Florida Ban On Smokable Medical Marijuana Unconstitutional – Judge Rules

by Bamidele Ogunberu Posted on May 26th, 2018

Tallahassee, Florida, USA: Leon County Circuit Court Judge, Karen Gievers, has ruled that the state’s ban on smokable medical marijuana is unconstitutional- in favor of People United for Medical Marijuana and two patients challenging the ban. The ruling paves the way for patients to be able to smoke the drug instead of using edibles, oils or vapes.

Voters approved a constitutional amendment in 2016 allowing the use of medical marijuana through vaping and in food, oils, sprays and tinctures.

The Florida legislature last year included a provision banning medical marijuana from being smoked, and Governor Rick Scott signed the measure into law in June.

The plaintiffs argued that because the amendment’s language only mentions smoking in public, users should be allowed to smoke in private.

Judge Karen Gievers wrote in her ruling that residents “have the right to use the form of medical marijuana for treatment of their debilitating medical conditions as recommended by their certified physicians.”

Medical marijuana advocates praised Gievers’s ruling as a victory for patients.

“I don’t think you need to be too much of a legal scholar to understand it means it is allowed in other places,” said John Morgan, who led the effort to get the constitutional amendment passed.

Jon Mills, who represented the plaintiffs, said in closing arguments that the intent document clearly laid out that private use was not illegal.

“It does allow regulation of amount but not type. Clearly smokable marijuana is a type of marijuana,” he said.

Florida legalized medical marijuana through a constitutional amendment in 2016. The following year, state lawmakers passed measures to ban the sale of smoking products, saying that patients could use medical marijuana through other methods, such as vaping, food and oils.

Orlando attorney John Morgan, who led the push to legalize medical marijuana Florida, filed a lawsuit challenging the ban two weeks after Governor Scott signed the bill. He was joined in the suit by two patients with terminal illnesses who benefit from smokable medical pot.

Cathy Jordan, who has had ALS since 1986, says smoking the plant dries her excess saliva, increases her appetite and works as a muscle relaxer.

Diana Dodson, who has had HIV since 1991, testified May 16 that vaping is 50 percent less effective than smoking and that smoking allows her to get the proper dosage.

Jordan said that when she was diagnosed with ALS — amyotrophic lateral sclerosis — doctors thought she would live only three to five more years. She credits smoking with helping to prolong her life, and has been supported by her physicians.

“So many people won’t smoke due to the stigma and it being against the law. This is legitimate medicine,” she said by phone from her Manatee County home after the ruling. “This ruling is not just for me but for many other people.”

Deputy Solicitor General Rachel Nordby, representing the state, deemed the law was constitutional because the Legislature has a role in policing public health concerns.

“This case is not about what is or what is not marijuana. This case is about is the permissible plain uses of marijuana,” she said.

A spokesman for the Florida Department of Health said in a statement that Gievers’s ruling “goes against what the legislature outlined when they wrote and approved the law to implement the constitutional amendment that was approved.”

The Florida health department said that it has appealed the ruling, resulting in an automatic stay.

The next stop will be the state”s 1st District Court of Appeal in Tallahassee. It will be the second medical marijuana case that court will take up after Gievers ruled last month that a Tampa man — Joseph Redner — is entitled under state law to possess, grow and use marijuana for juicing. Redner was prescribed juicing treatments from his doctor to prevent a relapse of stage 4 lung cancer.

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Bamidele Ogunberu

Bamidele Ogunberu

A prolific writer, Bamidele has worked in generalist and public relations capacities for an energy company before making the cross over into journalism and has never looked back
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