Joe Redner wants to juice his own marijuana, harvested from his back yard.
The 77-year-old strip club owner with stage 4 lung cancer already has a recommendation from his state-certified physician to do it. But the Florida Department of Health won’t let him.
In an unprecedented lawsuit challenging the state’s interpretation of Amendment 2 and asserting what he says is his own constitutional right, Redner is fighting to grow medical marijuana from his home in Tampa. After months of litigation against the health department, ending in a short trial last month, the judge is expected to rule any day.
But whatever the outcome, Redner’s case could pave the way for other advocates. His is just the first of several lawsuits aimed at giving patients greater access to the alternative medicine that more than 70 percent of Floridians voted for in 2016.
“Hopefully some of this litigation will give more patients the access they want and deserve,” said Ben Pollara, executive director of marijuana advocacy organization Florida for Care and one of the authors of the medical marijuana amendment. “That was the whole point of passing the law.”
The outspoken Redner and other critics across the state say the health department continues to create barriers for more than 95,000 registered patients in Florida that could benefit from marijuana.
“The amendment doesn’t distinguish between the types of medical marijuana,” says Luke Lirot, the Clearwater attorney representing Redner. “It’s been six months and the department of health still hasn’t adopted very basic regulations. It’s difficult right now because doctors don’t know what they’re dealing with yet in terms of regulation.”
Redner’s suit claims the state is not following the public’s will, and says the state Constitution, as amended by voters, defines marijuana as “all parts of the plant.”
More lawsuits are already underway. Orlando attorney and marijuana advocate John Morgan will go to trial in Tallahassee next month to challenge the state’s ban on smoking cannabis.
“A single snowflake causes the avalanche. … People like Joe are the snowflakes,” Morgan said, referring to Redner. “One day cannabis will be legal recreationally, and people will grow it in their back yard. When that will happen, I don’t know. But Joe is on the right track and I hope he’s successful.”
Patients and Producers Alliance, an advocacy group based in South Florida, sued the health department in February, claiming the rules limiting the number of companies to grow, manufacture and sell cannabis are unconstitutional.
One of those 13 licensed companies, Trulieve, also has sued the department, saying the state has unfairly restricted its constitutional right to open dispensaries “without arbitrary and unreasonable limits.”
The ability to grow marijuana plants at home would significantly lower the cost of medicine for patients in Florida, advocates say. Right now, the companies licensed to grow, manufacture and sell medical marijuana dictate the price. Patients could spend anywhere from $100 to $400 a month on marijuana products through dispensaries, on average.
“Cultivating product at home would change the market for cannabis drastically in Florida,” said Pete Sessa chief operating officer with the Tampa-based Florida Cannabis Coalition. “It would make it more affordable for patients. Right now it can be pretty expensive and insurance doesn’t cover it, so plenty of people are sticking with pharmaceuticals. As the cost goes down, more patients will try it.”
Sessa said there’s been great demand for growing at home in other states too.
“I could grow plants from my house for $50 a month and have all the cannabis I need,” he said. “There’s a lot of interest in this from groups who similarly grow their own vegetables at home because they prefer that to what they get at the supermarket. That hands-on experience from the ground up is really catching on.”
Surterra Wellness, another of the state’s licensed cannabis distributors, signed a petition started by Trulieve to fight for direct-to-patient sales of full cannabis plants, the company said this week.
“Patients should be able to obtain cannabis in any format their doctor thinks will work best to treat them,” Surterra CEO Jake Bergmann said in a statement. “The cannabis plant is medicine in its most natural form, and if DOH will allow it, we will provide it for patients.”
Redner said he wants to grow his own plants because he has no idea what he’s getting from the state’s licensed growers and distributors. But under state rules, Floridians are barred from growing cannabis for their personal use, including those who are legally registered as medical marijuana patients.
The health department argues that a judge allowing Redner to grow his own marijuana could open the door to more challenges over the amendment’s language.
“What the plaintiff and this court are about to do, if you hold that individual medical users have immunity to grow their own marijuana, you may ultimately cause the entire medical marijuana constitutional amendment to be nullified and stricken from the Florida Constitution,” said Jason Gonzalez, an attorney with the Shutts & Bowen firm, who represented the department during last month’s trial. “I don’t think this is what you are intending to do, but it is what binding Florida Supreme Court precedent provides.”
Aside from that potential development, the greater impact of Redner’s lawsuit on the industry remains to be seen.
“I want Joe to be successful, but I don’t think he will be,” said Morgan. “The power of the state, the rule of the law, it’s in the favor of them and against Joe. There are some very conservative appointments throughout the judiciary, and that’s the invisible wall that people like Joe are up against.”
Pollara said the “home grown” issue was left out of the constitutional amendment on purpose.
“It’s really important to a lot of marijuana patients here around the country,” he said. “It’s economical to grow at home, but will he win? I have no idea. I don’t know if the country has an interest in the history of the issues and opinions that affect one individual.”
Sessa said the judge could rule in a number of ways, including allowing only Redner to grow his own cannabis. Or the judgment could be cast to include more patients. Either way, the case is likely headed for the appellate courts. And Sessa says it could spark more lawsuits.
“The amendment is not that specific,” he said. “Patients have the right, and if a doctor says that a juiced form is the way he should use it, he has that right.”
In January, Leon County Circuit Judge Karen Gievers denied a motion by the Florida Department of Health to dismiss Redner’s case. The judge also denied Redner’s motion for an emergency temporary injunction, which would have allowed him to grow marijuana plants during the court process. But she described Redner’s plea in the case as “constitutional in nature,” which allowed it to move forward.
If the case is appealed, Redner’s attorney, Lirot, would try again for an injunction.
“Every day counts with cancer,” he said, referring to his client. “Our next step would be to file a motion with the circuit court to lift the stay. If the court did that, then he would be allowed to do so. If the court doesn’t lift the stay and we go to the appellate court, that’s a unique situation. This is medicine. It’s not like someone is trying to build a condo on the beach. You can’t get back the days of treatment you loose.”
Perhaps the greatest impact of Redner’s case is the research and material submitted to the state as part of his argument. More than 200 pages of documents citing the history of cannabis as a medicinal substance, including studies performed by researchers in other countries, were presented in court.
“I think putting that in front of the Legislature, and presenting that in court on record is very important and one of the more significant things that have come out of this case,” Sessa said. “Even if he doesn’t get the ruling, it will put the health department on alert that patients are not happy with how things are being implemented.”