Count Joe Redner, Tampa's outspoken strip club entrepreneur and a lung cancer patient, among the first to challenge the state's medical marijuana laws in court.
Less than two weeks after lawmakers put in place new laws governing growing, manufacturing and selling medical marijuana, Redner's lawsuit claims the state is not following the will of the public, which voted overwhelmingly last year to legalize it by passing a constitutional amendment.
Specifically, Redner wants to grow his own marijuana plants. But under Florida Department of Health rules, Floridians are barred from growing cannabis plants for their personal use, including those who are legally registered as medical marijuana patients. Redner's lawsuit is challenging those rules.
Those in Florida's expanding medical marijuana industry say Redner could be one of many to challenge the state's laws on pot.
Lawmakers have limited the selling and growing of marijuana to seven companies. The number will grow to 17 this year, based on last-minute legislation that came about during a special session in Tallahassee earlier this month.
That legislation also allows patients to use cannabis pills, oils, edibles and "vape" pens with a doctor's approval but bans smoking.
Redner's lawsuit is based on how the state constitution amended by voters defines marijuana. He suits claims that the definition includes "all parts of the plant."
Under the current rules, he said the dispensaries are left to decide what parts of the plant to use in its products. He said he wants to grow his own plants because he says he has no idea what he's getting from the state's licensed growers and distributors.
"I don't know if they're using pesticides or doing what's good for the plant," he said. "I'm a raw vegan. I am very careful about what I put into my body. And the amendment gives me the right to that."
Department of Health officials declined comment, citing the litigation.
Redner, 77, the owner of the Mons Venus strip club, is a registered medical marijuana patient in Florida and uses cannabis products to treat conditions related to his stage-four lung cancer. He also battled brain cancer in the past.
"I want to grow plants — plural. Twenty of them," he said in an interview. "I'm doing research right now and I want to be able to use it in juicing. To be effective enough, I need to grow 20 plants."
His lawsuit is seeking declaratory judgement on the merits of his claim and is not seeking any damages. He has been vocal about medical marijuana in the past, including speaking out against rules proposed by the Hillsborough County Commission to limit where dispensaries can operate.
More than 70 percent of voters in 2016 approved Amendment 2, expanding the legalization of medical marijuana in Florida from just the terminally ill and some other patients with epilepsy and cancer, to those with other debilitating conditions such as glaucoma, HIV/AIDS and post traumatic stress disorder, among others. Lawmakers struggled with how to implement the expansion, which is result in a $1 billion industry in Florida within the next three years.
The Department of Health currently oversees the state's seven current operators. Redner says he plans to apply for a dispensary license as well.
Those within the burgeoning industry say Redner's lawsuit will hardly be the last.
"I think the legislators for the most part did a good job given the oppositional context of passing legislation. But they also took liberties that were not afforded to them by the constitution," said Ben Pollara, executive director of Florida For Care, an organization founded in 2014 to advocate for the legalization of medical marijuana under Amendment 2. "I think you'll see lawsuits surrounding the policy positions and around the application process for becoming a licensed medical marijuana dispensing organization."
John Morgan, the high-profile Orlando trial attorney who bankrolled two Florida political campaigns to legalize it, also has threatened to sue over the ban on smokeable forms.
Pollara says that many other states have put provisions in place for patients who want to grow their own plants, and Florida is one of the few states that has not seriously considered it.
"It's not an extreme position," he said. "It's probably the single largest complaint that I've received over the last four and a half years doing this campaign."
Through the years, Floridians arrested for marijuana possession have argued in court with varying degrees of success that they were using the drug out of "medical necessity" to treat an illness. Jesse Teplicki won an acquittal in a Broward County court in 2015 after he was caught growing marijuana plants in his home that he said he used to treat his anorexia and nausea.
Redner's lawyer, Amanda Derby, says litigation like this just comes with the territory.
"New legislation calls for new litigation, unfortunately and fortunately," Derby said. "I think the amendment is pretty clear on its face, but the way it's set up gives the Department of Health so much power. I think if more patients find that growing their own provides better treatment, you'll see more litigation in the future."
Redner, a frequent but so far unsuccessful candidate for political office, is no stranger to the Florida court system. He once famously claimed he was gay in a 2005 federal lawsuit to challenge a ban on public recognition of gay pride events passed by Hillsborough commissioners.
"I've used the constitution as grounds to battle arrests in the past and I've gotten those arrests thrown out. It's pretty clear to me that the constitution gives me the right to challenge this. The state is not reading the amendment, they're not going by what it says," Redner said on Monday. "This is a health issue as far as I'm concerned."
Times Staff Writer Michael Auslen contributed to this report. Contact Justine Griffin at [email protected] or (727) 893-8467. Follow @SunBizGriffin.
Who can get medical marijuana in Florida?
Existing state law lets terminally ill patients buy and use full-strength marijuana in the form of vapor oils, capsules and lotions. Certain other patients, including children with cancer and severe epilepsy, can use low-THC (tetrahydrocannabinol) cannabis. While lawmakers and health officials write new marijuana laws that must go into effect this summer, the Florida Department of Health has left it up to doctors to decide whether they will also recommend cannabis to qualified patients diagnosed with a debilitating medical condition listed in Amendment 2, like Lou Gehrig's disease, cancer, epilepsy, Crohn's disease, HIV/AIDS, glaucoma, multiple sclerosis, Parkinson's disease or PTSD.
How to get it?
Patients must receive a "recommendation" from a certified doctor in Florida. Then patients can visit one of the seven licensed companies in the state to purchase a variety of marijuana products. The Department of Health requires patients to pay for and have a state identification card. Medical insurance policies don't cover the cost of medical marijuana products, and customers could pay from $30 to $250 on average a month. Most companies offer delivery services.
What can I get from a store or delivery service?
Medical marijuana products are offered in two forms in Florida: a low-THC (tetrahydrocannabinol) product, which has less of the chemical that causes a euphoric high, and a CBD (cannabidiol) cannabis oil. Products come in the form of tincture oils, oral sprays and vaporizer cartridges that are used in an e-cigarette or vapor pen. Buying "flower," or the bud of the plant sold in states where people can smoke it recreationally, is not currently legal in Florida.
What will change under the new law?
Patients can access the drug if they have chronic pain but only if that pain is connected to another qualifying medical condition. It allows patients to use cannabis pills, oils, edibles and "vape" pens with a doctor's approval but bans smoking. Ten new growers will get a license to open dispensaries, but as many as eight have been held for specific groups: Five for previous applicants to the existing, limited cannabis program, one for a member of the Florida Black Farmers and Agriculturalists Association and two for citrus processing companies, which will get priority, not a guaranteed license. Cities and counties can ban dispensaries, but they are not allowed to block delivery of cannabis or limit where pot shops can open more strictly than they do pharmacies.