Judge weighs ban on patients smoking pot
Cathy Jordan credits pot with helping her defeat the odds in the battle against Lou Gehrig’s disease she’s waged for more than 30 years.
And although she can now legally obtain the cannabis treatment she’s relied on for decades, Jordan is prohibited from what she and her doctors swear is the best way for her to consume her medicine --- smoking joints.
Jordan is among the plaintiffs challenging a state law that bans smoking pot as a route of administration for the hundreds of thousands of patients who are eligible for medical marijuana treatment in Florida.
With her husband, Bob, serving as her interpreter during a trial Wednesday, Jordan told Leon County Circuit Judge Karen Gievers and a packed courtroom that she started smoking pot a few years after she was diagnosed with amyotrophic lateral sclerosis, or ALS, in 1986.
“My doctors are really not concerned with the risk because I’m still alive. In ‘86, I was given three to five years to live. And I’m still here,” Jordan, draped in a pink shawl, testified.
Wednesday’s hearing came more than 18 months after voters overwhelmingly approved the constitutional amendment that broadly legalized marijuana for patients with debilitating medical conditions like Jordan.
Lawmakers last year 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.
Senior Assistant Attorney General Karen Brodeen said “smoking should never be a route of administration for any medicinal product.”
“Smoking is a crude delivery system that delivers harmful substances. It is associated with various respiratory symptoms. It contains many of the same toxins as does tobacco smoke,” she said.
But Jordan said none of the dozens of doctors she’s seen over more than 30 years have ever told her to stop smoking marijuana. In fact, her current neurologist advised her to do just the opposite.
“They’re actually more interested in how healthy I am after having ALS for so long,” said Jordan.
The prohibition on smoking was included in a state law aimed at implementing the 2016 constitutional amendment, but John Morgan, the Orlando trial lawyer who largely bankrolled what was known as Amendment 2 and initiated the lawsuit, is among those who maintain that the smoking ban runs afoul of the Constitution. Gievers did not rule on the challenge Wednesday.
“The amendment itself says smoking is not allowed in public places. I don’t think you need to be too much of a legal scholar to understand that means it is allowed in other places,” Morgan told reporters before the hearing began.
Morgan and the other lawyers representing the plaintiffs also used a “slippery slope” argument, saying lawmakers and health officials could have banned a variety of other routes of administration.
“Look, if the Legislature wanted to, they could have banned edibles, which they tried to do. They could have banned oils, which they tried to do. They could have banned smoke and they could have said, ‘Listen, we’re just going to let it be done by suppository.’ What stops that?” Morgan said.
During arguments Wednesday, Jon Mills, a former House speaker and former dean of the University of Florida law school who was one of the chief authors of Amendment 2, told Gievers the law passed last year is in “irreconcilable conflict” with the Constitution.
Mills also pointed to the Legislature’s outlawing of smoking marijuana as evidence that the Constitution permits it.
“Why would you act to exclude smoking if smoking wasn’t authorized?” he asked.
Lawyers for the state, however, argue that the amendment does not expressly allow smoking and gives Florida officials broad authority to “regulate health, safety and welfare” of the public.
“It’s not anything goes,” Senior Deputy Solicitor General Rachel Nordby said.
But other routes of administration are problematic for Jordan, who grows her own marijuana.
Vaping makes her gag. Edibles give her stomach cramps. 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, said the diminutive Jordan, who frequently breaks out in an infectious smile.
“It just makes my life a lot more bearable,” she said.
But Nordby told the judge that several provisions in the amendment highlight that “the state has a role in setting parameters” for marijuana use, including the ban on smoking.
“It is not whatever the doctor says. It is not anything goes,” she said.
The plaintiffs, in contrast, insist that the Constitution allows smokable marijuana in a variety of ways, including how marijuana is defined.
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.
The plaintiffs are also relying on an “analysis of intent” of the amendment, published prior to the November election and disseminated broadly to the media and the public, to bolster their argument that smokable pot always was part of the plan.
Ben Pollara, who was the campaign manager for Amendment 2 and is president of Florida for Care, a non-profit organization advocating for patients and the medical marijuana industry, testified Wednesday that the public was fully aware that the proposal would have legalized smoking of medical marijuana.
“It was just assumed by most, if not all, that when we were talking about marijuana, we were talking about the green, leafy stuff that you smoke,” Pollara, one of the authors of the analysis, said.
Speaking to reporters after Wednesday’s hearing, Morgan called Cathy Jordan a “Florida hero” and urged the state to back down.
“Enough is enough. Let’s stop the politics. Let’s let these people live their final years with dignity,” he said.
In a separate marijuana-related lawsuit, Gievers telegraphed how she is likely to rule in the smokable pot case. Gievers last month gave the go-ahead to Tampa strip-club owner Joe Redner to grow his own marijuana for use in juicing. The 77-year-old Redner’s doctors ordered the juicing treatment to keep his lung cancer in remission.
“Nothing in the amendment authorizes the Department of Health (or any other part of Florida’s government) to ignore the rights of qualifying patients to access the medical marijuana treatment to which they are entitled under the Florida Constitution, or to exclude any method by which qualifying patients may take their medicine,” Gievers wrote in a 22-page order, in which she also scolded health officials for being “non-compliant” with the Florida constitutional requirements.
The state has appealed Gievers’ decision in the Redner lawsuit, and Redner has asked the Florida Supreme Court to weigh in on the case.