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Marijuana Home-Grow Battle Goes To Supreme Court

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Daylina Miller/WUSF News
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Arguing that “emergency relief is clearly warranted and urgently needed,” attorneys for a Tampa businessman are asking the Florida Supreme Court to step into a legal battle and allow the lung-cancer patient to grow medical marijuana for his own use.

The filing late Tuesday afternoon by attorneys for Joseph Redner, who made his fortune as a strip-club owner, is the latest move in a dispute about patients being able to grow marijuana under a 2016 constitutional amendment that broadly legalized the use of medical cannabis.

A Leon County circuit judge last month ruled that the Redner should be able to grow marijuana for a treatment known as “juicing” to try to prevent a relapse of lung cancer. But the Florida Department of Health appealed to the 1st District Court of Appeal, which has blocked the circuit judge’s ruling from taking effect while the case moves forward.

Using a relatively unusual legal procedure, Redner’s attorneys Tuesday asked the Supreme Court to lift a stay imposed by the appeals court and allow Redner to grow his own pot. The 36-page filing, which asks the Supreme Court to invoke what is known as its “all writs” authority in the case, contends that the 2016 constitutional amendment allows patients to grow marijuana and that Redner will be harmed if the stay remains in effect.

“Contrary to the department’s claims, the right to possess a growing plant is indeed enshrined in the Constitution,” the filing said. “While the constitutional amendment allows for the creation of rule-making authority, and the department is mandated to establish an ‘amount’ a patient may possess, nothing can limit the type of medical marijuana to be used, and nothing in any grant of authority provides the Legislature or the department the power to deviate from or contradict the will of the people as clearly embraced by the amendment.”

The filing also said the dispute will end up the Supreme Court eventually, no matter how the appeals court rules on the underlying issues.

“It is not only likely, but guaranteed that the either petitioner (Redner) or respondent (the Department of Health) will invoke this (Supreme) Court’s discretionary jurisdiction as soon as the First District issues its opinion assessing the merits” of the circuit judge’s ruling, the filing said.

The appeals court in a May 1 decision on the stay appeared to be skeptical of Redner’s arguments about growing marijuana.

“After this panel’s preliminary review of the full wording of the constitutional amendment, we determine that appellee (Redner) did not sufficiently demonstrate a likelihood of success on the merits as required to justify vacating the automatic governmental stay,” the appeals court’s order said. “However, we do not intend to preclude full review of the issues on appeal by the merits panel (of the appeals court).”

But in the filing Tuesday, Redner’s attorneys said the stay should be lifted as the underlying issues continue to be debated.

“As it stands now, the reinstatement of the automatic stay remaining in force during this appeal will cause Redner to suffer definite, irreparable, and irremediable harm, both to his health interests, but also to the important constitutional interests already recognized by the trial (circuit) court,” the filing said. “In this action, the trial court has observed that Redner is suffering irreparable harm by not having access to the route of administration for the medical use of marijuana recommended by his doctor, and what could be more of a compelling reason than a medical need coupled with a Constitutional right.”

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