Judge Weighs Ban On Smoking Medical Marijuana

After spending more than five years pleading with the Florida Legislature to legalize medical marijuana, Cathy Jordan and her husband, Bob, were back in Tallahassee on Thursday.

But this time, the Bradenton couple appeared in a Leon County courtroom, asking a judge to overturn a state law that bans patients who qualify to use medical marijuana --- like Cathy Jordan, who has suffered from Lou Gehrig’s disease for more than three decades --- from smoking their treatment.

Florida voters in 2016 approved a constitutional amendment authorizing patients with certain debilitating medical conditions to use pot, if their doctors order the treatment. The Legislature in June passed a law to carry out the constitutional amendment, which was largely bankrolled by Orlando trial lawyer John Morgan.

The law bans smoking medical marijuana, something Morgan, Jordan and their lawyers argue violates the constitutional amendment.

Leon County Circuit Judge Karen Gievers heard arguments Thursday focused on a state request to have the case dismissed, with the Jordans seated beside lawyers Jon Mills and George Coe, who represent the plaintiffs. Cathy Jordan, other patients and People United for Medical Marijuana, the political committee led by Morgan, are suing the state over the smoking prohibition.

State Deputy Solicitor General Rachel Nordby told Gievers that banning marijuana smoking was within the Legislature’s realm.

“The plain language of the medical-marijuana amendment authorizes the Legislature to enact laws consistent with the amendment. Here, the Legislature has enacted a law that embodies reasonable health and safety concerns in compliance with the amendment,” Nordby argued, adding that “there is no express requirement that smoking has to be allowed” in the amendment.

Mills, a former House speaker and former dean of the University of Florida law school, agreed that the Constitution doesn’t expressly require the Legislature to allow smoking.

“It doesn’t. It doesn’t require the Legislature to do that because the Constitution itself allows smoking. There’s no need for the Constitution to say, ‘Legislature, you may allow smoking, or must,’ ” he said.

The Constitution allows smokable marijuana in a variety of ways, including how marijuana is defined, Mills argued.

The constitutional amendment relied on the 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, according to Mills.

The state also argued that the case should be dismissed because the plaintiffs lack standing.

But Mills maintained that Jordan has standing to sue because she has a debilitating illness that qualifies her for marijuana use under the Constitution, and that her doctor has authorized her to use smokable marijuana as a treatment.

“The Constitution was designed for people like Cathy Jordan. Cathy has ALS, and she’s been treated with medical marijuana. I believe that’s plenty,” Mills told reporters.

The state smoking ban is “inconsistent” with the language of the Constitution, which provides a process to determine whether an individual may qualify for “medical use” of marijuana, Mills argued. By prohibiting smoking, the Legislature is substituting its judgment for that of a Florida doctor, a conflict with the process laid out in the Constitution, Mills maintained.

“This is the controversy. The controversy is whether the statute has denied access,” he said.

Morgan has repeatedly argued that a provision in the constitutional amendment authorizing lawmakers to ban smoking of marijuana in public places means that smoking is permitted elsewhere.

Even if smoking marijuana is prohibited in public places, “you can’t restrict smoking inside when there’s a medical condition that justifies it,” Mills said after the hearing.

Gievers on Wednesday gave the go-ahead to a separate marijuana-related lawsuit filed by Joe Redner, a Tampa strip club owner who was diagnosed with cancer in 2011, challenging the state’s prohibition against patients growing their own marijuana. 

In her order denying the state’s request to dismiss the Redner case, Gievers wrote that the 2014 statutory definitions of marijuana “make clear that the plaintiff’s interpretation of the meaning of words used is supported, and justified,” a finding Mills said supports his case.

After hearing Thursday’s arguments, Gievers said she would try to issue a ruling quickly.

Speaking with reporters after the hearing, Bob Jordan related the couple’s lengthy battle over his wife’s treatment.

Deputies raided the couple's Manatee County home in 2013 and confiscated marijuana plants. But prosecutors decided not to charge the Jordans after Norm Kent, their lawyer, convinced them Cathy needed the pot to treat her disease.

Cathy Jordan has to smoke whole-flower cannabis because she can’t use vaporizers, Bob said.

“The vape makes her gag. If she gags, it can kill her,” he said.

Cathy Jordan has consulted with more than 30 neurologists, and none have told her to stop smoking marijuana, which has successfully treated her condition for about two decades, her husband said.

“The Legislature has taken the place of doctors telling us what we can and cannot do,” Bob Jordan said. “We voted for a constitutional amendment so we couldn’t be prosecuted for smoking cannabis. We’re still in danger.”

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