Citrus 'preference' spurs marijuana dispute
From: News Service of Florida
An orchid grower and investors spent nearly $800,000 to purchase property in Pinellas County they believed would give them a leg up in obtaining a highly sought-after medical marijuana license.
But one of the owners told a state judge Monday he now believes the business would have been better off keeping the cash, due to what his lawyers are calling a faulty rule proposed by state health officials.
Louis Del Favero Orchids is challenging the proposed rule, which is based on a law passed last year implementing a voter-approved constitutional amendment that broadly legalized medical marijuana. The orchid grower argues the proposal fails to properly carry out the law, which includes giving preference for up to two medical marijuana licenses to applicants who own facilities that were used to process citrus.
The 2017 law also required health officials to issue 10 new licenses to applicants that meet certain requirements. Overall, the state has issued licenses to 13 operators, including a handful of new operators who met the criteria laid out in the 2017 law.
But it has not started accepting applications for four new licenses from potential vendors that may not have participated in the process before. Under the law, health officials have to give special preference for up to two licenses to applicants that “own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana.”
The citrus preference is the subject of one of several marijuana-related court challenges, including the one heard Monday by Administrative Law Judge R. Bruce McKibben.
Lawyers for Del Favero contend the proposed rule is flawed because it “seeks to grant a preference to a broader group of applicants than the statute permits.”
They say the rule gives preference to applicants who own “property” that was once used for citrus-processing purposes but would be used for processing medical marijuana. That’s different than the requirement in state law that preference be given to applicants who own “facilities” that were once used for citrus processing, lawyer Seann Frazier told McKibben.
After the law was passed last year, the orchid business paid $775,000 to purchase property in Safety Harbor that included a facility once used to process orange juice.
Ormond Beach lawyer David Vukelja, who owns 20 percent of Del Favero, told McKibben he and other investors closed on the property because they believed it would give them an edge when applying for a marijuana license.
“We looked at the statute,” Vukelja said. “We took it at face value.”
But according to the Department of Health, there’s nothing in the law that requires a “facility” to be a structure.
“There are three requirements. You have to own it. You have to prove it is or was used for canning, concentrating or otherwise processing. And you have to demonstrate how you will use that,” Courtney Coppola, deputy director of the state Office of Medical Marijuana Use, said Monday.
But Frazier asked if that meant that a tent, erected where a structure previously was used to process citrus, would make an applicant eligible for the citrus preference.
“You’re saying the facility is the tent. It could also be the space it’s in. So how they will convert that space. They could put a building on it,” Coppola said.
“The facility could be dirt. Unimproved dirt, that somebody could promise to put a $1 million processing plant on top of it, they would still meet the citrus preference. Is that true?” Frazier asked.
Coppola agreed.
The health department’s interpretation of that part of the law met with approval from Mecca Farms, a Lantana-based citrus company that intervened in the challenge.
Mecca operates out of a 50,000-square-foot facility that sorts, grades and waxes fruit — processing activities that health officials said make Mecca eligible for the citrus preference.
Mecca’s lawyer, Glenn Burhans, chided Frazier, saying he found it “ironic” that the orchid grower’s attorney suggested the 2017 statute was designed to help a flailing citrus industry.
“He’s right. But that’s not his client,” Burhans said. “Let’s not kid ourselves and think that Del Favero is a longtime citrus company that has fallen on hard times. That’s just not the case.”
Mecca, which began citrus farming in Florida more than three decades ago, is challenging a different part of the rule that deals with the scoring of the applications, which Burhans said gives too much discretion to evaluators.
Del Favero, meanwhile, also is challenging a component of the rule that gives 35 additional points to the two highest-scoring applicants seeking the citrus preference. The extra 35 points — just a 3 percent bonus on top of the total 1,150 points available to all applicants — aren’t enough to make a significant difference, according to Del Favero.
Because applicants can receive up to 100 points for certified financial documents, Vukelja said the orchid company may have had a better chance of getting a license had its owners not invested the money in the old citrus plant.
“We took cash off a balance sheet in order to acquire an asset only to find out it’s a diluted asset that, at best, is worth 35 points out of 1,150 points,” he told The News Service of Florida after the meeting. “I’m sure I’m one of a long list of people who feels they’re being screwed by the Department of Health. Yeah, that thought has crossed my mind.”
Health officials’ definition of facilities “could be anything from a building to dirt,” Vukelja said.
“How dirt is a facility is beyond me,” he said.
McKibben did not indicate how he would come down on the rule challenge, but he agreed with Ed Lombard, a private lawyer who represents the health department, that the law was imperfect.
“The statute, as someone mentioned, was poorly written, and I totally agree,” he said.
http://floridapolitics.com/archives/267926-citrus-preference-spurs-marijuana-license-dispute
Cashless Payment System Rolled Out For Florida Cannabis Dispensaries
By MARK WRAY • JUN 27, 2018
Florida has become the first state in the U.S. to see 100% adoption of a cashless payment solution for the state’s growing medical marijuana market.
The system is called CanPay. The company sees itself as a banking solution for cannabis dispensaries and customers. CEO Dustin Eide spoke on Wednesday’s First Coast Connect about how it works.
“It's free to use, highly secure and allows patients to make purchases without getting cash from ATMs,” said Eide of CanPay, which so far has been adopted in 100% of cannabis dispensaries in Florida.
“CanPay works on the ACH (Automated Clearing House) network instead of Visa or Mastercard services, Those cards have prohibited transactions on their network. So we used a banking network of complying financial institutions to build our own debit network that allows patients to download the CanPay app, set it up and link it directly to their checking account at any U.S. institution. When they go in to the dispensary or for delivery, in the Florida market, they can use CanPay and that money will transfer from the patients checking account to the dispensaries checking account, similar to any other debit card they might use.”
Additional information on CanPay is available here here.
http://news.wjct.org/post/cashless-payment-system-rolled-out-florida-cannabis-dispensaries
Appeals court: Smokable medical marijuana ban stays in place for now
TALLAHASSEE, Fla. (AP) -- A Florida appeals court has reinstated a stay on smoking medical marijuana.
The state's 1st District Court of Appeal has ruled that the hold will remain in effect "pending final disposition of the merits of (a recent) appeal."
The Department of Health appealed to a higher court earlier this month after Leon County Circuit Court Judge Karen Gievers upheld her May 25 ruling that the Florida Legislature's provision banning smokable medical marijuana is unconstitutional.
The state is fighting to keep the ban on smoking medical marijuana, saying it endangers the public health. Plaintiffs, however, say the original intent of the 2016 constitutional amendment that made medical marijuana legal was to allow smoking in private settings, therefore not endangering the public.
Judge Gievers agreed in her ruling, and ordered the state to draw up a plan to allow for smokable medical marijuana, saying the ban was causing undue harm to patients.
This is the second medical marijuana case that the 1st District is taking up. Gievers ruled on April 11 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.
Democrat Nikki Fried officially launches campaign for Agriculture Commissioner
Fried is a lawyer from South Florida who launched a video announcement, which also highlights her centerpiece issue: medical marijuana.
While it was no secret Fort Lauderdale-based lawyer Nikki Fried was going to run as a Democrat for Commissioner of Agriculture, she officially launched her campaign Monday morning with a video announcement.
Fried filed her campaign paperwork last week.
A longtime advocate for expanding patients' access to medical marijuana, her video focused largely on that issue as well as the Department of Agriculture's role in background checks for concealed carry permits.
"There is no clearer example of our broken government than medical marijuana and this deadly weapon," Fried says in the video, over images of an assault rifle being fired in slow motion. "One helps sick and dying Floridians and is over-regulated and the other one is used to terrorize our schools and our communities and is barely regulated at all."
Judge Rips State Agency, Calls for Another Pot Liscense
Judge rips state agency, calls for another pot license
AltMed Florida Announces Opening of its First MÜV™ Medical Cannabis Dispensary in Apollo Beach
SARASOTA, Fla., June 21, 2018 /PRNewswire-PRWeb/ -- AltMed Florida has announced the opening of the first of 25 MÜV™ dispensary locations at 5909 N US Hwy 41, Apollo Beach - strategically located to serve Apollo Beach, the entire Tampa Bay area, including Hillsborough, Pinellas and Manatee county markets.
The Grand Opening is Saturday, June 23rd from 10am-7pm for licensed Florida medical cannabis patients.
Located just a few hundred yards south of Apollo Beach Blvd on US Highway 41, the site has easily accessible roadside visibility and a dedicated parking lot.
"Our first Florida dispensary opening represents a significant milestone for our company and Florida patients," said AltMed Florida CEO John Tipton. "Our MÜV Medical Cannabis line of products already has a wide following in other legal medical cannabis markets, including Arizona, where it has won Five Best of Arizona medical cannabis awards."
MÜV Products offer an extensive variety of delivery options, including several that are unique among current Florida license holders with its patent-pending transdermal gels and metered dose inhalers. Products will come high in CBD or THC as well as CBD/THC balanced formulations. Product categories will include topicals (gels and creams), transdermal patches, metered dose inhalers, distillate vaporizer pens (without any cutting agents), all-natural terpene enriched vaporizer pens, strain specific vaporizer pens, oral sprays, tinctures and an Activated Metered click distillate syringe.
MÜV Products will be sold exclusively in Florida at MÜV dispensaries because, unlike other states, Florida does not allow wholesale of product between license holders - only products that license holders make themselves can be sold in their dispensaries.
"The MÜV retail experience speaks to the role of medical cannabis products in the modern healthcare marketplace," said AltMed Marketing Director Todd Beckwith. "We learned that MÜV customers in other legal medical cannabis states are more apt to take an active role in their healthcare than with traditional medicine. They want to understand the products and the research behind the products, so we have created a layered and informative retail experience."
For more information about the new ADA compliant Apollo Beach MÜV Medical Cannabis Dispensary, including hours and available MÜV products, visit: http://www.altmedflorida.com.
About AltMed Enterprises - Alternative Medical Enterprises, LLC, headquartered in Sarasota, FL and doing business as AltMed Enterprises, is a fully integrated company that brings pharmaceutical industry precision to the development, production and dispensing of medical cannabinoids.
About AltMed Florida, LLC (Plants of Ruskin, LLC d.b.a.) - With a focus on quality and attention to detail, Plants of Ruskin has more than 35 years of experience in providing seedlings to farmers for vegetable and medical product production. Plants of Ruskin founders, the Dickman Family, are 4th generation farmers with a long history of working in conjunction with the University of Florida, including an endowed chair specifically dedicated to plant improvement.
About MÜV™ - The MÜV brand of cannabis infused products was launched in Arizona in 2016 and has quickly gained international attention and recognition. In its first six months alone, MÜV received four best of Arizona medical cannabis awards, including two first prizes for its proprietary extractions that are the basis of all MÜV products.
Forward-Looking Statements - To the extent any statements made in this press release contain information that is not historical, these statements are forward-looking in nature and merely express our beliefs, expectations or opinions. For example, words such as "may," "should," "estimates," "predicts," "continues," "believes," "anticipates," "plans," "expects," "intends," "potential," "strategy" and similar expressions are intended to identify forward-looking statements. Such statements are based on current expectations or estimates and involve a number of known and unknown risks and uncertainties that could cause our actual results, performance or achievements to be materially different from the results, performance or achievements expressed or implied by such forward-looking statements. Factors that could cause or contribute to these differences include, but are not limited to, the following: (i) our ability to implement our business strategy of distributing high quality cannabis products where permissible under applicable law; (ii) availability and cost of additional capital; (iii) our ability to attract, retain and motivate qualified employees and management; (iv) the impact of federal, state or local government regulations; (v) competition in the cannabis industry; (vi) our ability to generate revenues; and (vii) litigation in connection with our business. All forward-looking statements included in this press release and attributable to us or any person acting on our behalf are qualified by this cautionary statement. Forward-looking statements speak only as of the date on which they are made, and, except as required by law, we undertake no obligation to update or revise any forward-looking statement, regardless of whether new information becomes available, future developments occur or otherwise.
Florida judge rules state ban on smokable medical marijuana is unconstitutional
Florida judge rules state ban on smokable medical marijuana is unconstitutional
BY AVERY ANAPOL - 05/26/18 12:17 PM EDT
A Florida judge on Friday ruled that the state’s ban on smokable medical marijuana is unconstitutional.
Leon County Circuit Court 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.”
The Florida health department said that it has appealed the ruling, resulting in an automatic stay, according to The Associated Press.
Medical marijuana advocates praised Gievers’s ruling as a victory for patients.
A spokesman for the Florida Department of Health said in a statement to the AP 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.”
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.The Orlando attorney who challenged the ban on smoking products filed the lawsuit on behalf of two terminal patients who said that smokable medical marijuana was more effective for their conditions than vaping.
Cathy Jordan, a patient in the lawsuit who has Lou Gehrig's disease, said that smoking medical marijuana has helped prolong her life, despite doctors telling her in 1986 that she only had three to five more years to live.
“So many people won’t smoke due to the stigma and it being against the law. This is legitimate medicine,” she told the AP. “This ruling is not just for me but for many other people.”
Full Article: http://thehill.com/homenews/state-watch/389511-florida-judge-rules-state-ban-on-smokable-medical-marijuana-is
Florida's New Pot Rule Could Lead To More Challenges, Delays
State files to block effect of ‘home grow’ ruling
By NEWS SERVICE OF FLORIDA • MAY 25, 2018 via WLRN
Businesses seeking to enter Florida’s pot industry warned state health officials Thursday of numerous flaws in a proposed rule that would expand the number of medical marijuana operators but could lead to further delays in a process that’s already months overdue.
A hearing about the proposed rule came more than seven months after a legislatively mandated Oct. 3 deadline for the Department of Health to issue new medical-marijuana licenses, in what could be one of the country’s largest cannabis markets.
The proposed rule, released more than three weeks ago, set in motion the application process --- considered far behind schedule by many legislators --- for four highly sought-after licenses.
But the issues identified Thursday signaled possible legal or administrative challenges that could further postpone the issuance of licenses.
Lawmakers ordered the new licenses after voters approved a 2016 constitutional amendment that broadly legalized marijuana as a treatment for patients with debilitating medical conditions, including cancer, HIV/AIDS, post-traumatic stress disorder, Parkinson’s disease, ALS and multiple sclerosis.
Under a 2014 law that allowed limited types of medical cannabis, the Department of Health had awarded some licenses before the constitutional amendment passed. But the Legislature last year gave state health officials until Oct. 3 to grant 10 new licenses to marijuana operators who meet certain requirements, including applicants who were involved in litigation prior to January 2017.
In marijuana legislation this year, lawmakers did away with the Oct. 3 deadline --- months after it had passed.
The state thus far has issued licenses to 13 operators, including a handful of new operators who met the criteria laid out in the 2017 law, but has yet to begin accepting applications for four new licenses to potential vendors who may not have participated in the process before.
The law requires one of the new licenses to go to a black farmer who was involved in federal litigation about discriminatory lending practices.
And the law requires health officials to give preference for up to two licenses to applicants that “own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana.” The citrus preference is the subject of one of several marijuana-related court challenges.
During about an hour of public testimony Thursday, most of the complaints were focused on the citrus-related language in the proposed rule.
Lawyer Seann Frazier pointed out that the proposed regulation substituted the word “property” for “facilities,” which, he said, “adds vagueness” and may broaden the language in the statute, something the agency is not permitted to do.
The proposed rule would give the two highest-scoring applicants who are eligible for the citrus preference an extra 35 points, in addition to a total of 1,150 possible points available to all applicants. The 35 extra points amount to just a three percent bonus, Frazier said.
“We respectfully suggest that more weight should be given to the citrus preference” to “avoid a situation where you issue licenses and no one really had a meaningful exercise of the preference,” Frazier, who represents Tampa-based Louis del Favero Orchids, said.
Office of Medical Marijuana Use Director Christian Bax asked Frazier if he had a suggestion about how many points the citrus preference should be worth.
“I suggest it should be a lot higher preference, one that would make a difference that a citrus-qualifying applicant will actually receive a license,” said Frazier, whose client is interested in seeking one of the citrus-preference licenses.
Other speakers complained that page limits imposed in the proposed rule could prevent applicants from providing necessary information, such as how many dispensaries they plan to open or information about human-resources policies.
“We’ll certainly take all of these concerns into consideration. We’re also going to wait for those written comments that are going to be submitted over the next seven days,” Bax told reporters after the meeting. “If the department believes that a change needs to be made, then it will be made. If not, then we’ll continue to move forward with this process.”
Bax had blamed delays in the rollout of the rules on litigation involving the black farmer provision in the law --- which has now been resolved --- and Hurricane Irma.
Following Thursday’s hearing, the public has a week to submit comments on the proposed rule and 10 days to file administrative challenges.
If no challenges are filed, the agency could begin accepting applications by mid-July.
But that prospect is unlikely, industry insiders believe.
“There may be some people in the room that want to slow this down because they’re not ready to apply yet,” said Jeff Sharkey, a lobbyist and founder of the Medical Marijuana Business Association of Florida.
Legal and administrative challenges have become part of the state’s medical-marijuana odyssey.
“If the scoring happens in a certain way, and somebody disagrees with it … then there’s probably bound to be some protests. It’s a very litigious process here, after the awards are made,” Sharkey said.
The proposed application-process rule is one of a series of regulations that have been harshly criticized by a legislative committee whose job it is to ensure that agency’s rules correctly implement state laws.
Bax has been under fire for months for refusing to respond to the Joint Administrative Procedures Committee’s objections to his office’s proposed and emergency regulations.
Many of the problems identified by the committee were characterized as an unauthorized regulation that “enlarges, modifies or contravenes” the 2017 law.
For example, the law requires health officials to issue four more licenses once the number of eligible patients in a statewide database reaches 100,000, and an additional four licenses after another 100,000 patients are registered. One of the health department’s emergency rules allows Bax to issue four “contingent” licenses to applicants who are not selected in the initial round of evaluations, something the oversight committee says the Office of Medical Marijuana Use is not authorized by law to do.
In March, Department of Health General Counsel Nichole Geary told the committee’s executive director, Kenneth Plante, that the agency was “working diligently to move forward with new rules in light of the objections raised by the committee” so that health officials could begin accepting applications in the spring.
But the rule proposed on May 1 ignored several of the committee’s objections, Plante pointed out in a letter this month, asking if it was an oversight or if the department refused to make the modifications.
On Thursday, Bax told reporters the health department is still reviewing the committee’s letter.
“There’s always give and take” between the committee and state agencies, Bax said, adding that “we certainly respect the Legislature’s prerogative to provide input on this process and we’re looking forward to continuing our work with them.”
But Plante told The News Service of Florida state agencies and the legislative oversight committee “are all part of a system” aimed at ensuring that the rules implementing the statute go into effect.
“So if their (the health department) position is they’ve got their job, we’ve got ours, and never the twain shall meet, I think they overlap. We’re supposed to be working together to make sure this is a good product. That’s our goal,” he said.
http://wlrn.org/post/floridas-new-pot-rule-could-lead-more-challenges-delays
State files to block effect of home grow ruling
But Redner’s attorney says the state simply continues to argue – also erroneously – that the state’s constitutional amendment on medical marijuana doesn’t mean what it says.
The department filed a response Friday to Redner’s request to the state’s Supreme Court to allow him to immediately pursue growing and juicing his own marijuana.
He won a decision, now under appeal, from Tallahassee Circuit Judge Karen Gievers last month that Redner — a 77-year-old lung cancer survivor — has an immediate right to ‘home grow.’ His doctor says juiced marijuana is the best way to keep his cancer in remission, though the state countered he “also acknowledged the lack of scientific research to support this claim.”
But the state appealed to the 1st District Court of Appeal, which reinstated a delay of the effect of the ruling while the case is under review there. Redner asked that court to expedite the appeal.
The Health Department regulates medicinal cannabis through its Office of Medical Marijuana Use.
In its response, the department’s lawyers in part argued that under the “definition of ‘medical use,’ a qualifying patient is not entitled to cultivate (i.e., grow) or process marijuana because the words ‘cultivate’ and ‘process’ are not included” in the constitutional amendment approved by voters in 2016.
“Instead, the right to cultivate and process medical marijuana is reserved for” authorized medical marijuana providers, it says.
But the state’s definition of “cannabis” says it’s “all parts of any plant of the genus Cannabis, whether growing or not (and) the seeds thereof,” which Redner says bolsters his case.
While he awaits the appeal, he’s also asking Gievers to order the state to reimburse his legal costs — including $16,000 for PowerPoint presentations — because he won the lawsuit. The state later asked that the costs request be held “in abeyance” pending the appeal.
Health spokesman Devin Galetta has said the agency “fully expects Judge Gievers’ ruling to be reversed on appeal.”
Luke Lirot, Redner’s attorney, said he “disagrees with the department’s arguments” and said the stay should be lifted.
“We have an important constitutional issue that will invariably be before them, coupled with (Redner’s) emergent medical condition,” he said. “… Time is of the essence.”
Redner, owner of the Mons Venus nightclub, also is a vegan. Gievers’ order limits him to no more than eight ounces or raw marijuana daily, based on his doctors’ recommendations. It applies only to Redner and allows him to “possess, grow and use marijuana” only for juicing.
Friday’s full 22-page filing is here.
http://floridapolitics.com/archives/264074-state-block-home-grow
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.