Marijuana smoking ban case smolders in appellate court
THC cap mulled by Senate panel on smokable marijuana


The state constitution “creates a procedural right to seek treatment with smokable marijuana,” according to a new filing in an appeal by patients seeking to light up medicinal cannabis.

Attorney Jon Mills filed a 48-page answer brief late Thursday, in response to the state’s 57-page brief last month arguing that the smoking of medical marijuana should remain outlawed.

The 1st District Court of Appeal case followed a May ruling by Tallahassee Circuit Judge Karen Gievers, who said the smoking ban violates the 2016 constitutional amendment, passed by 71 percent of voters, that broadly legalized medical marijuana.

The next year, lawmakers passed and Gov. Rick Scott signed into law a measure to carry out the constitutional mandate and included a smoking ban.

Prominent Orlando entrepreneur and lawyer John Morgan, who bankrolled the amendment, organized a lawsuit last year challenging the ban. Attorney General Pam Bondi’s office, behind the appeal, filed an initial brief in an attempt to overturn Gievers’ ruling.

In part, Gievers had agreed with 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 his brief, Mills said the constitution’s marijuana provision “permits physicians to certify treatment using medical marijuana— including in a form for smoking—to qualifying patients. That is all (it) does. Nothing less. Nothing more.

“However, (the state law) explicitly prohibits the smoking of medical marijuana as a treatment. It is clearly an enactment contrary to (the amendment).”

The state contends the amendment “does not create a ‘right to smoke’ medical marijuana,” and Mills agreed it “does not in itself create an individual right for anyone to smoke.”

But, he added, the “constitutional framework authorizes treatment with medical marijuana when a physician determines such treatment to be medically appropriate for a specific patient with a debilitating medical condition.”

As of Friday, the court had not ordered oral argument in the case.


Background provided by The News Service of Florida, republished with permission.

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].


  • Hello

    September 14, 2018 at 5:27 pm

    What’s the answer?

  • Diann

    September 15, 2018 at 9:47 am

    Ridiculous – we (Medical Card Holders) who had to JUMP they hoops & pay OUT OF POCKET should have RIGHTS – Opiod Patients exercise their rights?????

  • Dee

    September 15, 2018 at 2:06 pm

    Ok, well they really need to figure out the logistics of it and get it finalized. Until then, Florida Patients would be smart to use other forms until it gets approval for being smoked. Smoking it probably is not the most healthy was to consume it either way. As long as the anxiety/pain relief is reached, this is what is important!!!
    Another point to make is that the Feds should reclassify THC as a Schedule II now that there are so many states that have “documents cases of THC Providing a Medical Benefit”!! Schedule 1 (current class) means no medical benefit or accepted medical use!!! Not Current Anymore!!!! Clearly there are Doctors out there writing scripts for it and this is accepted!!! These Laws Need To Change!!!

    • Michael

      September 15, 2018 at 4:46 pm

      It should not be class 2. It should not be classified at all.

      • Linda

        September 16, 2018 at 1:19 pm

        100% agree

    • Sam

      September 19, 2018 at 2:32 pm

      Some issues are only relieved with an effect experienced when consuming whole plant matter. An effect that is not present when concentrates are consumed. It’s known as the entourage effect.

  • Robert redwoodhippie Palmer

    September 16, 2018 at 2:23 pm

    Marijuana should be recognized as a natural medicinal herb and should be legalized for both medicinal and recreational use. It is a sacred plant.

  • Florida Patient

    September 17, 2018 at 9:02 am

    The fact that dispensaries are proudly touting 97% thc shatter, but the 15-30% thc flower is still banned simply makes no sense. And because the concentrates (usually made with butane) only give, at most, a 20% return of product, they still struggle keeping up with demand. No one making the decisions seem to be educating themselves on the subject. Case in point, my recommending physician JUST learned that these plants are only good for one harvest. He didn’t understand why the dispensaries couldn’t keep up because he thought they were like orange trees and each plant just keeps producing flowers.

  • Everyone here

    September 18, 2018 at 12:33 pm

    It’s funny how when we call it “vaping” everyone is alright with it. It’s still heating cannabis flower or oil and inhaling it . Combustion doesn’t change the method of administration. But look how the MMTC’s are racking it in, and at four times street value from what I hear from patients. Biggest cartel I’ve ever seen. Nice job Tallahassee;-)

    • Nonyabiz

      September 26, 2018 at 2:59 pm

      This is not true; combustion does not occur at vaping temperatures. Please don’t spout BS about something you obviously don’t know anything about.

  • Concerned election year voter

    September 18, 2018 at 5:25 pm

    WHY WHY WHY Do we keep electing idiots ? Everyone who has more than a 5th grade education can see the medical benefits. Can these doofuses (or is it doofi) really argue that cannabis is more dangerous than oxycodone (sch 2) or Xanax (sch 3). It’s time to act at the voting booth ! Legalize now

Comments are closed.


Florida Politics is a statewide, new media platform covering campaigns, elections, government, policy, and lobbying in Florida. This platform and all of its content are owned by Extensive Enterprises Media.

Publisher: Peter Schorsch @PeterSchorschFL

Contributors & reporters: Phil Ammann, Drew Dixon, Roseanne Dunkelberger, A.G. Gancarski, Anne Geggis, Ryan Nicol, Jacob Ogles, Cole Pepper, Gray Rohrer, Jesse Scheckner, Christine Sexton, Drew Wilson, and Mike Wright.

Email: [email protected]
Twitter: @PeterSchorschFL
Phone: (727) 642-3162
Address: 204 37th Avenue North #182
St. Petersburg, Florida 33704