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Couple claims loophole allows for medical marijuana in home

Couple accused of growing marijuana, charged with intent to manufacture

St. Johns County Sheriff's Office booking photos of Scott and Marsha Yandell
St. Johns County Sheriff's Office booking photos of Scott and Marsha Yandell

JACKSONVILLE, Fla. – A St. Johns County couple is out of jail after being arrested for possessing marijuana with intent to manufacture.

The St. Johns County Sheriff's Office raided Marsha and Scott Yandell's house in February, after officers said they found enough marijuana in the couple's trash to "get an entire middle school high for the summer."

The couple's lawyer and legal administrator claim a Florida statute that's been in effect since 2001 allows a person to possess and cultivate marijuana legally, if the patient has a prescription from a doctor.

A local physician and lawyer told News4Jax the law is very vague and could be interpreted differently.

The law -- Florida Statute 456.41 -- essentially states that people can make "informed choices for any type of health care they deem to be an effective option" for treating certain medical conditions. The Yandell's legal team, Health Law Services, claims that should include medical marijuana if a physician says it's necessary.

"I would not be prescribing it. I would not use those terms to try and show that my prescribing it was within the law," said Dr. Harold Laski of Southside Medical Center.

Laski said Florida Statute 456.41, outlining a health care practitioner's options when prescribing medication, is broad and could be interpreted differently depending on who reads it.

The law says, "It is the intent of the Legislature that citizens be able to make informed choices for any type of health care they deem to be an effective option for treating human disease, pain, injury, deformity, or other physical or mental condition."

"This is where the problem lies: The word 'any.' Does this mean any legal? Or does this mean any?" Laski said. "What if someone wanted to use meth and said to them this was an alternative medicine? What if we wanted to use heroin? These are obviously illegal, and illegal in virtually every state in the U.S. Would this give them the ability to say, 'Hey, I have a doctor that says I need it'? And therefore this says any. I think the intent was more to be 'any legal' rather than just any. I think they just worded it wrong."

Health Law Services said if the alternative option is a controlled substance, then Chapter 893 of Florida law must provide an exemption for medical use.

Laski also pointed out that if marijuana for medical necessity was already legal, the state Legislature wouldn't have needed to pass the Charlotte's web law. Florida passed a law in 2014 allowing for a low-THC form of medical marijuana to be used.

The Yandells, who bonded out of the St Johns County Jail after appearing in court Tuesday, claim they were within their legal rights to possess marijuana in their home, because they had the approval of a doctor. According to their legal team, Health Law services, Florida Statute 456.41 doesn't strike out marijuana as an option. They said if a doctor prescribes it, it's legal. They also claim with that very prescription, it's legal to manufacture it for their own medical use, because they say state laws define cannabis to include the manufacturing process.

"It looks like they've looked at different areas of the law and determined certain things fit the bill," Jacksonville attorney Mitch Stone said. "It's a good creative lawyer, I'll give them that. What would definitely create an issue, where the rubber meets the road in any type of situation like this, is how the courts are going to interpret what their interpretation is."

Stone said the entire situation carries risk.

"In my view, it's not clearly defined, and it may be something that they ultimately are right on, but you have to be willing as a person who's going to engage in this, you have to be willing to understand where the fight is going to be involved in, and it might be in the criminal court system with your freedom at risk," Stone said.

Stone said right now, in his opinion, Florida law states very clearly that possessing, manufacturing or distributing marijuana is illegal and could result in serious jail time. He said until the law changes, trying to interpret existing laws is probably not going to work.