Pubdate: Tue, 03 Jul 2018
Source: Sun-Sentinel (Fort Lauderdale, FL)
Copyright: 2018 Sun-Sentinel Company
Author: Dara Kam


TALLAHASSEE -- Chiding a judge who sided with sick patients and saying
plaintiffs likely won't win on the merits of the case, an appellate
court on Tuesday refused to allow smokable medical marijuana while a
legal fight continues to play out.

The ruling by a three-judge panel of the 1st District Court of Appeal
came in a lawsuit initiated by Orlando trial attorney John Morgan and
others who maintain that a Florida law barring patients from smoking
their treatment runs afoul of a 2016 constitutional amendment that
broadly legalized medical marijuana.

Leon Circuit Judge Karen Gievers in May agreed with Morgan, who
largely bankrolled the constitutional amendment, and plaintiffs in the
case. The state appealed, touching off legal maneuvering that led to
the appellate panel Tuesday issuing a five-page decision that
effectively blocked Gievers' ruling while the case continues.

"I respect the 1st DCA immensely, but no matter what, this goes to the
Supreme Court, so why not now?" Morgan, who has repeatedly called on
Gov. Rick Scott to drop the state's appeal, said in an email Tuesday.
"It is just a waste of time and taxpayer money. Cathy Jordan may die
as this snails its way through the system. All of this proves why
people don't trust politicians. They know what they voted for."

Jordan, one of the plaintiffs in the case, credits a daily regimen of
smoking marijuana with keeping her alive decades after doctors
predicted she would die from Lou Gehrig's disease. Jordan, who grows
her own pot, testified that smoking marijuana treats a variety of
life-threatening side effects of the disease and that other forms of
ingestion don't have the same positive impact.

Gievers agreed with lawyers representing Jordan and the other
plaintiffs. They contended that it was understood that the
constitutional amendment allowed smoking, though it did not expressly
authorize it.

State health officials, who answer to Scott, immediately appealed
Gievers' May 25 ruling, automatically putting her decision on hold. On
June 5, Gievers lifted the stay, saying Jordan and Diana Dodson, a
plaintiff who has neuralgia associated with HIV, would suffer without
having access to smokable marijuana.

On the other hand, "there is no evidence the defendants (the state)
will suffer harm if the stay is vacated," the judge wrote.

But the appeals court Tuesday overturned Gievers' decision to lift the
stay and directly contradicted the circuit judge. Appellate judges
Joseph Lewis, Lori Rowe and M. Kemmerly Thomas found that the
plaintiffs "failed to demonstrate that they will suffer irreparable
harm if the automatic stay is reinstated."

Noting that a trial court may vacate an automatic stay only "under the
most compelling circumstances," the judges also scolded Gievers,
saying "it was an abuse of discretion for the circuit court" to lift
the stay.

Even more, the panel signaled bleak prospects for Morgan and the
plaintiffs, at least as far as the appellate court -- which also
rejected a request to rush the case to the Florida Supreme Court -- is

"Here, after the panel's preliminary review of the wording of the
medical marijuana amendment and the statute prohibiting the use of
medical marijuana in a smokable form, we conclude that appellees (the
plaintiffs) have not sufficiently demonstrated a likelihood of success
on the merits as required to justify vacating the automatic stay," the
judges wrote.
- ---
MAP posted-by: Matt