In a second stinging blow to Gov. Rick Scott and the Florida Legislature, a Leon County Circuit Court judge Tuesday lifted an automatic stay on her ruling that the state's ban on patient access to the smokable form of medical marijuana is unconstitutional.
Judge Karen Gievers gave the state until June 11 to put into action a process that will make smokable marijuana available to patients at marijuana dispensaries throughout the state. She said that the state's attempt to delay the implementation of her May 25 ruling created irreparable harm to patients, particularly two women who challenged the law which prevents them from being prescribed smokable marijuana to treat their chronic diseases.
"First, they cannot legally access the treatment recommended for them,'' Gievers wrote in the four-page ruling. "Second, they face potential criminal prosecution for possession and use of the medicinal substance."
Diana Dodson of Levy County, who has HIV and neuropathy, and Cathy Jordan of Manatee County, who has Lou Gehrig's disease, testified that the only cannabis delivery system that works for their symptoms is smoking, and they are alive only because they break the law and smoke marijuana.
The Florida Department of Health, which is charged with regulating medical marijuana in the state, said it was reviewing the ruling and would not answer questions about whether it will move forward with rules related to smoking marijuana. Instead, the agency released a statement focused on the existing law, which Gievers has ruled was unconstitutionally inconsistent with voters' intent.
"The use of medical marijuana is outlined in state law, which was passed by an overwhelmingly bipartisan majority of the Florida legislature,'' said Devin Galetta, DOH spokesperson. "Our focus remains with ensuring that patients have access to medical marijuana, and the Florida Department of Health has made significant progress in making this treatment available. In fact, there are more than 117,000 patients who have access to medical marijuana and over 1,300 doctors are licensed to order this treatment."
Gievers' first ruling was that the state law prohibiting 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.
Scott and the Department of Health appealed the ruling, prompting an automatic stay. The amendment's supporters, led by Orlando attorney John Morgan, then appealed the stay.
Gievers concluded that "there is no likelihood of success" that the state will succeed in its appeal.
In a one-hour hearing in Leon County Circuit Court on Monday, 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 smokable marijuana — and that process could take months.
"Nobody at this time can go to a medical marijuana treatment center and obtain smokable marijuana. ... There is no lawful medical marijuana that can be smoked,'' said Karen Brodeen, senior assistant attorney general who argued for the state.
She also argued that the public will be confused because the state has not authorized the rules to regulate smokable marijuana.
Gievers said "there is no evidence the defendants [the state] will suffer harm if the stay is vacated. Lifting the stay preserves the status quo by returning the law to its previous state as it existed following the 2016 adoption" of the constitutional amendment.
She cautioned, however, that lifting the stay means that smokable marijuana is legal only for those who comply with the provisions of the amendment. They must have a qualifying debilitating disease, be registered as part of the patients registry and be under a doctor's care.
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 the two patients who treat their debilitating diseases with marijuana testified in the one-day trial before Gievers that smoking is the only form that works for them.
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."
Morgan blasted the governor in a series of Tweets and urged him to drop the appeal.
"#SlickRick please follow the law & the will of 72% of the people," Morgan wrote on Twitter Tuesday. "Everyday you waste taxpayers' money w/ this frivolous appeal sick people, veterans, cops, firefighters & cancer patients suffer!
"Where is your compassion man?
“There is no likelihood of success by the defendants."
In a series of Tweets over the last two days, Morgan said that the governor's attempts to go against the majority of voters "will be a stain on @ScottforFlorida forever." He said it was "cruelty and meanness is beyond the pale" and that the Department of Health's delay "in getting #MedicalMarijuana cards has been intentional. No one could be that inept!"
Mary Ellen Klas can be reached at firstname.lastname@example.org and @MaryEllenKlas