A big win for Everyone, Thank you Joe
Joe Redner, Tampa's outspoken strip club entrepreneur and a lung cancer patient, among the first to challenge the state's medical marijuana laws in court.
Less than two weeks after lawmakers put in place new laws governing growing, manufacturing and selling medical marijuana, Redner's lawsuit claims the state is not following the will of the public, which voted overwhelmingly last year to legalize it by passing a constitutional amendment.
Specifically, Redner wants to grow his own marijuana plants. But under Florida Department of Health rules, Floridians are barred from growing cannabis plants for their personal use, including those who are legally registered as medical marijuana patients. Redner's lawsuit is challenging those rules.
Those in Florida's expanding medical marijuana industry say Redner could be one of many to challenge the state's laws on pot.
Lawmakers have limited the selling and growing of marijuana to seven companies. The number will grow to 17 this year, based on last-minute legislation that came about during a special session in Tallahassee earlier this month.
That legislation also allows patients to use cannabis pills, oils, edibles and "vape" pens with a doctor's approval but bans smoking.
Redner's lawsuit is based on how the state constitution amended by voters defines marijuana. He suits claims that the definition includes "all parts of the plant."
Under the current rules, he said the dispensaries are left to decide what parts of the plant to use in its products. He said he wants to grow his own plants because he says he has no idea what he's getting from the state's licensed growers and distributors.
"I don't know if they're using pesticides or doing what's good for the plant," he said. "I'm a raw vegan. I am very careful about what I put into my body. And the amendment gives me the right to that."
Department of Health officials declined comment, citing the litigation.
Redner, 77, the owner of the Mons Venus strip club, is a registered medical marijuana patient in Florida and uses cannabis products to treat conditions related to his stage-four lung cancer. He also battled brain cancer in the past.
"I want to grow plants — plural. Twenty of them," he said in an interview. "I'm doing research right now and I want to be able to use it in juicing. To be effective enough, I need to grow 20 plants."
His lawsuit is seeking declaratory judgement on the merits of his claim and is not seeking any damages. He has been vocal about medical marijuana in the past, including speaking out against rules proposed by the Hillsborough County Commission to limit where dispensaries can operate.
More than 70 percent of voters in 2016 approved Amendment 2, expanding the legalization of medical marijuana in Florida from just the terminally ill and some other patients with epilepsy and cancer, to those with other debilitating conditions such as glaucoma, HIV/AIDS and post traumatic stress disorder, among others. Lawmakers struggled with how to implement the expansion, which is result in a $1 billion industry in Florida within the next three years.
The Department of Health currently oversees the state's seven current operators. Redner says he plans to apply for a dispensary license as well.
Those within the burgeoning industry say Redner's lawsuit will hardly be the last.
"I think the legislators for the most part did a good job given the oppositional context of passing legislation. But they also took liberties that were not afforded to them by the constitution," said Ben Pollara, executive director of Florida For Care, an organization founded in 2014 to advocate for the legalization of medical marijuana under Amendment 2. "I think you'll see lawsuits surrounding the policy positions and around the application process for becoming a licensed medical marijuana dispensing organization."
John Morgan, the high-profile Orlando trial attorney who bankrolled two Florida political campaigns to legalize it, also has threatened to sue over the ban on smokeable forms.
Pollara says that many other states have put provisions in place for patients who want to grow their own plants, and Florida is one of the few states that has not seriously considered it.
"It's not an extreme position," he said. "It's probably the single largest complaint that I've received over the last four and a half years doing this campaign."
Through the years, Floridians arrested for marijuana possession have argued in court with varying degrees of success that they were using the drug out of "medical necessity" to treat an illness. Jesse Teplicki won an acquittal in a Broward County court in 2015 after he was caught growing marijuana plants in his home that he said he used to treat his anorexia and nausea.
Redner's lawyer, Amanda Derby, says litigation like this just comes with the territory.
"New legislation calls for new litigation, unfortunately and fortunately," Derby said. "I think the amendment is pretty clear on its face, but the way it's set up gives the Department of Health so much power. I think if more patients find that growing their own provides better treatment, you'll see more litigation in the future."
Redner, a frequent but so far unsuccessful candidate for political office, is no stranger to the Florida court system. He once famously claimed he was gay in a 2005 federal lawsuit to challenge a ban on public recognition of gay pride events passed by Hillsborough commissioners.
"I've used the constitution as grounds to battle arrests in the past and I've gotten those arrests thrown out. It's pretty clear to me that the constitution gives me the right to challenge this. The state is not reading the amendment, they're not going by what it says," Redner said on Monday. "This is a health issue as far as I'm concerned."
Times Staff Writer Michael Auslen contributed to this report. Contact Justine Griffin at firstname.lastname@example.org or (727) 893-8467. Follow @SunBizGriffin.
Joe Redner wins the right to grow his own weed at home
Joe Redner vs. Florida DOH Preliminary Injunction Presentation
1. Plaintiff’s Right to Grow his own Medical Cannabis Under Article X, Section 29 of the Florida Constitution
2. Article X, Section 29(a)(1): The medical use of marijuana by qualifying patient or caregiver in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law
3. Article X, Section 29(a)(1): The medical use of marijuana by qualifying patient or caregiver in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law
4. Medical Use Article X, Section 29(b)(6): ”Medical use” means the acquisition, possession, use, delivery, transfer or administration of an amount of marijuana not in conﬂict with Department rules…
5. Marijuana Article X, Section 29(b)(4): ”Marijuana” has the meaning given cannabis in section 893.02(3), Florida Statutes (2014) and, in addition, “Low-THC cannabis” as deﬁned in Section 381.986(1)(b), Florida Statutes (2014), shall also be included in the meaning of the term “marijuana.”
6. Marijuana Section 893.02(3): “Cannabis” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant or its seeds or resin.
7. Qualifying Patient Both Plaintiff and Defendant have stipulated that Plaintiff Joseph Redner is a qualifying patient.
8. Article X, Section 29(a)(1): The the acquisition, possession, use, delivery, transfer or administration of an amount of all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant or its seeds or resin not in conﬂict with Department rules by Mr. Redner in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law
9. Medical marijuana takes many forms that are explicitly described in the constitutional deﬁnition a growing plant the seeds thereof resin (oil capsules) derivative (distillate vape cartidge) Mr. Redner intends to make juice from the raw plant.
10. Article X, Section 29 gives Mr. Redner the Right to: • acquire growing marijuana plants • possess growing marijuana plants • use growing marijuana plants to make cannabis juice and oil, and • administer cannabis juice and oil to himself
11. Recognizing Plaintiff’s Right to: • acquire • possess • use • deliver • transfer, and • administer all parts of the marijuana plant, growing or not, its seeds and derivatives. Has no impact on an MMTC’s right to: • acquire • cultivate • possess • process • transfer • transport • sell • distributes • dispenses or • administers marijuana.
12. Plaintiff has not asked the court to deny any party any right articulated in the amendment.
13. In fact, it is the Department that has asked this court to deny a right articulated in the Amendment:
14. Mr. Redner’s right to possess a growing plant.