Leon County Circuit Judge Karen Gievers said Monday she will decide quickly on whether to lift an automatic stay on her ruling declaring that the state's ban on smoking medical marijuana is unconstitutional
If she lifts the ban, it will force Gov. Rick Scott and state regulators to move forward on rules they have spent the last two years trying to delay.
But, even "though the department hasn't done what it was supposed to within six months of what the voters ordered," Gievers suggested she might delay her stay for a limited amount of time to give the Department of Health time to start the process to authorize smoking as a legal form of medical marijuana consumption.
Gievers ruled on May 25 that a state law that prohibited patients who get a doctor's permission to be treated with medical marijuana from smoking was "overreaching" and violated the 2016 constitutional amendment that legalized marijuana for a wide range of ailments.
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Scott and the Florida Department of Health appealed the ruling, prompting an automatic stay. The amendment's supporters, led by Orlando attorney John Morgan, then appealed the stay.
In a one-hour hearing in Leon County Circuit Court, attorneys for the state argued that Gievers should not lift the stay because smoking is not allowed in Florida because the legislature banned it. They said that if patients were allowed to smoke it they couldn't obtain it legally because the state hasn't set up rules to lawfully cultivate, distribute and sell smoke-able marijuana — and that process could take months.
"Nobody at this time can go to a medical marijuana treatment center and obtain smoke-able marijuana. ... There is no lawful medical marijuana that can be smoked,'' said Karen Brodeen, senior assistant attorney general who argued for the state.
She urged Gievers not to lift the stay, arguing that the public will be confused because the state has not authorized the rules to regulate smoke-able marijuana.
"They will subjectively say, 'Now I can smoke marijuana because I have one of these triggering conditions,' even thought they never went to a doctor,'' she said.
But Jon Mills, attorney for the marijuana advocates who filed the lawsuit against the state last July, dismissed the state's claim. Just because the state now illegally prohibits patients from asking doctors for permission to treat themselves through smoking medical marijuana doesn't mean the state should be allowed to continue to do it, he said.
"That could be seen as blowing smoke,'' he said, after the hearing. "You have to have a certification. You have to have a doctor prescribe it and today's order would put the process in motion to allow that to happen."
Florida voters approved Amendment 2 with 71 percent voting yes, but lawmakers limited its scope by directing patients who qualify to obtain medical marijuana to use only oils, sprays, tinctures, vaping and edibles. Lawmakers argued that smoking as a method for medical treatment would be a "backdoor attempt" at allowing recreational use.
But two patients who treat their debilitating diseases with marijuana — one with ALS and the other with HIV — testified in the one-day trial before Gievers that smoking is the only form that works for them.
Cathy Jordan, 68, who has ALS, testified that to treat her disease she breaks the law and grows the plants in her backyard.
"In '86, I was given three to five years to live and I'm still here,'' she said, adding that smoking is the only form her system can tolerate. "It just makes my life a lot more bearable."
Mills argued that delaying the ruling while the state appeals it would do irreparable harm to them and other patients. He submitted documents that show that there are 1,450 ALS cases in Florida, according to the National Institutes of Health; 10,000 new cases of cancer each year and there have been 17,000 deaths in Florida because of Parkinson's disease — all ailments that can be treated with medical marijuana.
Morgan, who financed the lawsuit and much of the amendment campaign, urged Scott and Attorney General Pam Bondi to drop the appeal. He said that, depending on the First District Court of Appeal's response to the state's appeal, he will seek to expedite it to the state Supreme Court to force a resolution more quickly.