Florida’s Medical Marijuana Once Again Threatened by Unnecessary Legal Setbacks

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The resignation of Florida’s medical marijuana chief on August 17, 2018, and a series of recent court losses, has once again threatened the state’s efforts for controlled legalization of marijuana.

On August 2, 2018, a Tallahassee judge struck down the licensing structure that the state Legislature and Department of Health (DOH) enacted for medical marijuana providers. In his order, Circuit Judge Charles Dodson said the state’s imposition of a cap on the number of medical marijuana treatment centers and its requirement for vertical integration from growing to dispensing “directly contradicts” a 2016 amendment to the Florida Constitution.

“Implementing” the Law or Impeding the Law?

In 2014, the Florida Legislature took the first step toward a sane approach to marijuana by legalizing a non-euphoric strain, known as Charlotte’s Web.

In November 2016, Amendment 2 to the Florida Constitution, legalizing medical marijuana, passed with 71 percent approval, its authorization for medical use. However, since that happened, state officials, state bureaucrats and the state legislature have done nothing but attempt to restrict and impede its use, ignoring the will of the people they are supposed to be serving.

The legislature passed an “implementing” law for the amendment in 2017, but the rule-making process and initial rollout has been slow and bogged down by complex litigation. To read more on the law, click here.

Attempts to artificially limit the number of growers, the number of dispensaries, and the forms that are legal to use, have all been used to impede implementation.

Such herculean efforts by state bureaucrats and legislatures, who are supposed to be carrying out the will of the citizens, is unconscionable. Even when the Florida Constitution itself requires them to preform certain duties, they just obstruct, obstruct, obstruct. Thank goodness for conscientious judges like Judge Dodson, who honor the law, follow the law, and will hopefully help enforce the law, regardless of the politics of those who chose to ignore and impede it.

This just shows that future constitutional amendments concerning the legalization of marijuana and marijuana products, and I am sure nothing less than additional constitutional amendments will be required, will need to state that they are self-implementing and no act of the state legislature or rule of any state agency is required carry it out. In fact, any such future constitutional amendment should specifically prohibit them from interfering with its implementation.

Ongoing Legal Battles.

With the recent rulings rejecting a smoking ban and saying a cancer patient can grow his own plants, experts fear that Judge Dodson’s August ruling will drastically alter the current landscape. Lawyers, who specialize in the field of marijuana law, say this ruling has the greatest potential impact of any decision to date. Additionally, banking and money issues, litigation and politics have continued to shake up the outcome.

Thanks for attorney John Morgan and other advocates who take up and challenge the attempts to fight the will of the people of Florida. During the next election, marijuana advocates should run advertisements specifically targeting those officials who enacted legislation or who attempted to enact agency rules placing obstacles to implementing the constitutional amendment.

What Outcome is Best for the State of Florida?

The state of Florida has the potential to become one of the nation’s largest markets for medical marijuana, likely worth billions of dollars. It has the third-largest population, which is growing and features a large number of elderly residents, lawyers noted. So, when it comes to medical marijuana, the question remains, “What is best for the state of Florida in the long run?”

To learn more on the status of Florida’s marijuana legalization, click here to read one of my prior blogs. Be sure to check our Marijuana Law Blog regularly for updates.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact the Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hale, Nathan. “Fla. Medical Marijuana Measure May Boost Business For Firms.” Law360. (October 25, 2016). Web.

Hale, Nathan. “Setbacks Shake Up Fla.’s Medical Marijuana Rollout.” Law360. (August 17, 2018). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

KeyWords: Florida medical marijuana legislation, medical marijuana representation, marijuana attorney, medical marijuana lawyer, marijuana defense attorney, legal representation for medical marijuana issues, Florida marijuana law attorney, marijuana law defense lawyer, representation for marijuana growers, representation for marijuana distributors, defense attorney for marijuana growers, defense attorney for marijuana distributors, defense lawyer for medical marijuana, decriminalization of marijuana in Florida, health law defense attorney, Florida medical cannabis representation, medical cannabis lawyer, cannabis defense lawyer, medical marijuana defense attorney, health lawyers for marijuana distributors, legal counsel for marijuana growers and distributors, medical marijuana laws, medical marijuana legalization, recreational marijuana laws and regulations, legal representation for recreational marijuana in a business, legal counsel for marijuana law, legal representation for marijuana criminalization, legal representation for marijuana regulations, The Health Law Firm reviews, reviews of The Health Law Firm attorneys

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

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Colorado Health Board Rejects Medical Marijuana Proposal for PTSD Treatment

By Carole C. Schriefer, R.N., J.D., The Health Law Firm

On July 15, 2015, the Colorado Board of Health denied a bid to approve medical marijuana as a treatment for post-traumatic stress disorder (PTSD). Colorado is known for pushing the boundaries with marijuana, but health officials rejected the idea that it can be an effective form of treatment for PTSD patients. The board voted against the recommendation of the state’s chief medical officer and marks the third time Colorado’s health officials have said ‘No’ to including PTSD on its marijuana approved list of uses.

Is Marijuana Medicine?

The Colorado Board of Health voted 6-2, to reject a petition for PTSD to be considered a “debilitating condition” and can be treated with medical marijuana. Several veterans testified that marijuana saved their lives, but some board members believed that there was not enough scientific evidence or medical trials to support this claim. The board, many of them physicians, said they couldn’t approve a medical treatment that falls short of federal guidelines. To read this article in full from The Denver Post, click here.

Some of those attending the vote, noted that none of the conditions currently approved for medical marijuana cards, including AIDS, epilepsy and glaucoma, has the kind of scientific evidence or research to support the claim To read more of this from the Associated Press, click here.

To read a past blog on marijuana policy, click here.

Vote Yes.

According to The Denver Post, supporters of the proposal say that rather than focusing on the hard science, the needs of patients should also be considered. If it had been approved, it would have allowed physicians to recommend certain medical marijuana strains to provide relief without a ‘high’, according to Teri Robnett, director of the Cannabis Patients Alliance. Click here to go to their website and learn more about the Cannabis Patients Alliance.

Legal But With Limits.

Voters in Colorado have approved the legal use of marijuana for medical and recreational purposes, but government officials have not been quick to jump on board. Despite this recent rejection, Colorado has approved the use of marijuana for various health ailments. Colorado’s approved list of uses for medical marijuana currently includes muscle spasms, epilepsy, cancer, severe glaucoma and nausea. Currently, nine states allow physicians to recommend medical marijuana treatment for PTSD patients. To read a past blog on uses of medical marijuana, click here.

Comments?

Do you agree that PTSD should be excluded from the medical marijuana approval list? Do you approve of using medical marijuana as a treatment? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact the Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.


Sources:

Draper, Electa. “Colorado Board Voted No on Allowing Medical Marijuana for PTSD.” The Denver Post. (July 15, 2015). From: http://www.denverpost.com/news/ci_28487952/colorado-board-votes-no-allowing-medical-pot-ptsd

Gray, Eliza. “Colorado Health Board Votes ‘No’ on Treating PTSD With Marijuana.” Time. ( July 15, 2015). From: http://time.com/3960940/colorado-ptsd-marijuana/

Coffman, Keith. “Colorado Rejects Medical Marijuana for PTSD Treatment.” Reauters. ( July 18, 2015). From: http://www.reuters.com/article/2015/07/16/us-usa-colorado-marijuana-idUSKCN0PQ0CC20150716

Wyatt, Kristin. “Pot-pioneering Colorado rejects marijuana as PTSD treatment.” Associated Press. (July 16, 2015). From: http://bigstory.ap.org/article/ce4bcc9493e1470aa56a40ef0b7c95e3/colorado-land-pot-experimentation-rejects-ptsd-use

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

KeyWords: Colorado Board of Health, Colorado Marijuana law, Cannabis Patients Alliance, post-traumatic stress disorder, PTSD, medical marijuana for PTSD treatment, PTSD treatment, medical marijuana approval list, medical marijuana treatment, licensed medical marijuana user, medical marijuana defense attorney, marijuana lawyer health law, health care attorney, health care lawyer, medical cannabis, health law firm, The Health Law Firm
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

By |2024-03-14T10:02:01-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: , , , , , , , , , , , , , , , , |Comments Off on Colorado Health Board Rejects Medical Marijuana Proposal for PTSD Treatment
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Florida Physicians Allowed to “Recommend” But Not “Prescribe” Medical Marijuana for Patients

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Under the Compassionate Medical Cannabis Act of 2014, Florida patients suffering from cancer or a physical medical condition that produces chronic symptoms of seizures or severe and persistent muscles spasms can qualify for the use of low-THC cannabis.

To read the full legislative language of the Florida compassionate-use act, click here.

Florida has been preparing physicians to qualify patients for the use of medical marijuana for nearly a year. So far, only 42 doctors have completed the process for the medical marijuana program, which consists of passing an eight-hour continuing education course and a subsequent examination.

However, after all other alternative treatment options have proven to be unsuccessful, even registered physicians will not be prescribing the drug low in the chemical tetrahydrocannabinol (THC) and high in cannabidiol (CBD) to patients qualified for its use. This is because prescribing marijuana in any form, even low-THC cannabis, is against federal law. Therefore, the way Florida law is written, qualified physicians may “recommend” or write a “recommendation” for medical marijuana for a patient.

Prescribing Medical Marijuana is a Violation of the Federal Controlled Substances Act.

In order to prescribe controlled substances, physicians must first register with the Drug Enforcement Agency (DEA). The DEA categorizes each controlled substance by potency, potential for abuse and accepted safety or medical use with schedules utilizing roman numerals.

Medical marijuana (even low-THC cannabis) is categorized as a Schedule I drug, meaning it currently has no accepted medical use in treatment in the United States, it has no accepted safety for use under medical supervision and it possesses a high potential for abuse. Schedule I drugs are illegal to prescribe, even by physicians registered with the DEA.

For more information on prescribing controlled substances from the American Nurses Association, click here.

How Will Qualified Patients Receive Medical Marijuana for Treatment?

While physicians are barred from prescribing low-THC cannabis, despite the compassionate-use act that became effective on January 1, 2015, physicians registered in the program will instead be providing qualified patients with”physician certifications.” A physician certification for a qualifying patient is basically a written document signed by a physician.

The document must profess the physician has examined the patient and currently maintains a treatment plan for the patient, and in the physician’s professional opinion such patient suffers from a “debilitating medical condition,” as specified by Florida law. Furthermore, the physician must assert that all other alternative treatment options have been unsuccessful in relieving symptoms associated with the patient’s illness.

Other conditions apply for qualifying patients and for physician ordering of medical marijuana. For more information on additional requirements, click here to refer to Section 381.986, Florida Statutes.

Will Physicians Face Federal Prosecution for Providing Qualified Patients with Medical Marijuana?

In a press release issued by the Department of Justice in October of 2009, Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that possess laws authorizing the use of medical marijuana. Attorney General Holder emphasized that the focus of federal resources should not be on the individuals acting in compliance with state laws. However, prosecution will continue for those individuals claiming to comply with state laws but acting against the terms, conditions and purposes of those laws.

To read the full press release by the Department of Justice dated October 19, 2009, click here.

In a memorandum issued by Deputy Attorney General David W. Ogden, dated October 19, 2009 and referenced by Attorney General Holder, the Deputy Attorney General states in pertinent part:

“The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime…The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority…As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

To read the full memorandum for more information on what constitutes “clear and unambiguous compliance,” click here.

To read a more recent memorandum of Deputy Attorney General James M. Cole, stressing the importance of strong regulatory and enforcement systems in states where medical marijuana is legal, click here.

Finally, to read the DEA’s Position Paper on Marijuana, click here.

Comments?

Are you signing up as a physician authorized to order medical marijuana for qualified patients in the state of Florida? If no, is it because you are concerned about possible federal prosecution?

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Department of Justice, Office of Public Affairs. “Attorney General Announces Formal Medical Marijuana Guidelines.” Press release. 19 Oct. 2009. Web. 28 Oct. 2015.

Powers, Scott. “Marijuana Program Draws 42 Doctors Statewide.” Health. Orlando Sentinel: 19 Aug. 2015. Web. 20 Oct. 2015.

Sherman, Amy and Gillin, Joshua. “PolitiFact Florida: Will Doctors Write Prescriptions for Medical Marijuana if You Have an Itchy Back?” PolitiFact Florida. Tampa Bay Times: 23 Feb. 2014. Web. 20 Oct. 2015.

Wright, Esq., Brian K. “The Regulatory Impact of Medical Marijuana on Health Care Providers and Other Stakeholders.” PowerPoint presentation. Web. 13 Oct. 2015.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

Keywords: Compassionate Medical Cannabis Act of 2014, Florida medical marijuana, low-THC cannabis in Florida, medical marijuana, medical marijuana lawyer, qualifying patients for medical marijuana, medical marijuana defense attorney, defense lawyer, health lawyer, health law attorney, physician certifications for medical marijuana, cannabis for treatment of debilitating medical condition, medical marijuana ordering physician, medical marijuana federal prosecution defense attorney, prescribing controlled substances, DEA defense lawyer, guidelines for federal prosecutors, compassionate-use in Florida, Drug Enforcement Agency physician registration, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

By |2024-03-14T10:02:01-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: , , , , , , , , , , , , , , , , , , |Comments Off on Florida Physicians Allowed to “Recommend” But Not “Prescribe” Medical Marijuana for Patients
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Federal Judge Challenges the Justice Department’s Interpretation of Federal Law Restricting Medical Marijuana Prosecutions

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In a federal case involving a California-based medical marijuana dispensary and the United States, regarding a motion to dissolve a permanent injunction, a federal judge challenged the Department of Justice’s (DOJ) so-called “tortured” interpretation of the law.  U.S. District Judge Charles Breyer pronounced that the DOJ’s interpretation is “at odds with fundamental notions of the rule of law.”  Judge Breyer went so far as to say that the DOJ’s analysis of the plain language Amendment was “counterintuitive and opportunistic.”

At issue in this case is a law passed last year by Congress which purposes to restrain the Justice Department’s efforts to prevent the implementation and use of medical marijuana in states where it has been legalized.  The applicable portion of the federal law in dispute is Section 538 of the 2015 Appropriations Act (otherwise known as the “Rohrabacher-Farr Amendment”).  The Amendment states that the DOJ is barred from using federal funds to “prevent such States [where medical cannabis has been legalized] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

The federal court decision found that the DOJ incorrectly interpreted the federal law to mean that it cannot prosecute the state itself for implementing mandates authorizing the use of marijuana for medicinal purposes but that it could still prosecute individuals and businesses carrying out state mandates or operating within state law.

To read the order of the court regarding briefing and hearing in United States of America v. Marin Alliance for Medical Marijuana and Lynette Shaw, click here.

DOJ Issues “Cole Memo” to Clarify.

Former Deputy Attorney General James Cole wrote a memo to all U.S. attorneys stating that the DOJ would exercise prosecutorial discretion and not pursue marijuana cases in those states where it is legal relying upon:

“[an] expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.”

This has now come to be known as the “Cole memo.”  Click here to read the Cole memo in its entirety.

Facts of the Federal Court Case.

Marin Alliance for Medical Marijuana (“Marin Alliance”) based in Fairfax, California, closed its doors in late 2011, folding under pressure from the federal government, even though it was operating legally according to California law.  It was known as the state’s oldest marijuana dispensary.  It first opened its doors in November 1996, when California legalized medical marijuana.

Marin Alliance was initially targeted by the DOJ due to its close proximity to Bolinas Park.  According to federal law, medical marijuana dispensaries cannot be within 1,000 feet of a park or school, to deter the sale of cannabis to minors.  Owner and director, Lynette Shaw, who is herself a recipient of medical marijuana, maintains she was always cognizant of and in compliance with state laws.

A Favorable Ruling for Medical Marijuana Advocates.

Although medical marijuana dispensaries and users had consistently lost in federal court despite the support of local law, the Amendment codified as section 538 of the federal funding bill last year was the persuading factor for a victory for Marin Alliance.  U.S. District Judge Charles Breyer challenged the DOJ’s interpretation of Section 538 of the 2015 Appropriations Act, asserting that the DOJ’s stance “so tortured the plain meaning of the statute.” Judge Breyer further stated “it defies language and logic for the Government to argue that it does not ‘prevent’ California from ‘implementing’ its medical marijuana laws by shutting down these same heavily-regulated medical marijuana dispensaries.”

To read the full order of the court in this case, click here.

The Need for Congruence Between State and Federal Law.

Despite its growing acceptance as a medicinal treatment in 23 states across the nation (and four states legalizing its use for recreational purposes as well), marijuana has yet to be removed from the federal list of restricted drugs.  The looming threat of prosecution by the DEA for using or dispensing medical marijuana, even within compliance of state law, is enough to deter many from seeking its benefits for patients.

Click here to read one of our previous blog posts regarding federal prosecution for medical marijuana treatment.

Comments?

Do you agree with the U.S. District Judge’s ruling?  Why or why not?

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Adler, Jonathan H.  “Court Rules Federal Government May Not Spend Money to Enforce Drug Laws Against Marijuana Dispensaries Legal Under State Law.”  The Washington Post.  20 Oct. 2015.  Web.  9 Nov. 2015.

Ingraham, Christopher.  “Federal Court Tells the DEA to Stop Harassing Medical Marijuana Providers.”  The Washington Post.  20 Oct. 2015.  Web.  9 Nov. 2015.

Phelps, Timothy M.  “Ruling Reins in Justice Department on Medical Pot.”  Orlando Sentinel: A22.  8 Nov. 2015.  Print.  9 Nov. 2015.

Schwartz, Carly.  “Marin Alliance for Medical Marijuana, California’s Oldest Pot Club, Closes.”  San Francisco.  Huff Post: 22 Dec. 2011.  Web. 9 Nov. 2015.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.


Keywords: 2015 Appropriations Act, Rohrabacher-Farr Amendment, medical marijuana, cannabis for medicinal treatment, medical marijuana lawyer, medical marijuana defense attorney, defense lawyer, health lawyer, health law attorney, cannabis for treatment of debilitating medical condition, medical marijuana ordering physician, medical marijuana federal prosecution defense attorney, prescribing controlled substances, DEA defense lawyer, guidelines for federal prosecutors, compassionate-use in Florida, Drug Enforcement Agency physician registration, The Health Law Firm, medical marijuana dispensaries, medical marijuana compliance lawyer, medical marijuana legalization, Section 538 of federal funding bill

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

By |2024-03-14T10:02:01-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: , , , , , , , , , , , , , , , , , , , , |Comments Off on Federal Judge Challenges the Justice Department’s Interpretation of Federal Law Restricting Medical Marijuana Prosecutions
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CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of—Enactment of Medical Marijuana Law

The guest author of this article is Mark Rieber, Senior Attorney, National Legal Research Group.

In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth’s new medical marijuana law (“the Act”) in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth’s argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

The court found, however, that the Act effected a change in the statutory and regulatory landscape relevant to establishing probable cause for a search targeting such cultivation. After discussing the purpose and terms of the Act, the court held that a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime. “Missing are facts indicating that the person owning or in control of the property is not or probably not registered to cultivate the marijuana at issue.” Id. at 1165. Because the affidavit in the case before it did not set forth such facts, the court affirmed the order allowing the defendant’s motion to suppress.

About the Author: The author of this is article is Mark Rieber, Senior Attorney with National Legal Research Group in Charlottesville, Virginia. This case summary originally appeared on The Lawletter Blog. It is republished here with permission.

This article was originally published in The Lawletter Vol 38, No. 1.

By |2024-03-14T10:01:05-04:00May 15, 2018|Categories: Health Law, Medical Marijuana, Search and Seizure|Tags: , , , , , , , , , , , , , |Comments Off on CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of—Enactment of Medical Marijuana Law
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Cities All Over Florida Prepare for Medical Marijuana, Even Altamonte Springs!

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Medical marijuana stores are one-step closer to being able to operate in Altamonte Springs as officials give initial green light to proposed ordinances. The city commission voted unanimously Tuesday evening in favor of the new city ordinances that would require medical marijuana businesses to secure licenses from the city. To learn more about medical marijuana legislation in Florida, click here.

Click here to read a copy of the city commission’s agenda from Tuesday.

Establishing Ground Rules.

Altamonte Springs city officials are looking to establish certain guidelines for future medical marijuana related businesses that open within city limits. Under these proposed ordinances, businesses would be required to secure a medical marijuana permit from the city on an annual basis. The permits would restrict medical marijuana businesses to establish in industrial or very light industrial zoning districts.

The drafted rules also state that medical marijuana related businesses can only operate during certain business hours and cannot stand within 300 feet of a school, park or childcare center. “I think we’re very appropriately in front of this issue,” City Manager Frank Martz told the commission on Tuesday. These ordinances are set to return to the commission for a final vote in December.
To read further about medical marijuana legalization on Florida, read one of our past blogs here.

Comments?

Do you agree with these proposed ordinances? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Sources :

Rodgers, Bethany. “Altamonte prepares for medical marijuana.” Orlando Sentinel. (November 17, 2015). Print.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Florida medical marijuana, medical marijuana legislation, medical marijuana laws, medical cannabis, medical marijuana stores, medical marijuana license, medical marijuana legalization, medical marijuana lawyer, defense attorney, health lawyer, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.
By |2024-03-14T10:02:02-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: , , , , , , , , , , |Comments Off on Cities All Over Florida Prepare for Medical Marijuana, Even Altamonte Springs!
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How to Sign Up as a Prescribing Physician With the Compassionate Use Registry

Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law

Effective January 1, 2015, physicians will be able to prescribe low-THC cannabis for patients suffering from cancer or a chronic condition that produces symptoms of seizures or severe and persistent muscle spasms. On June 16, 2014, Florida Governor Rick Scott signed SB 1030 (Compassionate Medical Cannabis Act of 2014) into law, making it legal for qualified Florida patients to take low-THC cannabis. Click here to read SB 1030.

With the legalization of low-THC cannabis, state health officials are now left to sort out many details before physicians can prescribe medical marijuana.

How Florida Physicians Can Register to Prescribe Medical Cannabis.

If a physician intends to prescribe low-THC cannabis he or she will need to register as the prescribing physician for the patient on the compassionate use registry maintained by the Florida Department of Health (DOH). The proposed application forms are available on the DOH website.

Prescribing physicians must also complete an 8-hour course, and subsequent examination offered by the Florida Medical Association or the Florida Osteopathic Medical Association. The first course must be offered by October 1, 2014, and at least annually thereafter.

However, neither the Florida Medical Association nor the Florida Osteopathic Medical Association has published any information on the required course for physicians to become qualified to prescribe low-THC cannabis.

Florida Department of Health Still Working Out the Kinks.

The Compassionate Medical Cannabis Act of 2014 directs the Florida DOH to establish an Office of Compassionate Use to implement and manage the various aspects of the program. This group’s responsibilities include:

– Establishing a secure, electronic and online compassionate use registry for the registration of physicians and patients that will also be accessible to law enforcement;

– Authorizing the establishment of five dispensing organizations to ensure reasonable statewide accessibility and availability necessary for patients registered in the compassionate use registry;

– Creating a network of state universities and medical centers to enhance access to investigational new drugs for Florida patients through approved clinical treatment plans or studies; and

– Adopting rules necessary to implement the law.

The Department of Health Office of Compassionate Use will meet on September 5, 2014, to discuss proposed administrative code rules implementing Chapters 2014-157 and 2014-158, Laws of Florida, acts relating to cannabis and public records.

Be sure to check this blog regularly for updates from this meeting.

The Compassionate Medical Cannabis Act of 2014 is just the first step for Florida. A broader medical marijuana law, Amendment 2, will appear on Florida’s November ballot. If passed, Amendment 2 will legalize the growing, purchasing, possession and use of marijuana to treat medical conditions.

Comments?

Are you planning on registering with the compassionate use registry? Why or why not? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved

By |2024-03-14T10:01:05-04:00May 15, 2018|Categories: Medical Marijuana|Tags: , , , , , , , |Comments Off on How to Sign Up as a Prescribing Physician With the Compassionate Use Registry
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Pennsylvania House of Representatives Passes Medical Marijuana Bill

George F. Indest III HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On March 16, 2016, Pennsylvania’s House of Representatives passed a measure that would legalize medical marijuana in certain forms. The vote was 149-43, with all voting Democrats and more than half of Republicans in support of the bill. The bill now moves onto the Senate, which has already approved an earlier version of the measure 10 months ago.

Growth in Medical Marijuana Programs.

In 2014, the Senate approved medical marijuana legislation, but stalled in committee and never reached a vote in the House. In 2015, the original version of the bill passed the Senate by a 40-7 vote. House Sen. Mike Folmer, R-Lebanon, who is a major proponent of medical marijuana said, “We want to get this done ASAP.”

The bill that passed would establish a system of growers and dispensaries to provide marijuana to patients with certain conditions. These conditions include cancer, epilepsy, HIV and AIDS, and post-traumatic stress disorder (PTSD). All patients are required to be certified by a doctor.

The Stipulations of the Bill.

Under this bill, patients would be allowed to use marijuana in the form of a pill or oil, or through vaporization but they would not be allowed to smoke it. Sales from the dispensaries would be taxed at 5 percent, with the money paying for the Department of Health (DOH) operations for the program. It will also go toward law enforcement and drug abuse services and for research about medical marijuana in general.

Gov. Tom Wolf, indicated that he was eager to pass the legislation and sign the finished product. “We will finally provide the essential help needed by patients suffering from seizures cancer and other illnesses,” Mr. Wolf stated.

If you want to learn more about medical marijuana legislation, click here to read our medical marijuana law blog.  Be sure to check back regularly as we update our blog with helpful information frequently.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Packel, Dan. “Medical Marijuana Bill Clears Pa. House.” Law360. (March 16, 2016). Web.

Langley, Karen. “Pennsylvania House passes medical marijuana bill.” Post-Gazette Harrisburg Bureau. (March 16, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: medical marijuana, medical marijuana growers, medical marijuana cultivation, medical marijuana license, Pennsylvania medical cannabis, medical marijuana lawyer, marijuana attorney, low-THC cannabis, medical cannabis, Department of Health (DOH), Compassionate Medical Cannabis Act, medical marijuana regulations, The Health Law Firm, health law attorney, cannabis for treatment of debilitating medical condition, formal administrative hearing

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

By |2024-03-14T10:02:02-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: , , , , , , , , , , , , , , |Comments Off on Pennsylvania House of Representatives Passes Medical Marijuana Bill
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Cancer Patients Must Provide DOH Approval for Seizures and Muscle Spasms, or May Be Unqualified for Low-THC Medical Marijuana

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

Barnhart v. Dep’t of Health, Div. Admin. Hearings, Case No. 15-1271RP (Final Order April 10, 2015).

Following is a summary of a recent Division of Administrative Hearings case summary, taken from The Florida Bar Administrative Law Section Newsletter, Vol. 36, No. 4 (June 2015).

FACTS: On February 6, 2015, the Department of Health (“DOH”) published a notice of proposed rule-making setting forth the text of six proposed rules to implement the Compassionate Medical Cannabis Act of 2014 (“the Act”). The Act provides in part that certain physicians treating patients suffering from cancer or a condition that chronically produces seizures or severe muscle spasms may order low-THC cannabis for those patients’ treatment.

The Petitioner filed a Petition asserting that one of the proposed rules (64-4.002) is an invalid exercise of delegated legislative authority.  In support thereof, the Petitioner alleged that she is a four-year-old Florida resident diagnosed with an inoperable brain tumor, and she treats her condition with medical cannabis extracts. The Petitioner further alleged that she plans to register with the Office of Compassionate Use Registry to become a “qualified patient” for the medical use of low THC cannabis.

The Petition also contained allegations regarding the harm that would result without an adopted rule. For instance, the Petition alleged there is a “desperate need for access to low THC cannabis” and that expedited rule promulgation was necessary because the “selected applicants will be responsible for ensuring access to ordered medication, with greater risk of public injury if there is no access to medicine.” The Petition also asserted that potential applicants eligible to become dispensing organizations would be harmed by the proposed rule’s “overly burdensome” application, scoring, and selection process.

OUTCOME: After affording Petitioner leave to file an amended Petition, the ALJ dismissed the Petition due to a lack of standing when Petitioner chose not to file an amended Petition.

The ALJ concluded the Petitioner’s allegations failed to demonstrate that she could become a “qualified patient” and thus potentially eligible for a physician’s order to receive low-THC cannabis.

The ALJ noted that while the Petitioner alleges that she has an inoperable brain tumor, she does not allege that her “condition falls within the narrow parameters of the Act, that is, that Petitioner has cancer or that Petitioner’s medical condition chronically causes seizures or muscle spasms.” Moreover, even if Petitioner had sufficiently alleged that she could be a “qualified patient,” the allegations were insufficient to show that Petitioner would suffer a real or sufficiently immediate injury in fact resulting from application of the proposed rule.

However, the ALJ rejected DOH’s argument that a “qualified patient” could never have standing to challenge proposed rule 64-4.002. While noting that the proposed rule only addresses the application requirements, scoring, and selection process for dispensing organizations, the ALJ concluded that qualified patient status, “when adequately alleged, might, hypothetically, be sufficient as part of the predicate for standing to challenge rules implementing the Act.”

Editor’s Notes on Case Summary:

This case demonstrates a common situation for many Florida residents who suffer from conditions like cancer: denial of medical marijuana. The Compassionate Medical Cannabis Act of 2014 states that in order to qualify for the cannabis, the patient must produce symptoms of seizure and persistent muscle spasms. If the patient is younger than 18 years of age, a second physician must concur the initial physician’s determination. In this case, 4-year-old Dahlia Barnhart, who suffers from a brain tumor, failed to demonstrate that her condition produces seizures and spasms, and therefore was denied low-THC. In court documents, you must allege that you are eligible for the physician’s order.

Comments?

Do you think that 4-year-old Dahlia Barnhart qualifies for medical marijuana? Do you have a chronic condition that was denied medical marijuana? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact the Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

KeyWords: license, defense attorney, health law, health care attorney, health care lawyer, health investigation, medical license, Department of Health, DOH, health attorney, medical marijuana lawyer, medical cannabis, cannabis, marijuana, Compassionate Medical Cannabis Act, THC, medical THC, health conditions, cancer, cancer patients, brain tumor, petitions, Florida, Office of Compassionate Use, ALJ, administrative law judge, physicians, Florida marijuana, administrative hearing, petition for rule challenge

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

By |2024-03-14T10:01:06-04:00May 15, 2018|Categories: Marijuana Law Blog, Medical Marijuana|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |Comments Off on Cancer Patients Must Provide DOH Approval for Seizures and Muscle Spasms, or May Be Unqualified for Low-THC Medical Marijuana
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Orlando One Step Closer to Decriminalizing Marijuana as Commissioners Approve New Ordinance

Attorney George F. Indest III HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 18, 2016, Orlando moved a one step closer to effectively decriminalizing small amounts of marijuana. The City Council narrowly backed a measure that would allow officers to issue tickets to some people caught with the drug.

Orlando commissioners voted 4-3 to approve the ordinance, which would make possession of 20 grams (about two-thirds of an ounce) or less a violation of city code carrying a $50 fine for first-time offenders.

Marijuana Still Remains a State Crime.

Even if it passes, marijuana possession will remain a state crime in Florida. Orlando police Chief John Mina said officers may still make arrests even for small amounts in the future, depending on the circumstances including the offender’s record. Officers already have the option to confiscate small amounts of marijuana without making an arrest.

“This cannot [and] will not replace the criminal state statute … our officers will have the discretion to arrest in certain situations,” Mina said. “This just gives them another option.”

The council plans to take a final vote on the measure on May 9. If approved then, it would take effect immediately.

To read one of my prior blogs on marijuana legislation in Florida, click here.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Source:

Weiner, Jeff. “Orlando narrowly approves marijuana ordinance on first vote.” Orlando Sentinel. (April 18, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Florida marijuana legislation, decriminalization of marijuana in Florida, health care attorney, defense lawyer, health law defense attorney, medical marijuna, Florida medical cannabis, medical marijuana defense attorney, health law, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

By |2024-03-14T10:02:02-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: , , , , , , , , , |Comments Off on Orlando One Step Closer to Decriminalizing Marijuana as Commissioners Approve New Ordinance
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“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A.
The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.
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