Florida Circuit Court Judge Rules Ban on Smoking Medical Marijuana is Unconstitutional

On May 25, 2018, Leon County Circuit Court Judge, Karen Gievers, ruled that the states ban on smoking medical marijuana is unconstitutional. However, the celebration did not last long as the Department of Health (“DOH”) appealed the ruling only ten minutes after it was announced. Unfortunately, this prompted an automatic stay. Although this means a longer battle on this specific issue, this was a great victory for the cannabis industry as it was a step in the right direction.

In her ruling, the Judge specifically stated patients in Florida “have the right to use the form of medical marijuana for treatment of their debilitating medical conditions as recommended by their certified physicians.” People United for Medical Marijuana; Florida For Care, Inc.; Diana Dodson; and Catherine Jordan, v. Florida Department of Health, Order and Final Judgment, Case No. 2017-CA-1394 at 22.

The Department has taken the position that the ruling goes against what the legislature outlined when they wrote and approved the law to implement the constitutional amendment that was approved. However, many do not agree with this as the language of the 2016 constitutional amendment specifically stated that the legislature had the right to ban smoking in public areas but not cultivation, sale, or use across the board.

Then, a year after the constitutional amendment, the Florida Legislature passed laws that barred the sale of smoking products due to health risks. The laws allowed patients to use medical cannabis only by vaping, edibles, oils, sprays, and tinctures.

Shortly after Governor Rick Scott signed this bill into law, banning smoking products, cannabis advocate and attorney John Morgan filed suit challenging the ban as unconstitutional. Florida For Care along with two patients joined Morgan in his claim against the Department of Health and the Florida legislature.

It will be interesting to follow the development of the appeal and we will keep you updated.

If you are in the cannabis industry and need assistance in staying compliant or have an existing issue with a state or local agency contact us. We can help you continue your services to the patients that need you!