Fight continues over marijuana in Florida
Friday, July 6, 2018
Posted by: DCMS
By Dara Kam
The News Service of Florida
TALLAHASSEE --- Folks in Florida might think their pot-smoking pals in Massachusetts are a bunch of crybabies.
Six months after marijuana became legal in the Bay State, purveyors of pot and their advocates are kvetching after a July 1 rollout date, self-imposed by Massachusetts officials, came and went without the advent of retail sales for recreational use.
But, by Sunshine State standards, a six-month turnaround seems pretty speedy.
Florida voters in November 2016 passed a constitutional amendment that broadly legalized medical marijuana. But an October 2017 deadline to license new vendors --- a deadline later modified by state lawmakers --- elapsed nine months ago, and Florida pot czar Christian Bax has yet to begin processing new applications from medical marijuana firms.
Bax and other state health officials are fending off nearly a dozen administrative and legal challenges as interested parties seek to plant a footprint or defend their territory in Florida’s blossoming marijuana industry --- estimated by some market analysts to generate $1 billion by 2020.
Carl Sagan, the astronomer who was the gateway to the cosmos for amateur astronomers and the generally curious public, also earned a reputation as a marijuana advocate in an era when the legalization of cannabis seemed as far off as the “billions and billions” of stars Sagan brought into the living rooms of television viewers.
"The illegality of cannabis is outrageous, an impediment to full utilization of a drug which helps produce the serenity and insight, sensitivity and fellowship so desperately needed in this increasingly mad and dangerous world," Sagan, then 35, observed in 1969.
Nearly fifty years later, this “mad and dangerous world” could use serenity, insight, sensitivity and fellowship more than ever.
UP IN SMOKE
In what seems to be the never-ending weed wars in Florida, an appellate court this week snuffed out the possibility of sick patients being able to smoke their cannabis treatment any time soon.
The ruling by a three-judge panel of the 1st District Court of Appeal came in a lawsuit initiated by Orlando trial attorney John Morgan and others who maintain that a Florida law barring patients from smoking their treatment runs afoul of the 2016 constitutional amendment.
The appeals court chided a Tallahassee judge who sided with patients, saying plaintiffs likely won’t win on the merits of the case and refused to allow smokable medical marijuana while the legal fight continues.
Leon County Circuit Judge Karen Gievers in May agreed with Morgan, who largely bankrolled the constitutional amendment, and plaintiffs in the case. The state appealed, touching off legal maneuvering that led to the appellate panel Tuesday issuing a five-page decision that effectively blocked Gievers’ ruling while the case continues.
“I respect the 1st DCA immensely, but no matter what, this goes to the Supreme Court, so why not now,” Morgan, who has repeatedly called on Gov. Rick Scott to drop the state’s appeal, said in an email Tuesday. “It is just a waste of time and taxpayer money. Cathy Jordan may die as this snails its way through the system. All of this proves why people don’t trust politicians. They know what they voted for.”
Cathy Jordan, one of the plaintiffs in the case, credits a daily regimen of smoking marijuana with keeping her alive decades after doctors predicted she would die from Lou Gehrig’s disease. Jordan, who grows her own pot, testified that smoking marijuana treats a variety of life-threatening side effects of the disease and that other forms of ingestion don’t have the same positive impact.
Gievers agreed with lawyers representing Jordan and the other plaintiffs. They contended that it was understood that the constitutional amendment allowed smoking, though the measure did not expressly authorize it.
State health officials, who answer to Scott, immediately appealed Gievers’ May 25 ruling, automatically putting her decision on hold. On June 5, Gievers lifted the stay, saying Jordan and Diana Dodson, a plaintiff who has neuralgia associated with HIV, would suffer without having access to smokable marijuana.
But the appeals court Tuesday quashed Gievers’ decision to lift the stay and directly contradicted the circuit judge. Appellate judges Joseph Lewis, Lori Rowe and M. Kemmerly Thomas found that the plaintiffs “failed to demonstrate that they will suffer irreparable harm if the automatic stay is reinstated.”
Noting that a trial court may vacate an automatic stay only “under the most compelling circumstances,” the judges also scolded Gievers, saying “it was an abuse of discretion for the circuit court” to lift the stay.
Even more, the panel signaled bleak prospects for Morgan and the plaintiffs, at least as far as the appellate court --- which also rejected a request to rush the case to the Florida Supreme Court --- is concerned.
“Here, after the panel’s preliminary review of the wording of the medical marijuana amendment and the statute prohibiting the use of medical marijuana in a smokable form, we conclude that appellees (the plaintiffs) have not sufficiently demonstrated a likelihood of success on the merits as required to justify vacating the automatic stay,” the judges wrote.
WHEN “DIRT” IS A “FACILITY”
Meanwhile, an orchid grower and investors who spent nearly $800,000 to purchase property in Pinellas County they believed would give them a leg up in obtaining a highly sought-after medical marijuana license may be experiencing buyers’ remorse, thanks to state health officials.
One of the owners of Louis Del Favero Orchids told a state judge Monday he now believes the business would have been better off keeping the cash, due to what his lawyers are calling a faulty rule proposed by the Department of Health.
The orchid grower is challenging the proposed rule, which is based on a law passed last year implementing the medical-marijuana constitutional amendment. The orchid grower argues the proposal fails to properly carry out the law, which includes giving preference for up to two medical marijuana licenses to applicants who own facilities that were used to process citrus.
Ormond Beach lawyer David Vukelja, who owns 20 percent of Del Favero, told Administrative Law Judge R. Bruce McKibben on Monday he and other investors closed on the property because they believed it would give them an edge when applying for a marijuana license.
“We looked at the statute,” Vukelja said. “We took it at face value.”
According to the Department of Health, however, there’s nothing in the law that requires a “facility” to be a structure.
But Seann Frazier, a lawyer representing Del Favero, asked if that meant that a tent, erected where a structure previously was used to process citrus, would make an applicant eligible for the citrus preference.
“You’re saying the facility is the tent. It could also be the space it’s in. So how they will convert that space. They could put a building on it,” state Office of Medical Marijuana Use Deputy Director Courtney Coppola said.
“The facility could be dirt. Unimproved dirt, that somebody could promise to put a $1 million processing plant on top of it, they would still meet the citrus preference. Is that true?” Frazier asked.