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Judge Strikes Down Florida's Ban on Smokable Medical Marijuana

Posted by Arlin Crisco on May 29, 2018 6:12:48 PM

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Tallahassee, FL—A Florida state court judge last Friday struck down the state legislature’s ban on smokable medical marijuana, concluding the prohibition was unconstitutional. People United for Medical Marijuana v. Florida Department of Health, 2017CA001394. 

In a 22-page decision, Circuit Court Judge Karen Gievers found Floridians "have the right to use the form of medical marijuana for treatment of their debilitating medical conditions… including the use of smokable marijuana in private places."

The state has appealed the ruling, according to published reports.

The decision follows a one-day bench trial streamed live by CVN, in which medical marijuana rights advocates challenged Fla. Stat. § 381.986(1)(j)(2), which excludes smokable pot as a “legal medical use.” Plaintiffs, including two women with chronic diseases, claim the exclusion violates Fla. Const. Art X, § 29, which stems from the 2016 passage of an amendment to legalize medical marijuana in the state.

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Arguments over the issue focused on the bounds of the state’s power under the constitutional provision. In openings of the mid-May trial, Rachel Nordby, of the Florida Office of Attorney General, argued the constitutional provision gave the state broad powers to regulate medical marijuana. She noted the amendment provided that marijuana use could not conflict with Florida Health Department rules. “The fact that the definition of 'medical use' refers to not being in conflict with department rules indicates that the state, through the department… has a role in regulating what is permissible medical use under the amendment,” Norbdy said. “We can’t ignore that definition.”

However, Boies Schiller’s Jon L. Mills, representing the plaintiffs, argued the amendment’s provision empowering the legislature to restrict the use of medical marijuana in public places did not extend to a restriction in private areas. “The constitution says you can exclude the use of medical marijuana in a public place obviously means that it can be used appropriately in a private place,” Mills, who is also dean emeritus and professor at the University of Florida’s Levin College of Law, said. Mills added the law’s exclusion of smokable medical marijuana is “irreconcilable, in direct conflict” with the constitution’s language.

The suit, among several cases attacking various provisions of the statute, was originally filed by People United for Medical Marijuana, the group led by Morgan & Morgan’s John Morgan, who spearheaded passage of Amendment 2. In a news conference from his law office Tuesday, Morgan called on Florida Governor Rick Scott to drop the appeal.

CVN has reached out to party representatives for comment and will update this article as warranted.

Email Arlin Crisco at acrisco@cvn.com.

Related Information

Plaintiffs are represented by Jon L. Mills, Marcy Lynch, George Coe, and Karen Dyer, of Boies Schiller & Flexner.

The Florida Department of Health, which enforces the law through its Office of Medical Marijuana Use, is represented by Karen Brodeen, Rachel Nordby, and Denise Harle, of the state's Office of Attorney General, according to court records.

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Topics: People United v. Florida Department of Health, Florida