A judge is deciding whether Floridians should be allowed to consume medical marijuana by smoking it.
Leon County Circuit Judge Karen Gievers heard arguments Thursday on whether to dismiss a lawsuit challenging the state’s ban on smoking.
The medical marijuana constitutional amendment voters approved in 2016 allowed the Legislature to prohibit smoking in public areas. But the law passed in 2017 to implement the amendment banned smoking entirely.
Medical marijuana patients must vape the product, or else use patches, oils, edibles — any other means but the most traditional way of using the drug.
John Morgan, the Orlando trial lawyer who largely financed the amendment drive, filed suit, which state attorneys are trying to have dismissed.
The state argues that the people who are plaintiffs in Morgan’s suit are not “qualified patients” under the law: They have not gone through the process to obtain medical marijuana in the state, and so they have no standing to sue.
But John Mills, arguing the case on behalf of the plaintiffs, pointed out that they need marijuana in its smoked form, so they can’t go through the legal means of obtaining medical marijuana, and that this is the very basis for the lawsuit.
“If you go to a doctor, they’re gonna say no,” he said. “They’d be a criminal. You’d be a criminal. This is the controversy. The controversy is whether the statute denies access.”
Plaintiff Cathy Jordan of Manatee County was present in court Thursday with her husband, Bob. She has had ALS — also known as Lou Gehrig’s disease — for 20 years, and is wheelchair-bound and unable to take oral forms of the medication. Her husband said smoking it keeps her lungs clear and without it, she would die.
“We’re proud to be a part of this,” Bob Jordan said. “We didn’t seek this, but we’re not gonna take it sitting down either.”
State attorney Rachel Nordby also argued that the amendment’s language allowing the Legislature to ban public smoking didn’t stop the Legislature from banning it in private as well.
“Their read of that language is something along the lines of the fact that it says the amendment shall not require the accommodation of A, therefore the amendment requires the accommodation of B through Z,” she said. “And that’s just not a logical reading of that provision.”
But Mills said a constitutional amendment that provides limitations, such as a ban on public smoking, shouldn’t be construed to limit rights in other ways.
“You tell your kid, well, you can play in the mud outside, that does not mean you can play in the mud in the living room,” he said. “And this says you can restrict smoking in public — that’s what it says. And so the implication in constitutional interpretation is you can’t restrict smoking inside when there’s a medical condition that justifies it.”
The judge will issue a decision in the coming days, though there’s no set deadline to do so.
“The Legislature’s taking the place of the doctors, telling us what we can and cannot do. We voted for the constitutional amendment so we wouldn’t be prosecuted for smoking cannabis,” Bob Jordan said. “We’re still in danger.”
