Appellate judges dig into state’s medical marijuana smoking ban


Newly minted Gov. Ron DeSantis has indicated he may drop the state’s appeal of a court decision that said a Florida law banning patients from smoking medical marijuana is unconstitutional.

But on the same day the Republican successor to former Gov. Rick Scott was sworn into office, lawyers for the state tried to persuade a three-judge panel to uphold the smoking prohibition.

Tuesday’s arguments at the 1st District Court of Appeal were the latest twist in a challenge to a 2017 law aimed at implementing a constitutional amendment that broadly legalized medical marijuana. More than 71 percent of voters approved the constitutional amendment in 2016.

Architects of the amendment, including Orlando trial lawyer John Morgan, filed the challenge because they said the prohibition on smokable marijuana runs afoul of the Constitution.

Tallahassee-based Circuit Judge Karen Gievers last May agreed with the plaintiffs and struck down the ban, but her decision has been on hold after the state appealed.

Attorneys representing the Department of Health on Tuesday continued to defend the 2017 law, saying the constitutional amendment gives health officials the power to issue regulations and that the Legislature was right to ban smoking because of its ill effects.

“The amendment does not in any instance guarantee immunity for smoking marijuana,” Deputy Solicitor General Jordan Pratt said.

But appellate Judge Timothy Osterhaus questioned the Legislature’s authority to override the requirements of the amendment, which does not specifically authorize smoking.

“Do you think that’s key here, that they didn’t knock out all ways of administering … that they left ways open, or could they have decided that all ways are unsafe?” Osterhaus asked.

Pratt said the law allows for a variety of other methods of consumption and that lawmakers probably would not have been able to ban all types of administering the treatment.

“Is there harm to the voters writ large, if they’ve gone through the process of amending their Constitution, and the Legislature decides, ‘No, we’re not going to go for that and we’re going to veto what you’ve passed?’ ” Osterhaus asked.

The court’s focus “begins and ends with just one question, which is whether the amendment requires smoking of marijuana,” Pratt said.

“And there’s simply nothing in the amendment that says that,” he added.

But Jon Mills, a former dean of the University of Florida law school who helped craft the amendment, told the judges the 2017 law is in direct conflict with the Constitution.

The Constitution allows doctors to order smokable marijuana for eligible patients, but the law does not, Mills said.

“If you could prevent one method, could you prevent all,” Mills said, adding that is “not a small constitutional conflict.”

Whether or not smoking is bad for patients’ health is not an issue, Mills maintained.

“If the constitutional boundaries are set, there are no set of circumstances or facts that justify violating the Florida Constitution,” he said.

Cathy Jordan, a plaintiff in the case, credits a daily regimen of smoking marijuana with keeping her alive decades after doctors predicted she would die from Lou Gehrig’s disease.

Jordan, who grows her own pot, testified last year that smoking marijuana treats a variety of life-threatening side effects of the disease and that other forms of ingestion don’t have the same positive impact.

“Cathy Jordan is not trying to have a good time. She’s trying to live. And what works for her is what she and her doctor agreed upon, and that was smoking,” Mills told the judges Tuesday. “There is a conflict. It’s irreconcilable. And that really is the end of the story.”

While Scott’s administration strenuously objected to allowing patients to smoke marijuana, DeSantis appears to have a different view.

Speaking to reporters on Monday, DeSantis said he has “not committed” to upholding the ban.

“I think at the end of the day, when the people speak on these things, we want to implement their will,” he said. “I don’t think that that’s been done fully. So we are going to be taking actions with medical marijuana that are consistent with what I said in the campaign.

“It was a 72 percent issue, and I have different minds, from different people, about how effective it’s going to be. But at the end of the day those debates are really before the vote happens, and once the vote happens, you’ve got to move on. So we’ll take some actions within a pretty short time.”

Republished with permission of The News Service of Florida

News Service Of Florida

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.


  • Ben James

    January 8, 2019 at 5:58 pm

    By over 70% in favor Florida voters passed the constitutional amendment for medical cannabis legalization easily achieving the required supermajority. NOWHERE in the language of the amendment does it restrict smoking cannabis as a method of consumption. Since the amendment PASSED Florida Republicans have done everything possible to deny the will of the people and stop legalization efforts including making smoking medical cannabis illegal. These corrupt politicians answer to corporations for alcoholic beverages, pharmaceutical drugs and private prisons that are scared witless that cannabis legalization will upset their multi-billion dollar deadly addictive stranglehold on the US public. Florida voters should take careful note of this corruption next time they vote and excise these corrupt politicians in favor of new representation that answers to the will of the people not corporations.

    • Richard Rousseau

      January 9, 2019 at 7:58 am

      All so very true!

  • Clements Price

    January 9, 2019 at 3:35 am

    My Wife was diagnosed with ALS (Lou Gehrig’s Disease) when she was 72 years old 4 years ago. The Rilutek (riluzole) did very little to help her. The medical team did even less. Her decline was rapid and devastating. Her arms weakened first, then her hands and legs. Last year, a family friend told us about Organic Herbal clinic and their successful ALS TREATMENT, we visited their website organicherbalclinic . c o m and ordered their ALS Formula, i am happy to report the treatment effectively treated and reversed her Amyotrophic Lateral Sclerosis (ALS), most of the symptoms stopped, she is able to walk and eat well, sleep well and exercise regularly., she is pretty active now and her attitude is extremely positive.

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

Contributors & reporters: Phil Ammann, Jason Delgado, Drew Dixon, Renzo Downey, Rick Flagg, A.G. Gancarski, Joe Henderson, Janelle Irwin, Ryan Nicol, Jacob Ogles, Scott Powers, Andrew Wilson, and Kelly Hayes.

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