Florida Politics

Repeal of medical pot smoking ban clears first hurdle, but not without a fight

St. Petersburg Sen. Jeff Brandes’ closely watched bill that would repeal a ban on smoking medical marijuana nearly died in a Florida Senate committee hearing on Monday.

But after the vote tied and was then reconsidered, it cleared its first hurdle Monday with a tight 6-4 vote.

The Senate Health Policy Committee passed SB 182, which in addition to legalizing smoking medical marijuana also deletes a provision that prohibits a medical marijuana treatment center from selling products like pipes, bongs or rolling papers and also specifies that medical marijuana cannot be smoked in public on any form of public transportation or in a school bus, car, plane or motorboat.

Brandes’ bill passed with a controversial amendment filed by Committee Chair Gayle Harrell, R-Stuart, which requires doctors to explain risks associated with smoking to patients when writing an order. It also requires that patients without a terminal condition can only smoke if the doctor and a second, unrelated physician says it’s the only good means of administering the drug.

Sen. Jeff Brandes Kristen M. Clark kclark@miamiherald.com

Brandes, also a Republican, disagreed, urging senators to vote against her amendment. When they didn’t, he stood at the podium with a long face.

“If I was on your side, I would vote against this bill. The challenge that I have is that my name’s on it,” he said. “I understand that patients right now would be better off with no bill than this bill. This is a bill that I believe will have to be significantly amended before I can recommend this to the Legislature and look people in the eye.”

After the vote, he sped out of the meeting room.

“I can guarantee you that there will not be a bill with my name on it that hits the Senate floor that I don’t believe is within the parameters of the constitution,” he said after the vote Monday night. “I don’t believe that the bill, as amended, meets that standard.”

The senators who voted no cited Harrell’s amendment as the reason.

Sen. Laurie Berman, D-Boynton Beach, who originally supported the bill, said the amendment’s requirement of a second opinion tainted her view.

“I don’t know if I even agree that there needs to be a second opinion at all,” she said.

Sen. Lauren Book, D-Plantation, who voted no, pointed out that the cost of a doctor’s visit can be $250 to $500. A second opinion would raise the cost of treatment, which is already both expensive and uninsured.

“Like Senator Berman, I came in here today to vote yes on the bill. This bill will further limit access to patients who need it,” said Book, who said she spent time at several medical marijuana treatment centers this summer. “I watched people leave because they couldn’t afford it. Not because they didn’t need it. I think we are putting up roadblocks.”

Senator Aaron Bean, R-Jacksonville, who voted yes, described marijuana as a “dangerous and addictive” drug, and said senators must treat it gingerly as they move forward with a vote. He compared marijuana to opioids, warning senators that an epidemic is imminent if the legislation is not treated with care.

“This is a new ballgame … It’s so scary, where we are,” he said. “We have to be cognizant that everyone wants to paint marijuana as a glamorous drug, but it scares me. It scares me for the future of Florida that it’s out there.”

In 2016, about 71 percent of Floridians voted on a constitutional amendment to legalize medical marijuana. While the 2017 bill signed into law by Gov. Rick Scott legalized access to the drug in pill, oil, edible and vape form, it made smoking it illegal. In addition to the ban on smoking, the law also capped the number of medical marijuana licenses and the number of dispensaries in the state.

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The provision, which became known as the “smoking ban,” was challenged in circuit court in July 2017. In its complaint, People United for Medical Marijuana, Inc., argued the smoking ban altered the definition of “marijuana” and by banning smoking in public, implicitly authorized smoking marijuana in a private place.

His bill is the second of its kind filed since Gov. Ron DeSantis tasked the Legislature with amending Florida law to allow smoking medical marijuana. If legislators don’t by March 15 — 10 days after the start of the annual session — the governor said he will do so with litigation.

The first bill, filed by Fort Lauderdale Democrat Sen. Gary Farmer Jan. 17, also aims to expand access to medical marijuana.

Brandes said he now feels “50-50” on whether the Legislature will have a bill to DeSantis by the March deadline.

“What we saw today is that there’s disagreement about what a pathway forward looks like,” he said.

In May 2018, Leon County Circuit Judge Karen Gievers declared the smoking ban unconstitutional, but the Department of Health appealed the ruling later that month.

After DeSantis announced his intent to drop the appeal should the Legislature not act to remove the smoking ban, both parties filed a motion to stay the appeal until March 2019.

The smoking ban repeal has gotten the support of Senate President Bill Galvano of Bradenton, who said last week that he is confident the Legislature will get something to the governor’s desk by the March 15 deadline. In the other chamber, however, there’s less urgency to repeal. No bills have yet been filed, and House Speaker José Oliva criticized smoking medicinal marijuana as an option.

At an Associated Press pre-legislative session meeting, Oliva said efforts to legalize smokable medical marijuana are just “some cover” for getting access to recreational marijuana.

“I’ve been in the smoke business my entire life and I’ve never heard anyone say it’s good for you,” the Miami Lakes Republican and cigar company CEO said then. “I think that’s a legitimate concern.”

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Several states, including New York, Ohio, Minnesota, and Pennsylvania, don’t allow smoking medical marijuana but allow vapor, like in Florida. Other states allow smoking but include restrictions on where you can smoke it (i.e. public spaces, condominiums, apartment buildings where landlords don’t allow it).

In addition to a ban on smoking, the 2017 amendment set an initial cap of 25 retail storefront dispensaries for each marijuana treatment centers. The cap, which is now at 30, increases as the number of card-holding patients goes up.

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Trulieve, a Quincy-based treatment center, challenged that part of the law in court, arguing the restriction unfairly penalizes and restricts providers.

On Friday Grievers again ruled in Trulieve’s favor, rejecting the part of the law that caps the number of dispensaries.

She wrote in her 22-page ruling that the cap “erects barriers that needlessly increase patients’ costs, risks, and inconvenience, delay access to products, and reduce patients’ practical choice, information, privacy and safety.”

More than 176,000 patients across the state are qualified to receive medical marijuana to treat illnesses like multiple sclerosis, Crohn’s disease and epilepsy. There are roughly 2,000 doctors who can prescribe medical marijuana and 93 locations that can dispense it.

Brandes called the result of smoking medical marijuana the “entourage effect,” meaning that when a patient smokes the whole flower — not just the oils or a patch — the effects come earlier.

“This type of usage has a different effect on the body,” he said.

Brandes said later this year he also hopes to file a bill that would expand the list of conditions that would qualify a patient for treatment and create a way to replace opioids with medical marijuana.

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