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(fl) Judge: Joe Redner can legally grow his own marijuana

Justine Griffin

Published: April 11, 2018

A court ruled Wednesday that Tampa strip club owner Joe Redner can grow his own marijuana for medical purposes, a decision that lawyers say could lead to a wave of similar cases.

The ruling by Leon County Circuit Judge Karen Gievers applies only to Redner, 77. The Florida Department of Health responded quickly, filing an appeal.

The department had said Floridians are barred under state rules from growing cannabis for their personal use, including those who are legally registered as medical marijuana patients.

But 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. Redner is a stage 4 lung cancer survivor and a registered medical marijuana patient.

“Under Florida law, Plantiff Redner is entitled to possess, grow and use marijuana for juicing, soley for the purpose of his emulsifying the biomass he needs for the juicing protocol recommended by his physician,” Gievers said in her ruling. The word “solely” is bolded and underlined for emphasis in the document.

“The court also finds … that the Florida Department of Health has been, and continues to be non-compliant with the Florida constitutional requirements,” the judge added, referring to the constitutional amendment approved by voters in 2016 that made medical marijuana legal.

Redner’s attorney, Luke Lirot of Clearwater, said the judge was right to “castigate the health department for being a barrier to medicine.”

While the ruling affects only Redner, Lirot says his case “does provide a usable approach for other people whose doctors will certify that this is of value.”

In the meantime, the state’s appeal will block Redner from growing his own marijuana right away. Lirot said his first order of business will be to try to lift the stay that prevents Redner from growing and juicing marijuana during the appeals process, which likely won’t begin until late this year or early next year.

“The appellate process takes a long time, and in this case, it’s going to affect Redner’s life exclusively,” said Jay Wolfson, a professor at Stetson University College of Law and the Morsani College of Medicine at the University of South Florida. “Because this issue is big enough, no matter who loses in appeals, the case will go on the state supreme court after this. You can bet on that.”

In January, 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.

In her ruling, Gievers says the health department “has still not complied with the Constitution,” and until it stops “violating its constitutional duty and mandated presumptive regulation, the evidence clearly demonstrates that Redner is entitled to follow the recommendations of his certified physician under Florida law.”

“The Legislature failed to act and that has a lot of consequences. This case is one of them,” said Leslie Sammis, a Tampa-based defense attorney who is also a member of the The National Organization for the Reform of Marijuana Laws legal committee. “I think that the state and the health department should focus their energy on coming into compliance with this court order instead of stalling until it’s forced upon them by the courts.”

During a short, non-jury trial in March, attorneys representing the health department warned that Redner’s case could open the door to more lawsuits over the constitutional amendment’s language. Several lawsuits already have been filed against the department, but none other than Redner’s has specifically challenged the state agency’s interpretation of the amendment’s language.

“It is my understanding that the health department is facing many pending lawsuits,” Wolfson said. “It’s a legal quagmire.”

Redner says this means other patients should be able to challenge to possess their own plants, too.

“With this order, (patients) can go to their doctor now, and as long as they have a good enough reason to need to possess a plant, be it because they can’t afford the medicine at the dispensaries, as long as they have a recommendation anyone should be allowed to grow,” Redner said. “The cat is out of the bag. There’s no way to stop this now.”

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St. Petersburg marijuana grow house charges dropped; others may follow

St. Petersburg marijuana grow house charges dropped; others may follow

By Stephen Nohlgren, Times Staff Writer
In Print: Wednesday, March 21, 2012

LARGO — Amid allegations that narcotics deputies trespassed and lied to gather evidence, the Pinellas-Pasco State Attorney’s Office announced Tuesday that it is dismissing charges against an accused St. Petersburg marijuana grower and will reconsider dozens of similar cases.

The dropped case was against David Cole, 60, who said he was growing pot in his shed to treat his multiple sclerosis symptoms.

His attorneys were scheduled Tuesday to grill a key deputy under oath about possible misconduct within the narcotics unit. But that opportunity evaporated along with the case.

"Information came to light Friday that calls into question the veracity of those involved in making that case to the point where I believe the right thing to do is to have that case dismissed,” Pinellas County Sheriff Bob Gualtieri said on Tuesday.

Gualtieri would not give more details because his internal affairs office is now investigating how the Cole case and others stemming from the two-year surveillance of a Largo hydroponics store were handled.

Sworn search warrant applications by deputies Paul Giovannoni and Michael Sciarrino — the lead detectives in the grow house cases — said they could smell indoor pot farms from public sidewalks and neighbors’ yards. But defense attorneys think that the two deputies and at least one supervisor trespassed to get their information, which is illegal.

Neither Gualtieri nor Beverly Andringa, executive assistant state attorney, could pinpoint Tuesday how many grow house cases are in jeopardy, saying only that they number in the dozens.

"We need to look at them all,” Gualtieri said. "Because the information we have goes to general veracity. Once there is that allegation, then it touches anything that certain people may have touched.”

Giovannoni and Sciarrino declined to comment.

Cole said he was relieved to have the charges dropped. He was caught with 87 plants at varying stages of growth and acknowledges that medical marijuana is illegal in Florida. He had no criminal history in Florida and says his attorney advised that he probably could have plea bargained for nothing more than probation as punishment.

But when he heard the deputies might have trespassed and lied about it, Cole said, he told his attorney to reject any plea bargain and use his case to pressure the Sheriff’s Office for answers. He was particularly angered by concrete blocks stacked in stair-step fashion on his neighbor’s property next to his fence. Cole thinks officers might have put them there to vault his fence.

"We have to make sure that the people we employ for our protection acted appropriately,” Cole said Tuesday. "That’s more important to me than what happens to me.”

Cole’s case is where Tuesday’s canceled deposition of former narcotics deputy Kyle Alston came in.

Alston had already been deposed in February, in a Tarpon Springs grow house case. Defense lawyer Newt Hudson asked if Alston had ever seen Sciarrino and Giovannoni "climb over fences,” shorthand for trespassing.

Alston refused to answer.

Hudson is now trying to use this refusal, along with other information, to have his Tarpon Springs client’s search warrant thrown out, killing any prosecution.

Hudson also alerted other grow house lawyers, some of whom are sharing information and call themselves the Scent of Justice Gang in mocking reference to the marijuana sniffing.

Clearwater lawyer Douglas deVlaming scheduled Alston to give testimony in Cole’s case on Tuesday, this time with a judge standing by to rule on whether Alston had to answer questions.

"We believe Kyle Alston was going to come in and testify to the truth . . . that these guys were jumping fences,” deVlaming said Tuesday. "And I also believe Kyle Alston has told that to internal affairs.”

Alston declined to comment.

DeVlaming applauded the sheriff and the state attorney for re-evaluating all the grow house prosecutions but said defense lawyers will continue to subpoena Alston for testimony in other cases as long as any charges are pending.

DeVlaming also said State Attorney Bernie McCabe should convene a grand jury to examine the grow house cases, or federal prosecutors should weigh in.

"We want to have confidence that we can trust police officers,” deVlaming said, "and quite frankly, dropping cases and throwing a few underlings under the bus isn’t going to cut it with us.”

Gualtieri estimated it would take about three weeks to complete an internal affairs investigation.

"I met with my captain this morning. We are trying get it done fairly, but also as quickly as possible,” Gualtieri said. "I don’t want a rush to judgment.”

Besides re-evaluating pending grow house cases, both he and Andringa said they will also examine investigative techniques on cases recently resolved through plea bargains or convictions.

"Many (cases) may be involved before it is all said and done.” Gaultieri said. "Many may go.”

Information about alleged trespassing surfaced in the last few weeks, he said. Cole’s case was one of several under scrutiny when deVlaming subpoenaed Alston for deposition.

The timing of Tuesday’s scheduled deposition accelerated the decision to drop Cole’s charges, Gualtieri said.

"Depending on what questions are asked in deposition it could frustrate our investigation because (defense lawyers) don’t know what we know,” Gualtieri said. "They don’t know where we are going and what we need to do. That could cause information to get out and affect other witnesses in this investigation.”

That argument is not swaying defense attorneys to back off.

Clearwater lawyer Bjorn Brunvand said he will seek an expedited deposition in the next few days of Alston, Gualtieri and a Progress Energy Florida employee who helped officers find out how much power grow house suspects were using.

"I would not be surprised if the same thing happened in my case,” Brunvand said, referring to charges against Cole being dropped.

Largo lawyer John Trevena said complaints against the grow house deputies date back to 2008. One client was caught with 93 plants and sentenced to three years in prison after a detective secured a search warrant by stating that he could smell marijuana from a sidewalk.

Trevena said he had a National Weather Service meteorologist ready to testify that the wind was blowing away from the detective that night, but nobody in the court system would listen.

He will also seek depositions if his clients’ cases aren’t resolved, Trevena said. "I am not going to let my clients’ futures rely on (the sheriff’s) investigation. I am going to conduct my own investigation.”

Stephen Nohlgren can be reached at (727) 893-8442 or nohlgren@tampabay.com.

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