Judge sets hearing in ‘no smoke’ medical marijuana case

John Morgan inset(2)

A Tallahassee judge will hear argument on whether to throw out Orlando attorney John Morgan‘s lawsuit over the ban on smoking medical marijuana.

Circuit Judge Karen Gievers scheduled a Jan. 25 hearing on the state’s motion to dismiss, court records show.

The suit originally was filed in July by People United for Medical Marijuana, the political committee behind the constitutional amendment on medicinal cannabis approved last year.

Morgan, of Morgan & Morgan law firm fame, bankrolled the amendment that was OK’d by a whopping 71 percent of voters. The suit seeks a declaratory judgment that the smoking ban runs counter to the amendment’s language.

Lawmakers have since approved and Gov. Rick Scott signed into law an implementing bill (SB 8-A) for the amendment that does not allow medicinal marijuana to be smoked.

House Republican Leader Ray Rodrigues, who sponsored the implementing bill, has said “we don’t believe you smoke medicine.” Edibles and “vaping”—heating cannabis and inhaling the steam—are permitted.

Deputy Solicitor General Denise Harle argues that “the plain language of the Amendment refutes” Morgan’s case.

The plaintiffs, who include patients qualified to use medicinal cannabis, “do not even try to claim that the constitutional text … actually states that smoking must be permitted.”

Indeed, when Morgan spoke to reporters this summer after filing suit in Tallahassee, he said he included the language in an “intent statement,” but not in the text of the amendment.

The amendment says “(n)othing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.”

Morgan analogized the situation to a pool sign that says, “No swimming without lifeguard on duty.” It’s implied that when there’s a lifeguard around, swimming is allowed, he said.

When asked why he didn’t make it crystal clear, Morgan said the amendment “speaks for itself. Now, if you can’t figure it out, I can’t help that.”

Jon Mills, retired dean of the University of Florida law school and a former state House Speaker (1986-88), is Morgan’s lead counsel on the action.

Mills responded to Harle that the amendment itself “places no limitation on the use of marijuana in a form for smoking,” calling the ban a “direct irreconcilable conflict.”

Saying that the amendment doesn’t overtly address smoking “misses the point,” he added: Banning it “takes discretion out of the hands of patients and physicians.”

Jim Rosica

Jim Rosica is the Tallahassee-based Senior Editor 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 [email protected].


  • Tony

    December 18, 2017 at 8:46 am

    I think the main argument to be made is that florida lawmakers are taking control away from the many doctors (primarily more on the west coast where cannabis has had more time on the “legal” market) who say that smoking is the most beneficial means of ingestion because of the interactions between the different cannabinoids and terpines, not just having access to Delta 9 THC, which florida dispensaries are mainly focused on. But florida lawmakers want to pretend that they have some sort of knowledge on this when in reality they are just plain talking out of their asses; at the expense of florida citizens.


  • Roni J. ISOM

    December 18, 2017 at 2:54 pm

    I absolutely can’t stand the worthless Jargon they have come up with to NOT LET US SMOKE IN OUR OWN HOMES… REAL MARIJUANA THAT NO ONE’S GOING TO OVERDOSE ON… OR DIE FROM BECAUSE THEY TOUCHED IT OR SMELLED IT, MISTAKENLY INDUCED IT… BUT NOW COMES the GOVERNMENT, To Outlaw the Small business of the people to make it strictly for the Government Appointed companies to GROW IT, Change it, Make it look like Candy, then Blame all of us smokers who have been smoking in hiding for 60 years with no BAD EFFECTS with US. I HAVE SMOKED FOR 40 OF MY 54 YEARS, I believe it should be ours to keep as a plant and to grow and smoke anyway we want to!

  • Mark Barnette

    December 18, 2017 at 4:39 pm

    I believe that it should be up to the patient and doctor to decide what is the best delivery method used to delivery the desired chemistry and dosage to the patient. Lawmakers just tried to hijack the amendment because the GOP has been against medical marijuana from the start. I have always been a staunch conservative but they are wrong on this position.

  • Diane Gracely

    December 18, 2017 at 8:14 pm

    I agree with all 3 comments made so far. One of the BIGGEST issues is CANNABIS should be kept in original form for those who want to smoke, let them smoke. I prefer to VAPE but that’s just ME. Many other patients benefit more from smoking because they are getting ALL of the PLANTS nutrients and intended health benefits. It should NOT be up to our GOVERNMENT to tell us HOW we can use medical cannabis. AND we NEED HOME GROW now. Every other LEGAL state ALLOWS their PATIENTS to GROW a certain number of plants and we should be allowed to GROW OUR OWN here in Florida too. For Pete’s SAKE, let’s get OVER the LIES of many years. CANNABIS is MEDICINE. Every patient SHOULD be allowed to grow and smoke if they want too. What our GOVERNMENT does NOT CARE ABOUT is they KNOW most of the patients who BENEFIT from cannabis as medicine CANNOT afford it. People are struggling to GET WELL with CANNABIS. Let us GROW our OWN and make our own EDIBLES. We are SUPPOSED to have EDIBLES and we HAVE NOTHING. NO edibles except for the people who don’t give a crap any more and they are making their own edibles anyway! I could go on and on here but it’s just NOT worth it because our CRAZY government STILL thinks we should ALL still believe ALL OF THE LIES that have gone on for many YEARS. BUT we elders KNOW the TRUTH and have for many years. Many elders have been using CANNABIS as medicine by SMOKING it for MANY MANY YEARS.

  • Pen Nameo

    December 18, 2017 at 10:37 pm

    I have been involved with both legal medical and recreational marijuana business and legislation in several States. The guiding principle of legalization is to curtail the massive unregulated black market, wherein: patients do not know if their purchased products have been adulterated, monetary gains from the elicit sales end up in the pockets of criminals and their criminal organizations, and those that need the plant for its profound medicinal (wellness) capabilities cannot garner the products in a timely fashion without “always looking over their shoulders” and/or without paying a hefty price for those products due to the plants illegality. A well regulated (and robust) marketplace for medicinal use can be obtained, I assure you. The biggest hold back that I see with regards to the current legislation as currently inacted is that cannabis in its flower form is being withheld from the people. I have read your comments and completely agree that flower must be made available for purchase by the patients (whom have jumped through many hoops), as it is the most cost effective way to obtain the cannabinoid therapies which they seek. I have created many compounds from the plant, at a great cost to manufacture, thereby passing that extra cost onto consumers. I can also assure you that is it much less expensive to process cannabis flower, thereby reducing the cost to the consumer. I have been told that Floridians (patients) are currently paying in excess of $300 PER GRAM for cannabis concentrates… THAT IS CRIMINAL IN AND OF ITSELF. The cost to manufacture, process, and distribute a gram of concentrate (in raw form) falls within a range of $25-$50 dependent on the various styles of cultivation, processes of extraction, packaging, operations and running costs and taxation. To add; I have read that many citizens believe that a free market system, wherein an allotment for many industry specific businesses will decrease the end cost to the consumer. While this can be true on paper, I can attest that it does more harm than good. Also; if there exists a dozen or so (highly) regulated dispensing organizations (vertically integrated), there will be plenty of stiff competition for market share. Enough so that the pricing to the consumer will be within the range of cost that I previously stated. Frankly, a majority of patients will not enjoy cannabis concentrates due to the rapid up-regulation (modulation) of their endocannabinoid system, as this has been my experience working with patients and large groups of consumers. Flower in its basic form will not cause many of those patients to become over medicated for varying reasons (past experience, lower dosage of cannabinoids found in raw flower form, etc.). I commend John and his team for their steadfast approach and continued support of the patients of Florida. From what I have gathered; Judge Gievers is an excellent judge. We shall see what comes of this soon. -E

  • Vicky Chairez

    December 20, 2017 at 7:37 pm

    I’d rather smoke than Vape

  • Disgusted Voter

    December 22, 2017 at 10:32 am

    MMJ in Florida is a joke. 72%+ of citizens voted for it so the legislature that never wanted to leagalize it gave the responsibility for writing the law to those who opposed MMJ. Now we have laws counter to the amendment and get to play litigation games while patients suffer. Can’t grow it, can’t buy it and can’t smoke it; but it’s legal. Catch 22is alive and well and living in Florida.

    • Diane Gracely

      December 23, 2017 at 7:27 am

      I own my own business “Puff For Life” working as a medical marijuana patient consultant. I’ve helped thousands of clients for free to get their medical marijuana card through an affordable doctor. My clients are all low income and have a hard time affording the medicine sold at the dispensaries. We NEED a “Home Grow” law passed ASAP. Over 70% of VOTERS voted for an Amendment and it has been trashed by our government. We need a better Medical Marijuana Program, STOP making us FIGHT for our rights to use and grow our medical marijuana medicine. Do the RIGHT thing and implement EVERYTHING included in the Amendment NOW. STOP making us file lawsuits to fight for everything. This is pure INSANITY. Just follow the footsteps of the other LEGAL states.

Comments are closed.


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