Smokable medical-marijuana patients must wait, appellate court decides

TALLAHASSEE — An appellate court Monday kept on hold a Tallahassee judge’s ruling that would allow patients to smoke medical marijuana if their doctors approve it.

The 1st District Court of Appeal’s decision means that patients will continue to be barred from legally smoking medical marijuana at least until the appellate court issues a final ruling on the merits of the case.

Leon Circuit Judge Karen Gievers last month sided with Orlando trial lawyer John Morgan and a group of plaintiffs who filed a legal challenge after the Legislature included a ban on smoking in a 2017 law carrying out a constitutional amendment broadly legalizing medical marijuana.

Gievers agreed that the text of the constitutional amendment, approved by 72 percent of Floridians in 2016, allows patients to use any form of marijuana as their treatment.

Health officials, who argued that the amendment did not expressly authorize smoking and that the state had broad leeway to regulate medical marijuana use, immediately filed an appeal, which put an automatic stay on Gievers’ May 25 ruling.

On June 6, Gievers overturned the stay, prompting the state to ask the appellate court to keep it in place. The court sided with the state on Monday, saying that Gievers’ order vacating the stay was “quashed” and that the hold “shall remain in effect pending final disposition of the merits of this appeal.”

Whether patients should be able to smoke marijuana if their doctors recommend it has set off a partisan firestorm, with Morgan — a former Democratic fundraiser who largely bankrolled the 2016 constitutional amendment — stirring the political pot. Morgan said he had expected the appellate court to keep Gievers’ ruling on hold.

“Not surprised. [Gov.] Rick Scott could end the appeal today. It will cost him his Senate bid. The makers of opioids are cheering him on,” Morgan wrote in an email Monday.

Morgan has repeatedly asked Scott to drop the appeal, warning that the governor’s opposition to smokable medical marijuana will alienate moderate Republicans and independents in the governor’s quest to oust U.S. Sen. Bill Nelson in November.

Nelson, a Democrat, recently came out in support of doctor-ordered smokable marijuana for sick patients, as have each of the Democratic candidates seeking to replace Scott as governor.