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Yes, You May Smoke It: Judge Rules Florida’s Ban on Smoking Medical Marijuana Unconstitutional

| May 28, 2018

Cathy Jordan, a patient who was diagnosed with Lou Gehrig’s disease more than three decades ago, told the judge she credits smoking joints with saving her life.

Cathy Jordan, who is among the plaintiffs in the case, is a patient who was diagnosed with Lou Gehrig’s disease more than three decades ago. She told the judge she credits smoking joints with saving her life. (NSF)

A state law banning patients from smoking medical marijuana is unconstitutional, a Tallahassee judge ruled late Friday.

In a highly anticipated but not surprising decision, Leon County Circuit Judge Karen Gievers found that a constitutional amendment approved by voters in 2016 that broadly legalized medical marijuana gives eligible patients the right to smoke the treatment in private.

The law banning smoking of medical marijuana “is invalid because it conflicts with the Florida Constitution and prohibits a use of medical marijuana that is permitted by the amendment: smoking in private,” Gievers wrote in Friday’s 22-page order.

A spokesman for the Florida Department of Health said the state is expected to appeal, which likely would place Gievers’ order on hold.

Gievers’ decision came a little more than a week after a hearing in which Cathy Jordan, a patient who was diagnosed with Lou Gehrig’s disease more than three decades ago, told the judge she credits smoking joints with saving her life.

Jordan is among the plaintiffs in the lawsuit initiated by John Morgan, the Orlando trial lawyer who largely bankrolled what was known as Amendment 2. The prohibition on smoking medical marijuana was included in a law passed last year that implemented the constitutional amendment.

The amendment does not expressly authorize smoking pot but gives the state the authority to enact regulations regarding medical marijuana use, lawyers for the state have maintained.

But, agreeing with the plaintiffs, Gievers found that the language in 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 consistent with the amendment.”

The “ability to smoke medical marijuana was implied” in the constitutional language “and is therefore a protected right,” Gievers wrote.

Shortly after Gievers’ opinion was released, Morgan tweeted: “When I start something I finish it. Truth prevails!! The voters will be done!! #BELIEVE #ForThePeople #NoSmokeIsAJoke.”

Sen. Bill Galvano, a Bradenton Republican who will take over as Senate president in the fall, said Friday evening he had not read the order but intended to review it to ascertain the judge’s reasoning. “It is a significant departure from what was passed (in the law),” he said.

Lawmakers enacted the prohibition on joints — derided as “no smoke is a joke” by critics — largely to protect the public from the ill effects of smoking, lawyers for the state argued during the May 16 hearing.

But Jon Mills, a former House speaker who was instrumental in crafting the amendment and represents the plaintiffs, insisted that the Constitution in a variety of ways allows smokable marijuana, including in how marijuana is defined.

For example, the constitutional amendment relied on a 2014 definition of marijuana in Florida criminal law, which includes “all parts of any plant of the genus Cannabis, whether growing or not.” That includes whole-flower marijuana, which is used for smoking, the plaintiffs contend.

Gievers agreed.

“The amendment addresses the role of each of the three branches of Florida’s government in making sure that those who need marijuana for treatment of their pertinent medical issues are able to have safe access to it, without restriction except that there is no right to smoke in public places,” she wrote.

During the May 16 hearing, Jordan — who relied on her husband to interpret her speech — testified that she was given three to five years to live after being diagnosed with amyotrophic lateral sclerosis, or ALS, in 1986. She began smoking marijuana as a treatment a few years after she was diagnosed, Jordan said.

Other routes of administration — such as vaping — don’t work for her, Jordan said.

Smoking gives Jordan “dry mouth,” which offsets the excessive drooling caused by ALS, she said. And it relaxes her muscles, increases her appetite and helps combat depression, Jordan said.

“It just makes my life a lot more bearable,” said Jordan, who currently grows her own marijuana.

Ben Pollara, the campaign manager of the political committee behind Amendment 2, hailed the judge’s ruling.

“This is a huge victory for sick and suffering Floridians, who can now consume their medicine however they choose. And it’s a victory for voters, whose clear will had been thwarted by the Legislature. No smoke is a joke, and today the court agreed,” said Pollara, who’s also the head of the non-profit organization Florida for Care, which advocates for patients and the medical marijuana industry.

Friday’s decision was the second victory Gievers handed to patients who have challenged the state over medical-marijuana restrictions. Last month, she gave the go-ahead to Tampa strip-club owner Joe Redner to grow his own medical marijuana for “juicing.” The 77-year-old Redner’s doctors ordered the juicing treatment to keep his lung cancer in remission. The state has appealed Gievers’ decision.

Mills praised Gievers’ ruling in the smokable marijuana case.

“I’m delighted that the Constitution has prevailed,” he told The News Service of Florida. “This upholds the will of the people, and we’re grateful the justice system worked.”

–Dara Kam, News Service of Florida

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14 Responses for “Yes, You May Smoke It: Judge Rules Florida’s Ban on Smoking Medical Marijuana Unconstitutional”

  1. MRC says:

    Unfortunately Rick Scott filed an appeal 2 seconds after this ruling. Therefore there is a stay on the decision. So, the state once again attempts to thwart the will of the 71% of registered voters who passed Amendment 2. The state has put up every roadblock imaginable to prevent patients from using all forms of the plant to treat their devastating conditions. Wake up and get educated Floridians! I guess we can pass all the constitutional amendments we want but the state government will still do whatever they want to do regardless of what voters have purposely enacted. You need to take a good long look at your elected officials and their financial backers and companies they (or their spouses) own, in order to understand their true motives. If you believe in compassionate care for chronically/critically ill patients, then do your part and contact the governor’s office to let them know how you feel about Scott wasting tax payer money on appeals that they will end up losing anyway. This needs to be stopped.

  2. Mm patient says:

    The only dangerous thing about marijuana is the laws

  3. Anonymous says:

    Legalize freedom!

  4. KB Carp says:

    “Sen. Bill Galvano, a Bradenton Republican who will take over as Senate president in the fall, said Friday evening he had not read the order but intended to review it to ascertain the judge’s reasoning. “It is a significant departure from what was passed (in the law),” he said.”

    And, what was (finally) passed in the law was a significant departure from what was ordered in the Constitutional Amendment. If the Legislature had done their job properly (as in realizing the will of their constituents) instead of dragging their feet and re-purposing the amendment with their legislature, this would never have come up. But, Florida has one of the worst “We know what’s good for you better than you do” legislatures I have seen – after living in 8 different states during my adult life.

  5. knightwatch says:

    But, won’t smoking marijuana make you crazy…make you a Democrat!!

  6. Vinny says:

    All HAIL John Morgan

  7. ConstantlyAmazed says:

    Do the second smoking laws and the clean air act still apply ?

  8. Pogo Lito says:

    If Rick Scott is afraid of folks overdosing by smoking marijuana, he should know, vaping delivers up to 5x the potency of whole flower. While nothing about marijuana is dangerous – vaping 96% THC extract can make the inexperienced feel uncomfortable and can lead to anxiety and confusion. Additionally, the effects of vaping oil made with a CO2 extraction process do not last long enough for many patients.

    On the other hand, vaping is stealthy and can be used while driving, at the movies, in a restaurant, or in a classroom…

  9. Anonymous says:

    The people have voted and the judge has ruled, time to stop the “bait and switch” nonsense. They seem concerned with abuse and overdose, so they allow edibles?, If you check stats the ONLY overdoses are from EDIBLES. The time has long expired for making this very useful plant illegal, and no need for any big pharma to get involved. It is a plant that needs no refining for use, and you should be able to grow it for your own use, just as you can corn. After all Corn can be used to make illegal whiskey………

  10. Wayne says:

    After Amendment 24 passed, Scott used the groups who fought against it and lost to create the laws. What makes Scott think his prejudices should overrule the law?

  11. John Dolan says:

    We are born with inaliable rights that were not given to us by any government and they cant be taken away by government.

  12. Trailer Bob says:

    Listen…I read the law, I voted yes on the law, and now our elected officials are tweaking the law contrary to what we voted on. Time to vote most of them out of office if they cannot represent the people who put them in office in the first place.

  13. Anonymous says:

    IT will never be legalized in backward Florida, ever, no matter 100% vote for recreation. Smoke discreetly and enjoy in spit of…

  14. Yvonne Andrews says:

    My father had ALS (amyotrophic lateral sclerosis) for 3 years His first symptoms were weakness in his hands and losing his balance which led to stumbling and falling. He never lost the ability to swallow or breathe. His one hand, then his legs, were affected first; then his arms. The Rilutek (riluzole) did very little to help him. The medical team did even less. His decline was rapid and devastating. The psychological support from the medical centre was non-existent and if it were not for the sensitive care and attention of his primary physician, he would have died . There has been little if any progress in finding a cure or reliable treatment. So this year his primary physician suggested we started him on Natural Herbal Gardens ALS Herbal mixture which eased his anxiety a bit,We ordered their ALS herbal treatment after reading alot of positive reviews, i am happy to report this ALS herbal treatment reversed my dad condition. His quality of life has greatly improved and every one of his symptoms including difficulty in walking and slurred speech are gone. Their official web site is ww w. naturalherbalgardens. c om He will be 74 soon and can now go about his daily activities

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