Court puts hold on smokable medical cannabis

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An appellate court has shot down a trial judge’s order to make immediate her ruling that medical marijuana can be smoked in Florida.

The 1st District Court of Appeal, in a one-page order dated June 18, quashed Circuit Judge Karen Gievers’ order allowing patients to smoke.

The state’s appeal of the decision placed an automatic ‘stay,’ or hold, on the ruling pending review. Gievers’ order lifted that stay.

“The stay provided for by (the) Florida Rule(s) of Appellate Procedure … shall remain in effect pending final disposition of the merits of this appeal,” the appellate court’s Monday order said. “An opinion setting forth this Court’s reasoning will issue at a later date.”

A spokesman for the Florida Department of Health had said the agency is reviewing the ruling and “working every day to implement the law.”

The agency said medical marijuana is still available to patients – though not in smoking form. It regulates the drug through its Office of Medical Marijuana Use.

Meantime, attorneys for plaintiffs in the smoking case and for Joe Redner – the Tampa strip club mogul who won a decision allowing him to grow and juice his own medical marijuana – have asked the state’s Supreme Court to take over the appeals.

John Morgan, the Orlando attorney behind the 2016 constitutional amendment approving medical marijuana, also organized the smoking lawsuit. He has called on Republican Gov. Rick Scott, now running for U.S. Senate, to drop further court challenges of Gievers’ ruling.

She previously found “there is no likelihood of success” by the state on appeal.

The governor “is wasting taxpayers’ money on this frivolous appeal while veterans, cops, firefighters (with PTSD) and really sick people suffer,” Morgan said in a statement. “This callous meanness has no room in Florida. This act of cruelty will cost him the Senate seat.”

The department also reported last Friday that the state had surpassed 100,000 people with an approved medical marijuana patient identification card, but a spokesman said that would not trigger the issuance of another four licenses for marijuana providers under state law.

That “was everyone’s expectation and assumption,” Jeff Sharkey, founder of the Medical Marijuana Business Association of Florida, said last week. “I think there will probably be more than a little disappointment over this.”

The 100,000-patient milestone was announced via email on June 15. But again, according to a department spokesman, that doesn’t mean the department will issue another four licenses to grow and sell medical marijuana, as provided under state law.

The state had exceeded 100,000 overall almost two months ago – coincidentally on April 20, or 4/20 – in its medical marijuana use registry. The June 15 mark of 100,372 refers specifically to those that have an approved patient identification card application.

“That figure does not completely reflect an actual threshold that would trigger the new licenses,” spokesman Devin Galleta said in a phone interview June 15. “Once we do have the ability to approve new licenses, we do expect there to be four new licenses available at that time.”

The latest 100,000-plus tally covers “all applications approved over time,” Galleta explained, including “renewals and nonactive patients, so that doesn’t necessarily reflect the true number of active and qualified patients in the registry.”

But exceeding 100,000 approved ID cards to trigger extra licenses “was everyone’s expectation and assumption,” said Jeff Sharkey, founder of the Medical Marijuana Business Association of Florida. “I think there will probably be more than a little disappointment over this.”

State law says within six months of cracking the 100,000 mark, “the department shall license four additional medical marijuana treatment centers (MMTCs).” With every additional 100,000 patients, another four licenses have to issue.

Those patients, however, have to be “active” and “qualified.” That means “a resident of this state who has been added to the medical marijuana use registry by a qualified physician to receive marijuana or a marijuana delivery device for a medical use, and who has a qualified patient identification card.”

As the department’s own disclaimer says, “Not all patients entered into the medical marijuana use registry apply for medical marijuana use identification cards.”

When asked when the number of patients would trigger the issuance of additional licenses, Galleta said he “was not certain on that,” but would seek clarification from the department’s Office of Medical Marijuana Use (OMMU), which regulates the drug.

Added Sharkey: “I agree it would be good to know what that number is. I believe (having over 100,000 approved ID cards) is what most legislators thought would trigger new licenses.”

Approved MMTCs currently number 13, with 43 retail locations across the state, records show.

With a lack of new licenses, businesses seeking to get into the medicinal cannabis market in Florida will likely take to buying licenses from existing providers.

Earlier this month, MedMen Enterprises Inc. of Los Angeles, the country’s biggest medical marijuana provider, said it had agreed to pay $53 million for a license from Central Florida’s Treadwell Nursery.

Others, such as Louis Del Favero Orchids – a Tampa orchid nursery – are seeking to use a provision in state law that gives preference in granting licenses to companies with underused or shuttered citrus factories. That was part of legislation that implemented the 2016 constitutional amendment allowing medical marijuana in the state.

Jim Rosica covers state government from Tallahassee for Florida Politics. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat. His article appears courtesy of FloridaPolitics.com.

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