Published on:
Wednesday, July 31, 2019

Joe Redner Appeals ‘Home Grow’ Decision to State Supreme Court

Semantic Gymnastics play a major role as the Redner Home Grow Case goes before the State Supreme Court.

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 “is” is.

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 “use”.

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

The 1st District declined to reconsider the decision or to send the case to the Supreme Court as a “question of great public importance.”

On June 26, Joe took matters into his own hands by asking for a “Notice to invoke Discretionary Jurisdiction,” which is a case where the supreme court isn’t required to take the case. A notice doesn’t require an argument, but it stated that the 1st District Court of Appeal’s decision “expressly construes(interprets) a provision of the state constitution. The decision also expressly and directly conflicts with Supreme Court of Florida precedent.”

In the petitioner brief that Team Redner, which includes Akerman LLP attorneys Kristen Fiore and Ari Gerstin filed on July 29, they went into detail. 

It stated once again that Amendment 2, passed into law in 2016, “authorizes Floridians suffering from debilitating conditions to engage in the “medical use” of “Marijuana” pursuant to the recommendation of a duly-qualified Florida licensed physician, without having to fear criminal prosecution under state law.

It goes on to explain that the amendment gave three pertinent provisions: 

  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.
  2. “Medical use” 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’s designated qualifying patient for the treatment of a debilitating medical condition, and
  3. “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.”
  4. Finally, that meaning of cannabis is; “ 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.

Judge Gievers noted that the Department of Health, in writing the rules based on the statute from the bill passed by the legislature, unconstitutionally limited the scope of the immunity from prosecution that the amendment provided by excluding the growing plant 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, as included in the definition of Marijuana noted in the Amendment for his Medical use, he has immunity from prosecution for the possession and use of fresh marijuana plant material for his cancer.

Seems straightforward, right? But the appeals court reframed the question and ignored the “medical use” immunity and concentrated on the word, “use”, claiming that Mr. Redner believed that “use” included the ability to cultivate and process. But, of all the definitions laid out in the amendment, the plain language word “use” was not defined per se. To quote the brief, “In reaching its holding, the Decision (of the Appeals Court) acknowledges that Mr. Redner seeks to “use” “marijuana” and that the Amendment does not define “use” but does not apply that term’s plain meaning or consult a dictionary.” 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, “ 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”, which is all well and good but has nothing to do with the immunity of a qualified patient seeking “Medical use”. But their argument in the 1stDCA decision was that only MMTC’s can cultivate and process, even though there is no definition that attaches the word “use” to MMTC’s in that manner, either.

Regarding the Supreme Court Precedent mentioned in the notice, the brief noted that, in a previous case, the Supreme Court held that “the text of a statue cannot be accorded different meanings based on the context in which it is applied”. In other words, for the purpose of medical use immunity, the definition of “marijuana” 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.

Here is another interesting point. In the Florida Statute, 381.986 Medical use of marijuana as it is currently written: 

“Medical use” 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.

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 “use” cannabis as their doctor recommended when fresh plants, high in THC-A, are required?

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 Eland noted, “I think we’ve 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’s going to create confusion all over the state unless the Court settles it by correcting this obvious error in the state’s enforcement of the constitution.”

But Joe nailed it down. “I’m pretty confident in our argument. I think it’s the law. I have faith in our argument.” Does he think the Supreme court will hear the case? “I think they have to. This is a brand-new amendment; I think it has to be explained…They didn’t define “use” because they didn’t want to. “Use” is “Use”. It doesn’t make any difference. There is only one definition.”

Unless it depends on what they think “is” is.


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