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Florida Medical Marijuana Smoking Ban: Updates

Florida medical marijuana smoking

Medical cannabis became legal in Florida in 2016, with the passing of the Florida Medical Marijuana Legalization Initiative, also known as Amendment 2. Rules for use and administration were outlined several months later by Senate Bill 8A.

According to Senate Bill 8A, patients could only consume medical marijuana via oils, sprays, tinctures, and vaping. Edibles were also allowed but, to date, no rules have been developed for their use. (For more information, see: Ways to Take Medical Marijuana.)

In July 2017, attorney John Morgan filed a lawsuit against the state, claiming Florida’s smoking prohibition violates voters’ intent. In March 2019, Morgan prevailed and smoking medical marijuana became legal in Florida through Senate Bill 182.

For more information on smoking medical marijuana, see:

Below, CannaMD summarizes legislative developments leading to this groundbreaking change. (Note: Recent updates are listed first.)

To learn how to qualify for smokable medical marijuana, call CannaMD‘s state-licensed, board certified physicians at (855) 420-9170 or fill out an easy application today!

Support from Florida Policy Makers: 2019

Although the lift on the smoking ban has been an uphill battle, victory was finally had thanks not only to John Morgan and Governor Ron DeSantis, but also many other key policy makers.

Commissioner of Agriculture and Consumer Services, Nikki Fried, has been a very vocal proponent of Senate Bill 182 and stated on signing day:

It’s a triumph owed to the relentless advocacy of Floridians who refused to be silenced.

Our state must not disregard the voice of its people — when the people’s will is nullified by those with authority, liberty cannot survive.

In addition to Fried’s support, State Senator Jeff Brandes is right in rank with the medical marijuana calvary, commenting to the Miami Herald:

What other drug does the government tell you how to ingest? It’s a doctor-patient issue. The government doesn’t insert themselves in there.

All in all, we’ve seen a large supporting cast for the new smoking laws in Florida that include many prominent individuals throughout the state. While there are a number of people to thank for this major legislative achievement, in the end the Florida voters made it all happen through the use of their voice at the polls!

Governor Signs SB 182: March 18, 2019

Smoking medical cannabis is officially legal in Florida! On March 18, 2019, Governor DeSantis signed SB 182. The bill was filed at 1:48pm.

House Passes SB 182: March 13, 2019

After passing the Florida Senate the week before, SB 182 received approval from the Florida House of Representatives on March 13. The bill allows smokable forms of medical marijuana; however, new legislation will not go into effect until the bill is signed by Governor DeSantis.

Governor issues ultimatum: January 17, 2019

On January 17, Governor Ron DeSantis hosted a press conference in Winter Park, FL. DeSantis asked legislators to change the law to allow smoking medical marijuana. If it doesn’t by mid-March, he’ll drop the state’s appeal of the earlier court decision that says banning it violates a constitutional amendment.

According to DeSantis:

What the Florida Legislature has done to implement the people’s will has not been done in accordance with what the amendment envisioned. Whether they [patients] have to smoke it or not, who am I to judge that? I want people to be able to have their suffering relieved. I don’t think this law is up to snuff.

Court hears arguments: January 8, 2019

On January 8, the 1st District Court of Appeal heard arguments from both sides. The Department of Health claimed that Amendment 2 gives health officials the power to issue regulations and ban smoking. According to Deputy Solicitor General Jordan Pratt:

The amendment does not in any instance guarantee immunity for smoking marijuana.

Appeals Court Judge Timothy Osterhaus questioned this logic:

Do you think that’s key here, that they didn’t knock out all ways of administering… that they left ways open, or could they have decided that all ways are unsafe?

Pratt answered that the law allows for a variety of other methods of consumption and that lawmakers probably would not have been able to ban all types of treatment administration.

Osterhaus pressed on:

Is there harm to the voters writ large, if they’ve gone through the process of amending their Constitution, and the Legislature decides, ‘No, we’re not going to go for that and we’re going to veto what you’ve passed?’

To which Pratt replied that,

[The court’s focus] begins and ends with just one question, which is whether the amendment requires smoking of marijuana. And there’s simply nothing in the amendment that says that.

However, Jon Mills (a former dean of the University of Florida law school who helped craft Amendment 2) argued against Pratt, claiming the ban is in direct conflict with the Florida Constitution:

The Constitution allows doctors to order smokable marijuana for eligible patients, but the law does not.

If you could prevent one method, could you prevent all.

If the constitutional boundaries are set, there are no set of circumstances or facts that justify violating the Florida Constitution.

Mills concluded:

There is a conflict. It’s irreconcilable. And that really is the end of the story.

Speaking to reporters the same week, Gov. DeSantis said he has “not committed” to upholding the ban:

I think at the end of the day, when the people speak on these things, we want to implement their will. I don’t think that that’s been done fully. So we are going to be taking actions with medical marijuana that are consistent with what I said in the campaign. It was a 72 percent issue, and I have different minds, from different people, about how effective it’s going to be. But at the end of the day those debates are really before the vote happens, and once the vote happens, you’ve got to move on. So we’ll take some actions within a pretty short time.

Court schedules arguments: November 26, 2018

On November 26, the 1st District Court of Appeal scheduled arguments to be heard January 8, 2019.

Plaintiffs file answer brief: September 13, 2018

On September 13, 2018, attorney Jon Mills filed a 48-page answer brief in support of smoking medical marijuana. Mills wrote:

[Legislation] permits physicians to certify treatment using medical marijuana – including in a form for smoking – to qualifying patients. That is all [it] does. Nothing less. Nothing more.

However, [the state law] explicitly prohibits the smoking of medical marijuana as a treatment. It is clearly an enactment contrary to [the amendment].

State files answer brief: August 3, 2018

On August 3, 2018, Florida Attorney General Pam Bondi filed a 57-page answer brief with the 1st District Court of Appeal. The brief argued:

Notably, the Legislature considered evidence of the health hazards of smoking and concluded that smoking marijuana constitutes a harmful delivery method. Time and again during debate, elected members of Florida’s Legislature emphasized that the amendment is exclusively about medicine, and that smoking is antithetical to good medicine.

In considering these health-related factors, the Legislature reasonably determined that the harms caused by smoking – including harms to patients and those exposed to secondhand smoke – were ample reason to exclude smoking from the statutory definition of ‘medical use.’

The Legislature therefore acted under its general authority to regulate public health, safety, and welfare when it drew a reasonable line between the smoking of medical marijuana, and other delivery methods.

Florida Appeal Court rejects request to speed up case: June 26, 2018

On June 26, 2018, the 1st District Court of Appeal issued a one-sentence order rejecting plaintiffs’ request to certify the case to the Florida Supreme Court. The order did not explain any reasoning.

Both sides file responses: June 8, 2018

On June 8, 2018, both sides filed responses. Plaintiffs asked that the case be “certified” to the Florida Supreme Court, (effectively bypassing the 1st District Court of Appeal), arguing:

[The ban on smoking marijuana] presents an immediate threat of irreparable injuries to those patients for whom this medical (smoking) treatment is currently prohibited.

Attorneys for the state countered:

[There] are various other forms of medical marijuana presently available and approved (or permitted) … in Florida for qualifying patients. For example, vaping or vaporization of marijuana flower is permitted for medical use, so long as the flower is in a sealed, tamperproof receptacle.

State appeals order to lift stay: June 6, 2018

On June 6, 2018, the Florida Department of Health appealed Judge Gievers’s order to lift the stay placed on her medical marijuana smoking verdict.

Both sides were given until 3pm on June 8, 2018 to respond.

Judge lifts stay on marijuana smoking verdict: June 5, 2018

On June 5, 2018, Leon County Circuit Court Judge Karen Gievers lifted the stay on her medical marijuana smoking verdict. According to Gievers:

There is no likelihood of [the State’s] success based on the merits of the defendants.

State appeals medical marijuana smoking verdict: May 25, 2018

Immediately following Judge Karen Gievers’s ruling that Florida’s ban on smoking medical marijuana is unconstitutional, the Florida Department of Health filed an appeal (resulting an an automatic stay).

Devin Galetta, a spokesman for the state Department of Health, argued:

This ruling goes against what the legislature outlined when they wrote and approved Florida’s law to implement the constitutional amendment that was approved by an overwhelmingly bipartisan majority.

Leon County Circuit Court marijuana smoking verdict: May 25, 2018

On May 25, 2018, Leon County Circuit Court Judge Karen Gievers ruled in a 22-page order that Florida’s ban on smoking medical marijuana is unconstitutional, writing:

Just as no person is above the law, the legislature must heed the constitutional rights Floridians placed in the Constitution in 2016. The conflicting, overreaching 2017 statute, while presumably adopted in good faith and with good intentions, cannot be allowed to overrule the authority of the people to protect rights in the Constitution.

Medical marijuana smoking ban trial: May 16, 2018

On May 16, 2017, Leon County Circuit Court Judge Karen Gievers heard testimony from several patients arguing the benefits of smoking medical marijuana.

Cannabis user Cathy Jordan, 68, has ALS (Lou Gehrig’s disease) and testified:

In ’86, I was given three to five years to live and I’m still here.

Jordan said that to treat her disease, she breaks the law and grows the plants in her backyard. She testified that she “can’t do edibles” because they “cause terrible, terrible muscle pain in my stomach” and vaping makes her gag. Smoking, however, increases her appetite, dries her excess saliva, and calms her muscles.

It just makes my life a lot more bearable.

The three hour trial ended with Gievers promising a swift ruling.

Medical marijuana smoking ban lawsuit: July 6, 2017

On July 6, 2017, Florida trial attorney John Morgan filed a lawsuit on behalf of Floria for Care, Inc. in Leon County Circuit Court arguing against the state’s ban on smoking medical marijuana. Morgan wrote:

Inhalation is a medically effective and efficient way to deliver tetrahydrocannabinol (THC), and other cannabinoids, to the bloodstream […] By redefining the constitutionally defined term ‘medical use’ to exclude smoking, the Legislature substitutes its medical judgment for that of ‘a licensed Florida physician’ and is in direct conflict with the specifically articulated Constitutional process.

Florida legislation allows the state to prohibit smoking medical marijuana in public places. Speaking at a July press conference, Morgan argued:

If something is not allowed in public, it is allowed in private. It’s as clear to all of you as it is to any first-grader taking first-grade logic.

State Representative Ray Rodrigues, who sponsored the bill, said he is confident the law will stand:

If smoking was their intent, [lawmakers] should have declared it.

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14 Comments

  1. Follow Amendment 2 the people spoke, the legislation is unconstitutional and the GOP is the problem. Mental degenerates all especially Bondi and Scott who obviously broke the government in the sunshine law . Scott should be jailed without bond and Bondi should be put on the hot seat or resign, before the election. Scott needs to be jailed for all his crimes not awarded a seat in the US Senate.

    1. David, you got that right, glad it seems that we a=have now who we have, and he is giving them 2 months to get it right, or else. I hope they sit on their hands, and he is forced then to stop/drop the appeal, that would end it for sure, and we then would have laws very soon, and we would then begin to grow our own, right? And Pamela, i think we all do fell the same, Tallahassee needs to either get a real job, or do the one we pay them to do, crap or get of the pot! AMEN!
      I am down here in MIAMI, 33183. [just asking, where is everyone from in Fla.? zipcode please?] HOWARD

      1. I think we all agree on this topic, eh? Yay! The will of the people has prevailed, only with massive force and threat of expensive lawsuits! I’m just a good old man, formerly a good ol’ boy. Only I been around long enough to afford to put that “d” on the end of mine. Hitting mid-60’s and hitting the MM. Getting old hurts.

  2. What’s the point of voting if the government can do whatever it wants. At this , we then work for the government and that is completely ass backwards!

  3. Florida some time back enacted legislation making it much more difficult to change the Florida State Constitution and laid down specific guidelines with regards to getting a constitutional amendment on the ballot for the registered voters to either approve or deny. The amendment on Medical Marijuana was put to a vote and passed by an overwhelming majority. The Legislators whom I presume were unhappy and disagreed with the voting public’s response took it upon themselves to enact legislation and guidelines in hopes to effectively render the approved amendment to suit their own personal desires. The voice of Florida voters has spoken. By the Florida Legislature pulling this stunt they have effectively delayed the implementation of the approved constitutional amendment, knowing it would be put into the court system to sort it out. The people of Florida who spoke out by voting have in essence been told “screw you” “we’ll show you” by the very people we elected to represent us. Just as soon as possible afterwards, the Florida Highway Patrol announced that anyone stopped and considered by the officer to be under the influence of marijuana would be arrested for DUI. All an FHP Officer or any other law enforcement agency officer has to do is smell it on your clothes. No legal tests, no way to gauge the level of consumption, no consumption level guidelines to test by, only the sense of smell by the officer, his training, and experience gives him the right to screw up your life and you get a misdemeanor charge on your record for seventy five (75) years. That means if your eighteen (18) years old, you must live to be ninety eight (98) years old before it comes off your record. So let’s hope the officer has a cold or sinus problems. Give me a break, give us all a break, FHP is just as corrupt as the legislators. On top of that only a select few can get a grower’s license. Those who are lining the pockets of the politicians that we elected are the ones that will benefit the most. Just remember fellow voters, if you believe your vote counts, it does, as long as the Florida Legislator you helped to elect agrees with you. No one will ever know how money this has cost the taxpayers of this state and frankly i don’t want to know. I do applaud Governor DeSantis for taking a stand on this issue. I hope & pray the governor will tell the Florida Legislative Branch that Florida is part of the United States of America and that Tallahassee is not “Little Moscow”.

  4. Some of us don’t use, like, or trust facebook along with many others such as twitter so “how about an update & details” to this page. It’s my understanding some action by the FL Senate has been taken. We are waiting…….

    1. Hi, Willard. The most recent court updates are published, above. The Senate and House are currently reviewing different versions of potential bills; we’ll be sure to update once they reach a formal agreement. The governor set a deadline of mid-March, so should be any day now!

  5. Im a Democrat hated rick Scott for reasons just like this, But im starting to like Ron Desantis i have a card it’s too expensive for me now i want too know can i grow it here. I grew it for ten years in Alaskan cops could care less i grew 10 plants never had to buy it for the entirety of my stay!

    1. Hi Christopher! Unfortunately, home grow is still illegal in Florida 🙁 We’ll keep you posted if anything changes!

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