,” Health Department Deputy Press Secretary Brad Dalton said in an email.

“Because there are no federally approved pesticides for use on marijuana, regulating pesticides within Florida’s medical marijuana market is a complex endeavor,” he added. “The Department will continue to work towards establishing a regulatory framework that protects some of our state’s most vulnerable patients in a manner that represents effective and efficient policy in practice.”

Legislature slashing Health Dep’t pay because of medical marijuana delays

[Ed. Note — This story, first posted Thursday, was updated Friday.]

Lawmakers on Thursday included a provision to withhold more than $1.9 million in Department of Health salaries and benefits in the final 2018-19 state budget until regulators fully implement medical marijuana.

The proviso language, which “qualifies or restricts a specific appropriation,” means certain Health officials will get a temporary pay and benefits cut until they “implement” medical cannabis as authorized under the state constitution and statute.

The full budget was released midday Thursday, to be voted on Sunday. The money will be “held in reserve,” with its release “contingent upon implementation,” the language says.

That means “solely and exclusively by adopting all rules required by statute and any other rules necessary to implement this constitutional provision.”

House Republican Jason Brodeur of Sanford, who first submitted the budget provision, on Friday clarified that the withheld pay applies to the department’s “executive direction entity.”

He defined that as including Health Secretary and state Surgeon General Celeste Philip, her chief of staff, legislative affairs director, and the Office of Medical Marijuana Use, including its director, Christian Bax.

The withheld pay is effective July 1, the start of the next fiscal year, but “wouldn’t have an impact until later in the year so it won’t cripple them right away,” Brodeur said.

“The (budget’s) implementing bill also provides some language to assist them in meeting that contingency so they can implement the will of the legislature more timely,” he added.

The budget would still be subject to line-item vetoes by Gov. Rick Scott, to whom the Health Department reports.

Lawmakers have long been irritated over the department’s delay in implementing medical marijuana under a 2016 constitutional amendment that voters passed by 71 percent.

They later approved and Scott signed an implementing bill, which gives guidance and instructions to state agencies on how to enforce state law.

Brodeur and other legislators, including Republican Sen. Dana Young of Tampa, have been peeved over a backlog of applications for marijuana growing and dispensing licenses, and for state-issued patient ID cards, among other things.

Moreover, the Joint Administrative Procedures Committee, which ensures that agencies write rules that line up with statutes, has sent at least 17 individual objections to the department over medical cannabis regulation.

They range from the department’s issuing “contingent licenses” and requiring the submission of a $60,830 nonrefundable application fee, to its listing more than 40 distinct operations violations “with no standards or guidance … , thereby vesting unbridled discretion in the Department.”

Bax has told lawmakers of recent progress, however.

That includes regulations on advertising and signage, edible products, and addressing the use of “solvents and gases” used in marijuana processing that could be toxic to humans. And he has said the department has inspected over 100 medical marijuana treatment centers, some “multiple times.”

Bax also told legislators that a deluge of lawsuits and administrative challenges, most over denied licenses, was slowing down the works.

But at a committee meeting last October, Young shot back, “I’m not buying it that because there’s litigation out there you can’t fulfill your statutory duty to issue these licenses.”

__

Updated — The following statement in response to this post was sent by Health Department spokeswoman Mara Gambineri:

“We are appreciative of the Legislature for exempting the department from the ratification requirement, which posed a barrier to expeditious implementation of rules – specifically the department’s ability to accept applications for new Medical Marijuana Treatment Centers (MMTCs). As stated in the department’s letter to JAPC, we plan to move forward with accepting applications for new MMTCs this spring.

“In addition, the department has initiated rulemaking for 11 rules and next week are hosting two public rule workshops focusing on the standards for the production of edibles and dosing for both low-THC cannabis and medical marijuana. Additional public workshops have been scheduled in March and April.

“The department has put substantial effort into streamlining the Medical Marijuana Use Registry Identification Card program. Yesterday, we announced that we’ve further streamlined the application process for OMMU Registry Identification Cards through the deployment of online payments.

“This comes on the heels of completing the integration of photos from the Department of Highway Safety’s system. To date, there are more than 83,000 patients registered in the OMMU Registry with access to 29 dispensing locations and statewide delivery of low-THC cannabis and medical marijuana.

“The department has made – and will continue to make – significant progress in the implementation of Amendment 2 and section 381.986 Florida Statutes, despite the special interests involved in this new industry.”

Legislature backs bill removing black farmer medical marijuana requirement

The state is one step closer to removing a barrier for a black farmer to receive a medical marijuana growing license.

The Senate on Thursday passed a bill (HB 6049) that would delete a provision from statutes requiring a black farmer to be a member of the Black Farmers and Agriculturalists Association Florida Chapter to be eligible for one of the state’s medical marijuana growing licenses.

The House passed the bill earlier, meaning it now awaits Gov. Rick Scott’s approval to become law.

The move comes in the wake of an ongoing lawsuit filed by Columbus Smith, a black farmer from Panama City who argued that the BFAA stipulation barred him from receiving a growing license.

The state is required to give one of its 10 pot-growing licenses to a recognized class member of the Pigford v Glickman class-action lawsuit, in which the federal government was found to have discriminated against black farmers. When the state crafted its medical marijuana licensing laws, it stipulated that in order for a black farmer to be eligible to receive a license under the Pigford v. Glickman clause, the black farmer must also belong to the Black Farmers and Agriculturalists Association.

Smith said he was not able to join BFAA and that the provision is unconstitutional. A Tallahassee judge in December sided with Smith and ordered Department of Health officials to stop awarding licenses, according to the News Service of Florida.

Before the vote, Sen. Kevin Rader withdrew an amendment that would have subjected the director of the Office of Medical Marijuana Use to confirmation of the Senate.

The current director, Christian Bax, has been criticized by the Legislature for not “fully implementing” medical marijuana as provided by statutes.

“This has never happened in the history of the Legislature where the rule that the statutes that we create are being broken by the executive branch and its as simple as that,” Rader, a Delray Beach Democrat, told senators before withdrawing his amendment.

The bill received near-unanimous approval in both chambers. Sen. Dennis Baxley, an Ocala Republican, was the lone no vote in the Senate. Rep. Brad Drake, a Eucheeanna Republican, was the lone no vote in his chamber.

Judge sets trial for medical marijuana ‘no smoke’ case

A Tallahassee judge has set a one-day trial for May 16 in the legal effort to overturn the state’s ban on smoking medical marijuana.

But in her order, Circuit Judge Karen Gievers said she will first hear the state’s motion for summary judgment at 10 o’clock that morning; summary judgments allow parties to win a case without a trial.

If it does proceed to trial, Gievers will hear the case without a jury. Her order was filed last Friday.

The suit is backed by John Morgan, the Orlando attorney and entrepreneur known for his ubiquitous Morgan & Morgan law firm advertisements.

He championed passage of the constitutional amendment on medicinal cannabis approved by voters in 2016.

Last year, lawmakers approved and Gov. Rick Scott signed into law an implementing bill (SB 8-A) for the amendment that does not allow marijuana to be smoked.

The suit seeks a declaratory judgment that the smoking ban runs counter to the amendment’s language, which itself does not expressly say medicinal cannabis can be smoked. The suit is against the Department of Health, which regulates medical marijuana.

House Republican Leader Ray Rodrigues of Estero, who sponsored the implementing bill, has said “we don’t believe you smoke medicine.” Edibles and “vaping” are permitted, however.

Attorney Jon Mills, arguing against the ban at a January court hearing, said the amendment’s definition of marijuana includes the smokeable kind.

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