TALLAHASSEE — Arguing that Florida legislators violated voters' intent when they prohibited smoking for the medical use of marijuana, the author of the state's medical marijuana amendment sued the state on Thursday to throw out the implementing law.
John Morgan, the Orlando trial lawyer who spearheaded and financed the successful campaign to make medical access to cannabis a constitutional right, filed the lawsuit in Leon County Circuit Court Thursday morning, asking the court to declare the law implementing the 2016 constitutional amendment unenforceable.
"Inhalation is a medically effective and efficient way to deliver Tetrahydrocannabinol (THC), and other cannabinoids, to the bloodstream," wrote Morgan and his lead lawyer, Jon Mills, a constitutional lawyer and former Democratic House speaker, on behalf of Florida for Care Inc., the non-profit formed to promote the initiative.
"By redefining the constitutionally defined term 'medical use' to exclude smoking, the Legislature substitutes its medical judgment for that of 'a licensed Florida physician' and is in direct conflict with the specifically articulated Constitutional process," the lawsuit states.
More than 71 percent of Florida voters approved the amendment in November 2016, the largest percentage of support a medical marijuana initiative has received by popular vote, Morgan said.
The amendment allowed the Legislature to address smoking — but only by prohibiting it in public places, he said, adding that anything more violates the intent of the Constitution.
"If something is not allowed in public, it is allowed in private," Morgan said at a press conference outside the Leon County Courthouse. "It's as clear to all of you as it is to any first grader taking first-grade logic."
The lawsuit argues that the amendment does not prohibit smoking but instead contemplates that smoking would be authorized because it allows the state to prohibit smoking of marijuana for medical purposes in public places.
Morgan pointed to document he and the authors of the amendment drafted which was intended to outline for future courts their intent when they proposed the language. He said that during the campaign he frequently debated with sheriffs who warned that the amendment would lead to marijuana smoking in public places.
"Time and time again I would refer them back to this intent language," he said.
"The statement unambiguously says that smoking medical marijuana in a private place in compliance with the provisions of the amendment is legal," the suit states.
However, the Florida Legislature passed, and Gov. Rick Scott signed, a provision that defines "medical use" to exclude "possession, use or administration of marijuana in a form for smoking." Morgan's lawsuit claims that provision "redefined and narrowed the definition of marijuana in direct conflict" with the Constitution.
If the court agrees and invalidates the law implementing the amendment, the task of writing the rules for implementing the new amendment will fall to the Florida Department of Health.
The legislation allows for edibles and "vaping" as a delivery system for THC and cannabinoids. It also provided funding for the Moffitt Cancer Center in Tampa to conduct research into the uses and effectiveness of medical marijuana.
But the House sponsor of the law, Rep. Ray Rodrigues, R-Estero, called smoking a "backdoor attempt at recreational" use of marijuana.
On Thursday, Rodrigues said he was certain courts would uphold the law.
Other states that permit smoking of medical marijuana made it clear in the proposals that went before voters, he said.
"Their constitutional amendments declared that it could be smoked and that it could be self-grown. If that's what John Morgan wanted for Florida, he should have declared it in the amendment," Rodrigues said.
Florida law-enforcement officials, including sheriffs and police chiefs, encouraged the ban on smoking, saying an outright ban on "whole flower," or what is more commonly known as "bud," would make it easier to identify people who are breaking the law.
Sen. Rob Bradley, R-Fleming Island, the Senate sponsor, called the measure, which passed during the June special session, "patient-first legislation" that "will expand access to this medicine, while ensuring safety through a unified regulatory structure for each component of the process from cultivation to consumption."
But Morgan, who uses the hashtag #NoSmokeIsAJoke, argues that the legislative claim has been a "bogus argument from Day 1," and if they were truly interested in keeping the public safe from smoking, they would have taxed tobacco "to the hilt."
Instead, he said, their arguments enforce what he believes is a quiet campaign against marijuana fueled by "Big Pharma," which has capitalized on the explosion of opiod abuse.
"I don't know what drives these politicians other than money and donors,'' he said.
He said that in the next few weeks he will add to the lawsuit patients suffering from ALS disease, epilepsy and other ailments for whom smoking marijuana is the best way to treat their symptoms.
The lawsuit cites a 2012 study published in the Journal of the American Medical Association and funded by the National Institute on Drug Abuse that found smoking marijuana does not impair lung function and, when not used heavily, was shown to increase lung capacity.
"Despite decades of marijuana being used for smoking in the United States, there have been no reported medical cases of lung cancer or emphysema attributed to marijuana," the lawsuit said.
Smart Approaches to Marijuana, a non-profit, non-partisan organization that promotes federal funding of marijuana research, blasted the lawsuit as "nothing more than a smokescreen designed to bypass the FDA and open the doors to a new for-profit, retail commercial marijuana industry in Florida."
"There's a reason why every single major medical association opposes the use of the raw, smoked form of marijuana as medicine: smoke is not a reliable delivery system, it's impossible to measure dosage, and it contains hundreds of other chemical compounds that may do more harm than good," said Dr. Kevin Sabet, president of the group, in a statement.
Calvina Fay, executive director of the anti-marijuana group Drug Free America Foundation, also criticized the lawsuit.
"While not perfect, the legislation succeeded in finding a balance that protects the public health and safety of all Floridians while allowing the legal access to marijuana that was approved by voters,'' she said in a statement.
Morgan counters that those arguments miss the point.
"If you are on your death bed, or on your bed in debilitating pain, who really cares if you smoke?" he said. He warns that by aggressively working against the implementation of what voters supported, legislators have inadvertently "kicked the door wide open for recreational marijuana use in Florida."
If they don't allow for smoking as a medical use, the newly formed industry will "bankroll a constitutional amendment to put recreational marijuana on the ballot...and I believe it will pass with 60 percent of the vote,'' he said.
The News Service of Florida contributed to this story. Contact Mary Ellen Klas at [email protected] Follow @MaryEllenKlas