Gov.-elect Ron DeSantis told reporters on Monday that, unlike his predecessor, Gov. Rick Scott, he is “not committed” to upholding the state’s ban on smokable medical marijuana and promised “some actions within a pretty short time” in getting Florida’s medical marijuana program “to move on” from a rocky two-year launch.
On Tuesday, however, like former Gov. Scott, newly-minted Gov. DeSantis did not withdraw the state’s appeal of a May ruling that struck down the 2017 ban on smokable marijuana as an unjust restraint in implementing the 2016 constitutional amendment that legalized medical marijuana with the consent of more than 71 percent of voters.
State Department of Health (DOH) attorneys hardly appeared to be in a conciliatory posture during a hearing before a three-jurist panel of the 1st District Court of Appeal in launching the state’s challenge to Leon County Circuit Judge Karen Gievers’ “No Smoke Is A Joke” ruling that the smokable marijuana ban hinders implementation of the voter-approved constitutional amendment.
DOH attorneys argued the constitutional amendment gives health officials the power to issue regulations and the Legislature the authority to ban smoking because of its ill effects.
“The amendment does not in any instance guarantee immunity for smoking marijuana,” Deputy Solicitor General Jordan Pratt said before the court.
The court’s focus “begins and ends with just one question, which is whether the amendment requires smoking of marijuana,” Pratt said. “And there’s simply nothing in the amendment that says that.”
The “no smoke is a joke” lawsuit was brought by Orlando attorney John Morgan, who was among the primary financiers of the drive to get the 2016 constitutional amendment legalizing medical marijuana approved.
Former dean of the University of Florida law school Jon Mills, who helped author the amendment, told the court that the Legislature’s 2017 law directly conflicts with the Constitution.
Mills said the Constitution allows doctors to order smokable marijuana for eligible patients, but the law specifically prohibits it.
“This is not a small constitutional conflict,” he said, noting whether smoking is bad for patients’ health is not the issue being discussed.
“If the constitutional boundaries are set, there are no set of circumstances or facts that justify violating the Florida Constitution,” he said.
The 1st District Court of Appeal is also set to hear state challenges to two rulings in lawsuits filed by Tampa exotic dance club owner Joe Redner and his company, FloriGrown. They are among at least 17 lawsuits across Florida in state and federal courts challenging many of the 2017 restrictions imposed by the Legislature.
The 1st District Court of Appeal is also scheduled to hold arguments on Feb. 12 in Redner’s challenge that he should be able to legally grow medical marijuana as part of his treatment for cancer.
Gievers in April ruled Redner can grow his own marijuana under the 2016 constitutional amendment.
Despite DeSantis’ comments that this was among cases he’d consider dropping, the court gave notice on Dec. 31 that it will hear the DOH’s appeal on Feb. 12.
The 1st District also agreed to hear on an “expedited” basis in the coming weeks the state’s challenge to a ruling that struck down the state’s medical marijuana licensing system in a lawsuit filed by FloriGrown.
On Oct. 5, Leon County Circuit Judge Charles Dodson found that the 2017 law’s cap on the number of marijuana operator licenses, and the qualification that they be “vertically integrated,” does not meet the intent of the amendment.
Dodson issued a temporary injunction requiring state officials register FloriGrown and other medical-marijuana firms to do business. The DOH appealed, triggering an automatic stay.
On Dec. 4, Dodson granted FloriGrown’s petition to vacate the stay. The 1st District Court on Dec. 19 agreed to a request by the DOH to put Dodson’s October ruling on hold until it hears the case — which it agreed to do on an “expedited” basis.
When, or if, DeSantis pulls the plugs on the state’s continuing appeals in some marijuana cases, Senate Appropriations Chairman Bradley, R-Fleming Island, told the News Service of Florida that lawmakers likely won’t resist much.
“I trust Gov.-elect DeSantis will do what he thinks is right,” he said. “But it’s starting to have the feel of an issue we sort of need to have behind us and move on. It was done for good, solid policy reasons, but if the governor-elect decides to move in a different direction on the issue, I certainly respect and understand that.”
Bradley said legislators want to see remaining authorized licenses issued, the DOH “promulgate rules on edibles, right now,” and “look at expanding competition even further,” adding that the statutory cap now limiting the number of medical-marijuana operator licenses to 14 imposed by the Legislature is 2017 needs to be reconsidered.
“There needs to be more licenses,” he said. “Whether that happens through the Legislature or through the courts remains to be seen.”