State Seeks To Uphold Ban On Smoking Medical Marijuana

Pointing in part to smoking-related health effects, Attorney General Pam Bondi’s office on Friday filed a 57-page brief arguing that an appeals court should uphold a decision by the Legislature to ban smoking medical marijuana. 

The brief, filed at the 1st District Court of Appeal, came as the state challenges a May ruling by Leon County Circuit Judge Karen Gievers, who said the smoking ban violates a 2016 constitutional amendment that broadly legalized medical marijuana.

The Legislature in 2017 passed a law to carry out the constitutional amendment and included the smoking ban.

Prominent Orlando lawyer John Morgan, who heavily bankrolled the constitutional amendment, filed a lawsuit last year challenging the smoking ban.

Bondi’s office Friday filed an initial brief in its attempt to overturn Gievers’ ruling. The brief raised a series of issues, including arguing that the Legislature “considered important health and safety factors” when deciding to ban smoking.

“Notably, the Legislature considered evidence of the health hazards of smoking and concluded that smoking marijuana constitutes a harmful delivery method,” the brief said. “Time and again during debate, elected members of Florida’s Legislature emphasized that the amendment is exclusively about medicine, and that smoking is antithetical to good medicine. In considering these health-related factors, the Legislature reasonably determined that the harms caused by smoking --- including harms to patients and those exposed to secondhand smoke --- were ample reason to exclude smoking from the statutory definition of ‘medical use.’ The Legislature therefore acted under its general authority to regulate public health, safety, and welfare when it drew a reasonable line between the smoking of medical marijuana, and other delivery methods.”

But in her May ruling, Gievers found that 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.

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