Legal Marijuana Smoker Plants Seeds Of Court Action

Like any pack-a-day smoker, Irvin Rosenfeld has some problems traveling by airplane because of the government ban on lighting up while in flight. But it is Rosenfeld’s particular smoke — marijuana — and his need to light up once the plane touches down and during layovers that has landed him in some unusual situations.

Now it could land the Broward County man in federal court, accusing Delta Air Lines of violating the Americans with Disabilities Act.

The 48-year-old Boca Raton stockbroker with a rare and painful bone disease has smoked his legally prescribed, government-grown marijuana in smoking lounges, medical clinics and even police substations of airports. Marijuana eases the constant, piercing pain of his rare disease, he said; it doesn’t make him euphoric or “high.” He needs to smoke a joint about every two hours, so a long layover in an airport poses a logistical challenge for Rosenfeld.

For the past 19 years that he has used medical marijuana, he has called ahead, informed Delta of his medical needs and been accommodated with a spot to smoke.

In March, when he had to fly to Washington, D.C., to testify before the U.S. Supreme Court about medical marijuana use, Rosenfeld called in advance, as usual. He says he left messages and never got a call back.

But on March 26, the day of the flight and about 30 minutes before takeoff, he was paged and asked to report to Delta’s customer service counter. Speaking at his lawyer’s office on Wednesday, Rosenfeld recalled the exchange like this:

“I’m sorry, you won’t be allowed to board this flight,” a Delta employee told him. “We’ve been informed that you’re carrying marijuana.”

“Yes,” Rosenfeld said. “I’m the one who informed you.”

Rosenfeld explained he is one of seven people in the United States permitted to smoke marijuana. In his case it relaxes his muscles so the multiple tumors that form on the long bones in his body do not rupture muscle and veins, which could cause him to bleed to death.

He showed airline employees the prescription pasted to the plastic bag that holds 12 marijuana cigarettes, his average daily dose. Each month the prescription is taped to the tin canister stuffed with 300 marijuana cigarettes he gets in the mail. He showed them his name on the brief that was to be argued the next day in the Supreme Court.

The Delta employees said the airline’s lawyers wanted Rosenfeld to get a waiver from the government in each state the flight would pass over. Rosenfeld explained that he had never before received such a request from Delta.

“If I was a diabetic, would they expect me to board the plane without my insulin?” he asked. “They had a problem with me because my prescribed medication is marijuana. That’s a violation of the Americans with Disabilities Act.”

He tried to explain that the prescription, approved by the U.S. Drug Enforcement Administration, trumps any state requirement. Called to the Delta desk, a Broward sheriff’s officer told airline employees Rosenfeld was right on that point. The officer had heard of Rosenfeld and a former Hollywood woman, another of the people the government allows to smoke marijuana. They have been the subject of several newspaper articles dealing with the issue.

Still, Rosenfeld could not get on the Delta plane. Eventually, he found a later flight on another carrier.

He told the Delta employees they would hear from him again. And he boarded the second plane without telling anyone about the marijuana.

Delta officials are investigating Rosenfeld’s claim, said spokeswoman Cindi Kurczewski, but would not issue a comment Wednesday.

It took Rosenfeld several months to find a lawyer, Christopher Sharp of Fort Lauderdale, who was willing to take a case in which the client cannot seek a large monetary settlement. They both talk about changing behavior. And Sharp, Rosenfeld said, is unlike other lawyers because he was comfortable with supporting someone’s need to take a controversial medicine.

“My wife has lupus,” Sharp said. “I can appreciate what [Rosenfeld] goes through.”

Sharp said he and his client are not ready to file a lawsuit just yet.

They announced Wednesday they are giving Delta 30 days to issue an apology, reimburse Rosenfeld the $450 it cost to buy the ticket on the other airline, and promise that such discrimination will never happen again.

“If Delta does that, our legal claim is moot,” Sharp said.

Rosenfeld does not hide that he is an activist for the medicinal use of marijuana. But calling the media to his lawyer’s office on Wednesday was about sticking up for people with disabilities, he said.

“It’s important to stand up to this invidious discrimination,” Sharp said.

If Delta would issue an apology, Sharp said, Rosenfeld would go back to flying on its planes.

His client nodded and smiled. “I have a lot of frequent flier miles,” he explained.

Terri Somers can be reached at or 954-356-4849.

By Terri Somers STAFF WRITER

Original article