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Smokable medical pot on hold after appeals court sides with Florida

The 1st District Court of Appeal’s decision means that patients will continue to be barred from legally smoking medical marijuana for the foreseeable future.
Cathy Jordan inhales a marijuana joint in 2013 to slow the progression of ALS. Florida doesn't allow the smoking of medical marijuana. [CHERIE DIEZ | Tampa Bay Times]
Cathy Jordan inhales a marijuana joint in 2013 to slow the progression of ALS. Florida doesn't allow the smoking of medical marijuana. [CHERIE DIEZ | Tampa Bay Times]
Published Jun. 18, 2018

In a widely expected move, an appellate court Monday refused to lift a stay on a Tallahassee judge's ruling that would allow patients to smoke medical marijuana if their doctors approve it.

The 1st District Court of Appeal's decision means that patients will continue to be barred from legally smoking medical marijuana for the foreseeable future — at least until the appellate court issues a final ruling on the merits of the case.

Leon County Circuit Judge Karen Gievers last month sided with Orlando trial lawyer John Morgan and a group of plaintiffs who filed a legal challenge after the Legislature included a ban on smoking in a 2017 law carrying out a constitutional amendment broadly legalizing medical marijuana.

Gievers agreed that the text of the constitutional amendment, approved by 72 percent of Floridians in 2016, allows patients to use any form of marijuana as their treatment.

Health officials, who argued that the amendment did not expressly authorize smoking and that the state had broad leeway to regulate medical marijuana use, immediately filed an appeal, which put an automatic stay on Gievers' May 25 ruling.

On June 6, Gievers vacated the stay, prompting the state to ask the appellate court to keep it in place. The court sided with the state on Monday, saying that Gievers' order vacating the stay was "quashed" and that the hold "shall remain in effect pending final disposition of the merits of this appeal."

Whether patients should be able to smoke marijuana if their doctors recommend it has set off a partisan firestorm, with Morgan — a political rainmaker and registered Democrat who largely bankrolled the 2016 constitutional amendment — stirring the political pot.

Morgan told The News Service of Florida he had expected the appellate court to keep Gievers' ruling on hold.

"Not surprised. Rick Scott could end the appeal today. It will cost him his Senate bid. The makers of opioids are cheering him on," Morgan wrote in an email Monday.

Morgan has repeatedly asked Scott to drop the appeal, warning that the governor's opposition to smokable medical marijuana will alienate moderate Republicans and independents in the governor's quest to oust U.S. Sen. Bill Nelson in November.

Nelson, a Democrat, recently came out in support of doctor-ordered smokable marijuana for sick patients, as have each of the Democratic candidates seeking to replace Scott as governor.

In her June 5 order lifting the stay, Gievers wrote that plaintiffs Cathy Jordan, a Lou Gehrig's disease patient who credits smoking marijuana with saving her life, and Diana Dodson, who has neuralgia associated with HIV, would suffer without having access to smokable marijuana.

"Individual patients Jordan and Dodson are exposed to irreparable harm on two fronts. First, they cannot legally access the treatment recommended for them. Second, they face potential criminal prosecution for possession and use of the medicinal substance," the judge wrote.

On the other hand, "there is no evidence the defendants (the state) will suffer harm if the stay is vacated," the judge wrote.

"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 medical marijuana rights" and before the 2017 law went into effect, she added.

But during a hearing before Gievers, Assistant Attorney General Karen Brodeen argued that there was no hurry for the stay to be lifted, in part because of a lengthy state rulemaking process. Smokable pot "won't be available for a long time," if the courts ultimately decide that it is legal, Brodeen said.

"There's no irreparable harm here. Nobody, at this time, can go to a medical-marijuana treatment center and purchase smokable marijuana. That's going to take several months down the road, after an order that requires it to be available," she said.

The legal tangle over smokable medical marijuana is one of at least eight marijuana-related administrative or legal challenges about the state's burgeoning cannabis industry, which some experts estimate could exceed $1 billion in revenue by 2020.

RELATED COVERAGE: Florida medical marijuana judge has history of being in spotlight

Judge halts Florida ban on smoking medical marijuana

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