Judge Asked To Lift Stay In Marijuana Smoking Case

May 31, 2018

The battle over whether Florida patients should be able to smoke medical marijuana continues to flare.

After a Leon County circuit judge ruled last week that smokable marijuana is allowed under a 2016 constitutional amendment, plaintiffs in the case are asking her to lift a stay that was automatically imposed when the Florida Department of Health appealed the ruling.

The group People United for Medical Marijuana and other plaintiffs, including patients with Lou Gehrig’s disease and HIV, filed a motion late Tuesday asking Circuit Judge Karen Gievers to clear the way for her ruling on smokable marijuana to take effect. The motion pointed to the possibility of “irreparable harm” for the patients, Cathy Jordan and Diana Dodson, if the stay remains in effect during the Department of Health appeal.

“The automatic stay will prolong the period that Ms. Jordan, Ms. Dodson and all Floridians like them with debilitating medical conditions who would benefit from smokable medical marijuana are unable to receive the best available treatment for them,” the motion said. “Without any corresponding benefit to the defendants (the Department of Health), the automatic stay increases the pain and suffering of the individual plaintiffs and denies them access to a constitutionally permitted medical treatment. This is the irreparable harm that plaintiffs will suffer if the automatic stay is permitted to remain in effect.”

Gievers’ ruling Friday overturned part of a law passed year by the Legislature that barred patients from smoking medical marijuana. The law was designed to carry out the 2016 constitutional amendment that legalized marijuana for a wide range of patients, but the smoking ban quickly drew a legal challenge.

The constitutional amendment did not expressly authorize smoking pot and gave the state the authority to enact regulations about medical marijuana use.

But, agreeing with the plaintiffs, 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.

The Department of Health, however, immediately filed a notice of appeal at the 1st District Court of Appeal. The appeal led to an automatic stay, which is common in cases involving state agencies.

With marijuana able to be used in other ways, lawmakers last year said the smoking ban was needed because smoking can cause health problems. In appealing the case, the Department of Health said Gievers’ ruling “goes against what the Legislature outlined when they wrote and approved Florida’s law to implement the constitutional amendment that was approved by an overwhelmingly bipartisan majority.”

Gievers on Wednesday scheduled a hearing for 9 a.m. Monday to address the motion to vacate the stay.

If another pending medical-marijuana case is any indication, the plaintiffs could have difficulty getting the stay lifted.

In the other case, Gievers ruled last month that Tampa businessman Joe Redner should be able to grow his own marijuana as part of treatment to prevent a relapse of lung cancer. After the state appealed the decision, Gievers vacated an automatic stay. But the 1st District Court of Appeal then reinstated the stay.