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Florida Man Says State Ban on Homegrown Medical Marijuana Unfair

A Florida man with stage-four cancer is suing the state for the right to grow his own medical marijuana.

(CN) - A Florida man with stage-four cancer is suing the state for the right to grow his own medical marijuana.

In a lawsuit filed June 15 in the Hillsborough County Circuit Court, Joseph Redner argues that he should be allowed grow his own marijuana to create infused oils, butters and juices.

Under current rules, the Florida Department of Health only allows licensed dispensaries to grow and distribute the plant.

Redner is registered with the Florida Department of Health’s Office of Compassionate Use and can use medical marijuana from a dispensary. But he says that with a compromised immune system, he should be able to control the substances that go into his body.

The complaint also points to the definition of marijuana in Florida's constitutional amendment on medical marijuana, which specifically mentions “all parts of any plant of the genus cannabis, whether growing or not.” Under current regulations, patients will not receive the whole flower of the plant, or seeds, but marijuana processed into oils, tinctures or edibles.

The suit does not ask for damages.

“We are confident that our position … is strong and valid,” Redner’s attorney Amanda Derby said in an e-mail. “The Department of Health's ban on home cultivation for personal use directly contradicts the rights afforded to medical marijuana patients, as enumerated in the Florida Constitution.”

After the amendment passed in November by more than 70 percent of voters, a host of groups lobbied the Florida legislature to implement certain rules on the number of nurseries, dispensaries and even the methods of ingesting.

In a bill passed earlier this month, state legislators capped the number of nurseries and dispensaries, and banned smoking the drug. Gov. Rick Scott has said he will sign the law. The Florida Department of Health will continue to develop rules based on the legislation, including an “emergency rulemaking” process for the first six months of implementation.

“This will enable the department to quickly implement the time-sensitive requirements of the legislation,” said Mara Gambineri, communications director for the Department of Health.

“Following emergency rulemaking, the department is committed to working collaboratively with the public through traditional rulemaking to establish a patient-centered medical marijuana program,” she said.

Gambineri would not comment on the lawsuit, citing departmental policy.

Currently, the states medical marijuana registry lists more than 16,000 patients and 800 doctors certified to prescribe cannabis.

Redner, 77, is best known locally as Tampa’s strip club king and self-proclaimed inventor of the lap dance. For the last three decades, Redner has challenged numerous city ordinances against nude clubs and won. The rabble rouser has unsuccessfully run for local office several times – most recently for the state senate – and has long been a proponent of medical marijuana.

Redner’s lawsuit is one of the first challenging the state’s interpretation of the constitutional amendment, but it will not be the last.

“Nationally, in states that have passed medical marijuana, there has been a multiplicity of lawsuits filed on a variety of legal claims,” said Norm Kent, a South Florida lawyer who practices in criminal defense and constitutional law. “Florida is unique, because our citizens didn’t pass legislation; they passed a constitutional amendment, which placed a legal commandment for the legislature.

“What these lawsuits are going to show is that the legislature passed rules and regulations that are more restrictive than the citizens provided for,” said Kent, who is also vice-chair of the pro-marijuana organization NORML. “The rules and regulations that have passed, and the Department of Health is implementing, are fundamentally unconstitutional.”

However, Kent is quick to note some medical marijuana proponents are also asking for more than the amendment calls for. He also expects many attorneys to file lawsuits in this budding field as an income generator.

“Each one has to be analyzed individually,” he said.

The conditions qualifying for medical marijuana prescriptions may also come under fire. Currently, the law allows a prescription for cancer, epilepsy, glaucoma, HIV/AIDS, Crohn’s disease, PTSD, ALS, multiple sclerosis, Parkinson’s disease or a condition of the “same kind or class.” That vagueness may lead to more lawsuits.

Nurseries who did not receive a license are also certain to sue the state, as many did when the state approved licenses to grow a low-THC form of marijuana in 2014.

Orlando attorney John Morgan – the top financier of the medical marijuana amendment and a possible gubernatorial candidate – recently tweeted he plans to sue over the smoking prohibition. Morgan argues the constitutional amendment bans smoking medical marijuana in public, which infers users are allowed to smoke in private.

Karen Deeb Goldstein, executive director of the state chapter of NORML, also vigorously opposes the prohibition on smoking.

“The whole act is therapeutic, from rolling a join to lighting it,” she said. “It’s part of the therapy.”

That’s why Goldstein is part of a new group, Regulate Florida, which plans to introduce another ballot measure in 2018 that regulates marijuana like alcohol. The group’s petition allows retail sales for people 21 years and older.

It would also permit limited growing.

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