Medical Marijuana Smoking Ban Lawsuit Moves Forward in Florida Court

By Paul Fuhr 01/29/18

A group of Florida plaintiffs are fighting for their right to not be prosecuted for smoking medical marijuana.

person smoking a marijuana joint

A Tallahassee judge has overturned a Florida state law that bans medical marijuana users from smoking their prescriptions. Judge Karen Gievers heard arguments last week about whether a lawsuit challenging the state’s smoking ban should be dismissed outright.

According to the Orlando Sentinel, the judge refused the state’s request to throw the case out of court, which lets the lawsuit move forward. While the plaintiffs’ lawyers contended that the smoking ban violates the state’s constitution, lawyers for the state countered that the medical marijuana amendment is open to interpretation.

“The plain language of the medical marijuana amendment authorizes the Legislature to enact laws consistent with the amendment. Here, the Legislature has enacted a law that embodies reasonable health and safety concerns in compliance with the amendment,” State Deputy Solicitor General Rachel Nordby argued, adding that the constitution doesn’t require the state to permit smoking.

While Gievers agreed to let the lawsuit continue, she also sided with the state in its assessment that the plaintiffs “lacked standing to sue.” She gave them 10 days to file an amendment to their suit.

The Florida Constitution’s medical marijuana amendment was approved in 2016, which prohibited smoking only in public areas, the Sun Sentinel reported. When the law passed in 2017, however, smoking was banned entirely.

Patients prescribed medical marijuana “must vape the product, or else use patches, oils, edibles—any other means but the most traditional way of using the drug.” Complicating matters even more is the fact that the amendment relies on the 2014 definition of marijuana under Florida’s criminal laws, which includes whole-flower marijuana—the very part of the plant that is used for smoking. 

Still, the lawsuit’s plaintiffs believe they have standing to sue since their doctors have prescribed smokable marijuana for conditions like ALS, the Palm Beach Post said. By enforcing the smoking ban, the state is “substituting its judgment for that of a Florida doctor [which is] a conflict with the process laid out in the Constitution.” That process affords authorities to determine, on a person-by-person basis, if medical marijuana is allowable.

Regardless, the plaintiffs believe their case has merit. Even if marijuana continues to be banned outdoors, “you can’t restrict smoking inside when there’s a medical condition that justifies it,” the plaintiffs’ lawyer said.

In the eyes of many Floridians, the amendment no longer serves its original purpose nor does it protect the people who benefit most from it. Bob Jordan, one of the plaintiffs, put an even finer point on the situation: “The Legislature has taken the place of doctors telling us what we can and cannot do,” he said. “We voted for a constitutional amendment so we couldn’t be prosecuted for smoking cannabis. We’re still in danger.”

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Paul Fuhr lives in Columbus, Ohio with his family and two cats, Vesper and Dr. No. He's written for AfterParty MagazineThe Literary Review and The Live Oak Review, among others. He's also the host of "Drop the Needle," a podcast about music and addiction recovery. More at You can also find Paul on Linkedin and Twitter.