{"id":2654,"date":"2019-07-30T15:15:11","date_gmt":"2019-07-30T19:15:11","guid":{"rendered":"https:\/\/cannachronicle.com\/?p=2654"},"modified":"2019-07-31T10:54:40","modified_gmt":"2019-07-31T14:54:40","slug":"joe-redner-appeals-home-grow-decision-to-state-supreme-court","status":"publish","type":"post","link":"https:\/\/cannachronicle.com\/2019\/07\/30\/joe-redner-appeals-home-grow-decision-to-state-supreme-court\/","title":{"rendered":"Joe Redner Appeals \u2018Home Grow\u2019 Decision to State Supreme Court"},"content":{"rendered":"\n

Semantic Gymnastics play a major role as the Redner Home Grow Case goes before the State Supreme Court.<\/strong><\/p>\n\n\n\n

Words and their intended and eventual meaning can have great impact and value, especially in law. President Clinton famously noted in his testimony that a statement can mean different things, depending on what your definition of \u201cis\u201d is.<\/p>\n\n\n\n

Then there is the case of Joe Redner v State of Florida, where Mr. Redner is asking to grow his own cannabis for juicing to treat his Stage VI cancer, which he has kept at bay for over 4 years. This case, which could set the precedent for home growing cannabis for medical use in Florida, may depend on the State Supreme Court mulling over what they consider is the definition of \u201cuse\u201d.<\/p>\n\n\n\n

On Monday, July 29, Mr. Redner took the second step toward having his case reheard in the State Supreme Court, after the 1st<\/sup> District Court of Appeals overturned last year\u2019s ruling by Tallahassee-based Circuit Judge Karen Gievers<\/strong>, now retired. Judge Gievers had decided that Emulsification, or juicing, of the \u201cbiomass of the marijuana plant\u201d was determined to be \u201cthe most effective way\u201d for Redner \u201cto get the benefit of medical marijuana.\u201d The appeal of her decision was brought by former Governor Rick Scott, soon after Judge Giever\u2019s ruling that would have allowed Joe to start growing. The appeal put a \u201cstay\u201d on the ruling, which stopped Mr. Redner from using it to give him legal access to his life-saving medicine, and the 1st<\/sup> DCA overturning the decision in April put a full halt to the possibility, barring further court action.<\/p>\n\n\n\n

The 1st District declined to reconsider the decision or to send the case to the Supreme Court even as a \u201cquestion of great public importance.\u201d<\/p>\n\n\n\n

Then, on June 26, Joe took matters into his own hands by asking for a \u201cNotice to invoke Discretionary Jurisdiction,\u201d which is a situation where the supreme court isn\u2019t required to take the case, but can consider doing it if the matter is pertinent to them. A notice doesn\u2019t require an argument, but it stated that the 1st District Court of Appeal\u2019s decision \u201cexpressly construes(interprets) a provision of the state constitution. The decision also expressly and directly conflicts with Supreme Court of Florida precedent.\u201d If valid, those situations would make the matter a part of the Supreme Court\u2019s jurisdiction, and a reason for them to hear the case. <\/p>\n\n\n\n

In the petitioner brief that Team Redner, which includes Akerman LLP attorneys Kristen Fiore and Ari Gerstin, filed on July 29, they went into greater detail. <\/p>\n\n\n\n

It stated once again that Amendment 2, passed into law in 2016, \u201cauthorizes Floridians suffering from debilitating conditions to engage in the \u201cmedical use<\/strong>\u201d of \u201cMarijuana<\/strong>\u201d pursuant to the recommendation of a duly-qualified Florida licensed physician, without having to fear criminal prosecution under state law\u201d.<\/p>\n\n\n\n

It goes on to explain that the amendment gave three pertinent provisions: <\/p>\n\n\n\n

  1. The medical use of marijuana by a qualifying patient or caregiver in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law.<\/li>
  2. \u201cMedical use\u201d means the acquisition, possession, use, delivery, transfer, or administration of an amount of marijuana not in conflict with Department rules, or of related supplies by a qualifying patient or caregiver for use by the caregiver\u2019s designated qualifying patient for the treatment of a debilitating medical condition, and<\/li>
  3. \u201cMarijuana\u201d has the meaning given cannabis<\/strong> in Section 893.02(3), Florida Statutes (2014), and, in addition, \u201cLow-THC cannabis\u201d as defined in Section 381.986(1)(b), Florida Statutes (2014), shall also be included in the meaning of the term \u201cmarijuana\u201d. So the meaning of cannabis is; \u201c all parts of any plant of the genus Cannabis<\/em>, whether growing or not; the seeds thereof;<\/strong> 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.<\/li><\/ol>\n\n\n\n

    Judge Gievers noted that the Department of Health, in writing the rules based on the statute from the bill passed by the legislature, unconstitutionally<\/strong> limited the scope of the immunity from prosecution that the amendment provided by excluding the growing plant<\/strong> noted in the definition. Therefore, if Mr. Redner is a qualifying patient, and a certified physician recommended that he should have access to a growing plant<\/strong>, as included in the definition of Marijuana<\/strong> noted in the Amendment for his Medical use, <\/strong>he has immunity from prosecution for the possession and use<\/strong> of fresh marijuana plant material for his cancer.<\/p>\n\n\n\n

    Seems straightforward, right? But the appeals court reframed the question and ignored the \u201cmedical use\u201d immunity argument and concentrated on the word, \u201cuse\u201d, claiming that Mr. Redner believed that \u201cuse\u201d included the ability to cultivate and process. <\/strong>But, of all the definitions laid out in the amendment, the plain language word \u201cuse\u201d was not defined per se. To quote the brief, \u201cIn reaching its holding, the Decision (of the Appeals Court) acknowledges that Mr. Redner seeks to \u201cuse\u201d \u201cmarijuana\u201d and that the Amendment does not define \u201cuse\u201d but does not apply that term\u2019s plain meaning or consult a dictionary.\u201d <\/strong><\/p>\n\n\n\n

    So the court circumvented the previous argument about limiting the scope of immunity and instead looked farther into the Amendment at the definition of an MMTC, and noted that, as a commercial entity (and not a qualifying patient seeking immunity) it, \u201c acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department\u201d, which is all well and good but has nothing to do with the immunity of a qualified patient seeking \u201cMedical use\u201d. But the conclusion in the 1stDCA decision was that only MMTC\u2019s can cultivate and process, even though there is no definition that attaches the word \u201cuse\u201d to MMTC\u2019s in that manner, either.<\/p>\n\n\n\n

    Regarding the Supreme Court precedent mentioned in the notice, the brief noted that, in a previous case, the Supreme Court held that \u201cthe text of a statue cannot be accorded different meanings based on the context in which it is applied\u201d. In other words, for the purpose of medical use immunity, the definition of \u201cmarijuana\u201d was given a much narrower scope than the amendment had delineated in its plain language. But for the purpose of imposing criminal responsibility, however, the same statutory definition was given the broadest meaning possible, like the definition that includes the plant, growing, or not.<\/p>\n\n\n\n

    Here is another interesting point. In the Florida Statute, 381.986 Medical use of marijuana<\/strong> as it is currently written: <\/p>\n\n\n\n

    \u201cMedical use\u201d means the acquisition, possession, use, delivery, transfer, or administration of marijuana authorized by a physician certification. The term does not include: Possession, use, or administration of marijuana that was not purchased or acquired from a medical marijuana treatment center.<\/p>\n\n\n\n

    Therefore, does that not imply that clones or seeds purchased from an MMTC are acceptable, and therefore allowable materials for Home Grow? Provided, of course, that patients can actually \u201cuse\u201d cannabis as their doctor recommended when fresh plants, high in THC-A, are required?<\/p>\n\n\n\n

    But the important thing is that the Supreme Court needs to address the amount of immunity offered in the Amendment that received over 71% of the vote in 2016. Team Redner member and Florigrown CEO Adam Elend noted, \u201cI think we\u2019ve got a critical issue for the Supreme Court here- there are Florida patients facing prosecution right now based only on the state using a different definition of marijuana for their charge and for their immunity. This is blatantly unconstitutional, and it\u2019s going to create confusion all over the state unless the Court settles it by correcting this obvious error in the state\u2019s enforcement of the constitution.\u201d<\/p>\n\n\n\n

    But Joe nailed it down. \u201cI\u2019m pretty confident in our argument. I think it\u2019s the law. I have faith in our argument.\u201d Does he think the Supreme court will hear the case? \u201cI think they have to. This is a brand-new amendment; I think it has to be explained\u2026They didn\u2019t define \u201cuse\u201d because they didn\u2019t want to. \u201cUse\u201d is \u201cUse\u201d. It doesn\u2019t make any difference. There is only one definition.\u201d<\/p>\n\n\n\n

    Unless it depends on what they think \u201cis\u201d is.<\/p>\n\n\n\n

    <\/p>\n

    <\/div>\n\n