Florida's Getting Sued Because Its Medical Marijuana Law Bans Smoking

The law allows vaping and using edibles, oils, and sprays.
July 7, 2017, 11:08pm
The Boston Globe via Getty Images

Marijuana laws in the United States are a mess. That's partly because, while support for legalizing marijuana is at an all-time high, it remains illegal under federal law. Individual states, meanwhile, have moved forward: 29 states and the District of Columbia now have legalized recreational or medical marijuana.

But that's led to a patchwork of legal implementations, as states fumble their way through the process. In Florida, 71 percent of voters approved a medical marijuana amendment to the state constitution last November. Yet it took state legislators until June to pass a bill implementing the amendment.


Now the man who put medical marijuana on the ballot is suing the state, claiming the bill doesn't reflect the will of the voters. The proposed law, he says, is unenforceable because of one thing it doesn't let medical weed patients do: smoke.

John Morgan is an Orlando trial lawyer who led the campaign for Amendment 2, which made access to medical marijuana a constitutional right in Florida. He helped draft the amendment, helped raise millions to support it, and says it was always designed to allow people to smoke medical marijuana. It does allow the state to prohibit smoking in public, as do several other states, and Morgan argues that implies a right to smoke in private.

"It doesn't take a genius to figure out that if smoking is not allowed in public, it must certainly be allowed in private," Morgan told the Orlando Sentinel. "That's the intent. That's what we said before we started."

The Republican-dominated legislature disagreed. In February, it introduced a bill that would have banned smokable, edible, and vape-able weed—all while still claiming to be implementing Amendment 2. Advocacy groups rightly asked how, then, patients were supposed to get their medicine. The new proposal allows vaporizers and the use of marijuana products sold as edibles, oils, sprays or tinctures, but legislators claimed the smoking ban was an attempt to comply with guidance from the federal government.


It seems clear, though, that at least some lawmakers simply didn't want medical marijuana. Rep. Julio Gonzalez, a medical doctor, told The Miami Herald, "I don't believe that medical marijuana exists. I just don't. I'm stuck as a physician." (Echoes of Attorney General Jeff Sessions' claim that "good people don't smoke marijuana.)

It's a familiar pattern: Voters clearly supporting lessening restrictions on marijuana, only to be thwarted or slow-walked by their representatives. Maine voted by a slim margin last November to legalize recreational weed, only to have the necessary licensing get bogged down in the legislature. Massachusetts voters have seen their legalization demands delayed, too. Vermont recently became the first state to produce a recreational weed bill directly from its legislature, only to have it vetoed by the governor.

As far as specifically targeting marijuana smoking, state laws are also a mixed bag. Most states with recreational weed still prohibit smoking in public. And when it comes to medical marijuana, Florida's not alone in its ban on smoking trees. According to Tamar Todd, acting managing director for policy at the Drug Policy Alliance, seven of 29 states restrict smoking it: Minnesota, New York, Ohio, Pennsylvania, and West Virginia all ban lighting up; in Connecticut, patients who are minors can't smoke.

Florida is different, though: Other states built smoking prohibitions into their laws, while Morgan argues that Amendment 2—the bill people voted on—allows smoking.

Smoking weed seems to hold a special stigma for lawmakers. Rep. Ray Rodrigues, who sponsored the Florida law, told The Miami Herald he considered the push for smoking a "backdoor attempt at recreational" marijuana use.

Morgan sees it as exactly the opposite, saying that by attempting to restrict Amendment 2, legislators have "kicked the door wide open for recreational marijuana use in Florida" as Morgan would help the industry get full legalization in Florida. More immediately though, he points to the text that voters overwhelmingly approved. "There are four places listed in the amendment that call for smoking," he told the Associated Press. "I don't know why they would object to anyone on their deathbed wanting to use what they wanted to relieve pain and suffering."

Update 5/30/18: A judge ruled on Friday 5/25 that Florida's ban on smoking medical marijuana is unconstitutional. The judge wrote in her ruling that people 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, including the use of smokable marijuana in private places.” The state's Department of Health said in a statement it has appealed the ruling, which will impose an automatic stay.

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