Airline Not Fined for Barring Medicinal Pot User

March 29, 2004

Eliot Kleinberg, Palm Beach Post

The U.S. Department of Transportation has ruled Delta Air Lines shouldn't have barred former Boca Raton stockbroker Irvin Rosenfeld and his medicinal marijuana from a flight, but declined to penalize the airline. Rosenfeld said Monday he will appeal.

Rosenfeld, who now lives and works in Broward County, suffers from a rare disease and needs the marijuana, grown and supplied by the federal government, to control pain that makes it impossible to walk.

In March 2001, Rosenfeld tried to fly from Fort Lauderdale-Hollywood International Airport to Washington to support defendants in a U.S. Supreme Court case over expanded medical use of the drug. Rosenfeld said he alerted Delta in advance, as he has many times when flying Delta and other airlines. But when he arrived, agents wouldn't let him board.

Rosenfeld sued Delta under the federal Air Carriers Access Act, then decided to drop the suit because of an appeals court's ruling in a similar case and instead filed a complaint with the DOT. The agency ruled Friday that Rosenfeld had the right to board with his marijuana, but that because he is one of only seven surviving participants in the program, since canceled, the burden was on him to have proper documents.

Delta agents 'made reasonable efforts to confirm Mr. Rosenfeld's status but were unable to do so, in view of the incomplete and ambiguous documentation offered by Mr. Rosenfeld,' Samuel Podberesky, assistant general counsel for aviation enforcement and proceedings, concluded.

'All they would have had to do was call Bascom-Palmer pharmacy' in Miami, which supplies the prescription, Rosenfeld said Monday. He said he's confident the ruling will itself be the documentation he needs in the future but said he still plans to appeal. He has argued that he has asked the federal government for years, without success, to provide him documents proving he may carry the marijuana.

'I'm saddened that they'd decided to sort of let Delta off the hook,' Richard McKewen, an attorney for Georgetown University's Institute for Public Representation, which represented Rosenfeld, said Monday from Washington. 'It would be outrageous if it were any other disability with any other medication requirement.'

Delta spokesman Anthony Black said the airline had no comment other than that it authorized Rosenfeld to fly on Delta with his marijuana in the future.

The DOT's ruling also noted that Delta, while not admitting wrongdoing, has offered to reimburse Rosenfeld the extra cost of switching planes, about $250.

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