The Florida House of Representatives v. Florigrown, LLC, Voice of Freedom, Inc., Florida Department of Health, etc. ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4994
_____________________________
THE FLORIDA HOUSE OF
REPRESENTATIVES,
Appellant,
v.
FLORIGROWN, LLC, VOICE OF
FREEDOM, INC., FLORIDA
DEPARTMENT OF HEALTH, etc., et
al.,
Appellees.
_____________________________
On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.
September 13, 2019
B.L. THOMAS, J.
The Florida House of Representatives challenges the trial
court’s order denying its motion to intervene in an action asserting
that portions of section 381.986, Florida Statutes, violate article X,
section 29 of the Florida Constitution. Because the House has a
cognizable interest in the outcome of the declaratory action, we
reverse. But we note that because this court recently denied
rehearing en banc by a 4-4 vote in Fla. Dep’t of Health v.
Florigrown, LLC, No. 1D18-4471, 2019 WL 2943329 (Fla. 1st DCA
July 9, 2019), rehearing en banc denied, No. 1D18-4471, 2019 WL
4019919 (Mem) (Fla. 1st DCA August 27, 2019), rejecting the
motion filed by the Governor and the Florida Department of
Health, the Florida House of Representatives will not be permitted
to challenge the temporary injunction entered in this case:
“Intervention is a dependent remedy in the sense that an
intervenor may not inject a new issue into the case.” Envtl.
Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857 So. 2d
207, 211 (Fla. 1st DCA 2002) (citation omitted), absent further
review by the supreme court on the order below granting the
temporary injunction.
Facts
Article X, section 29 of the Florida Constitution provides that
the use of medical marijuana by a qualifying patient or caregiver
is not subject to criminal or civil liability. This section assigns to
the Florida Department of Health the responsibility of issuing
“reasonable regulations necessary for the implementation and
enforcement of this section,” stating that “[i]t is the duty of the
Department to promulgate regulations in a timely fashion.” Art.
X, § 29(d), Fla. Const. That section requires the Department to
promulgate procedures for issuing patient identification cards,
qualifications for caregivers, and the registration of “Medical
Marijuana Treatment Centers.” Art. X, § 29(d)(1)a-d, Fla. Const.
The section defines a Medical Marijuana Treatment Center as an
“entity that acquires, cultivates, possesses, processes (including
development of related products such as food, tinctures, aerosols,
oils, or ointments), transfers, transports, sells, distributes,
dispenses, or administers” marijuana or marijuana products to
qualified patients or caregivers. Art. X, § 29(b)(5), Fla. Const. This
section also provides that “[n]othing in this section shall limit the
legislature from enacting laws consistent with this section.” Art.
X, § 29(e), Fla. Const.
In 2017, 1 the legislature amended section 381.986, Florida
Statutes, requiring that “[a] licensed medical marijuana treatment
center shall cultivate, process, transport, and dispense marijuana
for medical use.” § 381.986(8)(e), Fla. Stat. (2017). Section 381.986
also requires the Department to license a specified amount of
1 Ch. 2017-232, Laws of Fla.
2
Medical Marijuana Treatment Centers and describes the
parameters for this licensing. § 381.986(8)(a)(2), Fla. Stat. (2017).
In December 2017, a group of plaintiffs including Appellee
Florigrown, LLC, an entity that was denied licensure as a Medical
Marijuana Treatment Center, filed a complaint against the
Department’s Office of Medical Marijuana Use and the director of
that office, the State Surgeon General and Secretary of the
Department of Health, the Governor, and the State of Florida. 2
The complaint sought injunctive relief, compelling the defendants
to comply with article X, section 29 of the Florida Constitution, and
sought declaratory relief to determine whether the new provisions
of section 381.986, Florida Statutes, were constitutional.
The complaint alleged that the new legislative parameters for
the licensing of treatment centers created “multiple classes of
applicants entitled to special privileges” in the process of receiving
one of the treatment-center licenses. The complaint alleged that
the new provisions of section 318.986, Florida Statues, imposed
limitations on the amount of Medical Marijuana Treatment
Centers that the Department could register, in violation of article
X, section 29 of the Florida Constitution. The complaint also
alleged that new provisions in section 381.986, Florida Statutes,
constituted an impermissible special law.
The Appellees moved for a temporary injunction, requesting
that the defendants be enjoined from registering Medical
Marijuana Treatment Centers under section 381.986, Florida
Statutes, and requiring them to register the treatment centers
pursuant to article X, section 29 of the Florida Constitution. After
an evidentiary hearing, the trial court denied Appellees’ motion
without prejudice, finding that while Florigrown had shown a
substantial likelihood of success on the merits of its claims that the
Department was not adhering to the Florida Constitution, it could
not show irreparable harm, as it could apply for a remaining
treatment-center license. Approximately two months later, the
court granted Appellees’ motion for temporary injunction. The
injunction required the Department to cease registering Medical
2The court ultimately granted motions to dismiss the
Governor and the State.
3
Marijuana Treatment Centers under section 381.986, Florida
Statutes, to begin registering centers in accordance with the plain
language of article X, section 29 of the Florida Constitution, and to
register Florigrown as a Medical Marijuana Treatment Center.
This Court affirmed the portion of the injunction requiring the
Department to consider Florigrown’s request for licensure without
applying the portions of section 381.986 that conflict with the
constitution but quashed the portions of the injunction requiring
the Department to immediately register Florigrown. Fla. Dep’t of
Health v. Florigrown, LLC, No. 1D18-4471, 2019 WL 2943329 (Fla.
1st DCA July 9, 2019), rehearing en banc denied (August 27, 2019).
The House filed a motion to intervene as an additional
defendant, 3 arguing that article X, section 29 of the Florida
Constitution gave implementing authority to the Department, but
reserved policymaking authority to the Legislature. The House
stated that it sought to intervene “to defend the Legislature’s
prudent effort at striking the necessary, delicate balance between
implementation of” article, X, section 29 of the Florida
Constitution and “conflicting federal drug policy.”
The trial court denied the House’s motion to intervene. The
court ruled that because any policy enacted by the legislature must
be constitutional, and thus must comport with article X, section 29
of the Florida Constitution, the House could not lose any
policymaking authority as a result of the declaratory action.
Analysis
This Court reviews the denial of a motion to intervene for an
abuse of discretion. Litvak v. Scylla Properties, LLC, 946 So. 2d
1165, 1172 (Fla. 1st DCA 2006). Florida Rule of Civil Procedure
1.230, which governs interventions, “may be utilized by the
omitted party if the plaintiff has left out a necessary or proper
party.” Fla. R. Civ. P. 1.230, Author’s Comment—1967 (emphasis
added). The House does not dispute that the Department is the
3 Twenty-two Florida businesses who either were denied
licensure as a Medical Marijuana Treatment Center or claimed
that their applications were “not being processed,” and who argued
that they were similarly situated to Appellee Florigrown, were
permitted to intervene as plaintiffs.
4
only necessary party to the underlying declaratory action. Thus,
to be permitted to intervene, the House must be a proper party to
the action.
“The proper defendant in a lawsuit challenging a statute’s
constitutionality is the state official designated to enforce the
statute.” Atwater v. City of Weston, 64 So. 3d 701, 703 (Fla. 1st
DCA 2011); Haridolopolos v. Alachua Cty., 65 So. 3d 577, 578 (Fla.
1st DCA 2011) (“A suit challenging the constitutionality of a
statute must be brought against the state agency or department
charged with enforcing the statute at issue”).
If a government official or entity is not the enforcing authority
of a challenged statute, courts must consider two additional factors
in determining whether that official or entity is a proper party: (1)
“whether the action involves a broad constitutional duty of the
state implicating specific responsibilities of the” official or entity,
and (2) whether official or entity “has an actual, cognizable interest
in the challenged action.” Scott v. Francati, 214 So. 3d 742, 747
(Fla. 1st DCA 2017); Marcus v. State Senate for the State, 115 So.
3d 448, 448 (Fla. 1st DCA 2013) (holding the Florida Senate and
House of Representatives were not proper defendants in an action
for declaratory judgment where “[n]either legislative body has
been designated as the enforcing authority” of the challenged
statute and the action did not “involve a duty or responsibility of
the State implicating specific responsibilities of” either legislative
body); see also Nat’l Wildlife Fed’n, Inc. v. Glisson, 531 So. 2d 996,
997 (Fla. 1st DCA 1988) (“‘Anyone claiming an interest in pending
litigation may at any time be permitted to assert his right by
intervention . . . ’” (quoting Fla. R. Civ. P. 1.230)).
The House argues that although it is not the entity tasked
with enforcing the challenged statute, article X, section 29 of the
Florida Constitution also states that nothing therein “shall limit
the legislature from enacting laws consistent with” that section.
Thus, the House asserts it has an interest in preserving this
authority such that it should be permitted to intervene.
Article III, section 1 of Florida Constitution vests the
legislative power of the State to the legislature. “In matters of
state policy and law making, the Legislature has plenary powers,
limited only by the Constitutions of the state of Florida and of the
5
United States.” Charlotte Harbor & N. Ry. Co. v. Welles, 78 Fla.
227, 234 (Fla. 1919). “The Legislature has a great deal of
discretion in determining what measures are necessary for the
public's protection,” and this discretion extends to the regulation
of marijuana. Hamilton v. State, 366 So. 2d 8, 10 (Fla. 1978).
Article X, section 29 expressly reserves to the legislature the
authority to enact laws consistent with that section. The 2017
revisions to section 381.396, Florida Statutes, represent the
legislature’s attempt to exercise its discretion within the new
bounds created by the constitution. The declaratory action into
which the House seeks to intervene will determine whether the
legislature acted permissibly within these new constitutional
limitations. The House has an actual cognizable interest in such
an action, which will define the scope of its constitutional authority
to police certain narcotics.
This interest is particularly vital considering that the conduct
authorized by article X, section 29 of the Florida Constitution is
prohibited by federal law. The federal government has categorized
marijuana as a Schedule I drug, meaning it has a high potential
for abuse, there is no currently accepted medical use of the drug in
treatment in the United States, and there is a lack of accepted
safety for use of the drug under medical supervision. 21 U.S.C. §
812(b)(1)A-C, Schedule I(c)(10) (emphasis added). In addition,
some studies have indicated that habitual use of cannabis may
cause violent and criminal behavior as a result of changes in brain
function:
However, 20% of the boys who started using pot by
age 18 continued to use it through middle age (32-48
years). One fifth of those who were pot smokers (22%)
reported violent behavior that began after beginning to
use cannabis, whereas only 0.3% reported violence before
using weed. Continued use of cannabis over the lifetime
of the study was the strongest predictor of violent
convictions, even when the other factors that contribute
to violent behavior were considered in the statistical
analysis.
In conclusion, the results show that continued
cannabis use is associated with a 7-fold greater odds for
6
subsequent commission of violent crimes. The level of risk
is equivalent to the increased risk of lung cancer from
smoking cigarettes over a similar duration (40 years).
R. Douglas Fields, Ph.D, Marijuana Use May Increase Violent
Behavior, PSYCHOLOGY TODAY (March 20, 2016),
https://www.psychologytoday.com/us/blog/the-new
brain/201603/marijuana-use-may-increase-violent-behavior
(emphasis added). Additionally, a 2016 study, conducted by
researchers from King’s College of London and University of South
Florida, concluded that cannabis use can predict the commission
of subsequent violent offending, suggesting a possible causal effect.
See Tabea Schoeler, MSc, et al., Continuity of Cannabis Use and
Violent Offending Over the Life Course, 46 Psychological
Medicine1663 (2016). Further, the United States Surgeon General
published an advisory on August 29, 2019, warning that, because
marijuana binds receptors in the brain that are critical for
development, marijuana presents a high risk to adolescents; the
Surgeon general stated that “[n]o amount of marijuana use during
pregnancy or adolescence is known to be safe.” Surgeon General
VADM Jerome Adams, U.S. Surgeon General’s Advisory:
Marijuana Use and the Developing Brian,
https://www.hhs.gov/surgeongeneral/reports-and-
publications/addiction-and-substance-misuse/advisory-on-
marijuana-use-and-developing-brain/index.html (last visited
August 29, 2019).
The legislature has the authority and responsibility to protect
the public from harm by regulating the availability of a controlled
substance that the federal government has determined is not safe
for medical use, is susceptible to abuse, and presents a harm to the
public. The underlying declaratory action challenges the manner
in which the legislature has attempted to exercise its broad
constitutional authority to enact policies to protect the public.
Thus, the legislature has a clear and actual cognizable interest in
defending this challenge.
In its order denying the House’s motion to intervene, the trial
court acknowledged a legislative interest in the underlying action
discrete from the executive’s authority, stating that “[t]he
Legislature has absolutely no authority to either intrude on or
7
attempt to marginalize the responsibilities of the executive branch
that are specifically enumerated in [article X, section 29 of the
Florida Constitution].” By positioning the executive and
legislative branches against one another, the trial court should
have recognized that the legislature had a cognizable interest in
the action distinct from the executive.
Article X, section 29 of the Florida Constitution institutes a
dramatic sea change in the regulation of marijuana in Florida. The
new provisions of section 381.986 demonstrate the legislature’s
attempt to navigate these changes. The trial court abused its
discretion in denying the House’s motion to intervene.
We reverse and remand with instructions to permit the House
to intervene as a defendant in the proceeding. We note that upon
intervention “[a]n intervenor must accept the record and pleadings
as he finds them and cannot raise new issues, although he may
argue the issues as they apply to him as a party.” Glisson, 531 So.
2d at 998.
REVERSED and REMANDED.
MAKAR, J., concurs in result and concurs in part with opinion;
OSTERHAUS, J., concurs in result with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., concurring in result and concurring in part.
At issue is whether the Florida House of Representatives has
a sufficient legal interest to intervene as an additional party-
defendant in a challenge to the constitutionality of section
381.986(8)(e), Florida Statues, which relates to the organizational
8
structure of medical marijuana treatment centers. 1 The answer
seems clear but is muddled a bit by a few complications.
First, the House was on the sidelines and waited close to a
year to intervene, moving to do so rapidly only after the trial court
had issued a temporary injunction against the Department’s
enforcement of the statute, holding that the plaintiffs had
established a substantial likelihood of success on the merits. The
trial judge was troubled that the House sought to join the litigation
after the primary legal battle had already been lost; and he felt it
odd that the House, which frequently seeks to not be a party-
defendant in other civil cases, wanted to accept that responsibility
in this case under the existing circumstances.
Both those sentiments are understandable, but countervailing
factors ameliorate those concerns. The first of which is that the
House, if allowed to intervene, would not be able to change the
parameters of the litigation on its own. Nat’l Wildlife Fed’n Inc. v.
Glisson, 531 So. 2d 996, 998 (Fla. 1st DCA 1988) (“An intervenor
must accept the record and pleadings as he finds them and cannot
raise new issues, although he may argue the issues as they apply
to him as a party.”). Instead, the House’s intervention would be
subordinated to the ongoing litigation absent a ruling to the
contrary by the trial court. Fla. R. Civ. P. 1.230 (“Anyone claiming
an interest in pending litigation may at any time be permitted to
assert a right by intervention, but the intervention shall be in
subordination to, and in recognition of, the propriety of the main
proceeding, unless otherwise ordered by the court in its
discretion.”). Granting intervention would give the House a seat at
the litigation table, albeit without a host’s authority to alter the
1 The statute states that a “licensed medical marijuana
treatment center shall cultivate, process, transport, and dispense
marijuana for medical use,” which parallels to some degree the
definition of so-called Dispensing Organizations (DOs) that—
under pre-amendment medical marijuana laws—were required to
be vertically integrated (i.e., they must perform every function in
the production, processing, distributing, and retail sale of medical
cannabis). Floridians, however, rejected this structure in adopting
the medical marijuana amendment, using an or rather than and
in replacing DOs with newly-defined medical marijuana treatment
centers. See art. X, § 29(b)(5), Fla. Const.
9
menu or the order of courses absent judicial permission.
Intervention—even after preliminary relief had already been
granted—would not disturb the orderly final adjudication of this
important case; a lot of plaintiffs were allowed to intervene late in
the game, making it all the more important that the House be
given at least equivalent treatment in the final adjudicative
process.
Had the House waited until entry of final judgment, of course,
intervention would be disfavored. Williams v. Nussbaum, 419 So.
2d 715, 717 (Fla. 1st DCA 1982) (“As a general rule, it is too late to
apply for intervention after a final decree has been entered.
However, intervention should be permitted at such a time if the
interests of justice require it.”). Waiting and seeking to intervene
only after an injunction is entered, while a potentially dicey
strategy, should not preclude the House from intervening without
delay or disruption of the proceedings, which the trial court can
closely control and limit in scope. Glisson, 531 So. 2d at 998(intervention upheld where trial set approximately 6 months later
and subsequently rescheduled; movants “assure[d] the court that
their desire to intervene would not delay or disrupt the
proceedings.”).
The trial court was also puzzled about why the House wanted
to accept the responsibility of party-defendant status in this
constitutional challenge. Ordinarily, the legislative branch is not a
necessary party in litigation challenging the constitutionality of a
statute, which is why the House and Senate frequently seek to
extricate themselves as parties from this type of litigation based
on the general rule that the “proper defendant in a lawsuit
challenging a statute's constitutionality is the state official
designated to enforce the statute.” Atwater v. City of Weston, 64 So.
3d 701, 703 (Fla. 1st DCA 2011). Which is not to say that
legislators and the Governor “are improper parties in all
declaratory actions challenging the constitutionality of legislative
or executive acts.” Id. at 704 (emphasis added). Indeed, they are
necessary parties in some cases and permissible parties in others.
The House of Representatives is no ordinary litigant, making
its desire to intervene and accept the benefits and burdens of party
status in this litigation a significant step. Its role, even if limited
to the case’s existing legal parameters, is of great importance,
10
particularly given the subtle, if not subliminal, institutional
tensions between the executive and legislative branches at play in
this case. Not so subtle is the constitutional authority the people
granted to the Department of Health, an executive branch agency,
to effectuate the production, distribution and sale of medical
marijuana in a safe manner, a grant of power that diminished the
legislative branch’s otherwise plenary authority on this topic. This
grant of power, however, is offset by the recognition that the
Legislature may pass laws that are consistent with the medical
marijuana amendment: borne thereby was a delicate political
waltz between the executive and legislative branches as to the
relative powers of each in the field of medical marijuana.
More subtle is the question of who, between the Department
and the legislative branch, is in charge of the defense in this
litigation. Consistent with the general rule, the Department—as
the agency designated to implement the medical marijuana laws
in question—has been the sole and principal party-defendant since
the onset of the litigation in December 2017. That does not mean
that the Department’s constitutional powers, set forth in the
medical marijuana amendment, will necessarily fully align with
the Legislature’s constitutional power to enact legislation
consistent with the amendment. The Department’s litigation goals
in this case potentially may dovetail with those of the legislative
branch, making intervention by the House or Senate duplicative
or unnecessary (as the trial judge believed). But potential changes
in litigation priorities and interpretive tensions can alter the
balance and require modifications, such as occurred when the U.S.
Department of Justice announced it would not defend the
constitutionality of the Defense of Marriage Act, resulting in the
House of Representatives intervening with private counsel to do
so. See Memorandum of Points and Authorities in Support of the
Unopposed Motion of the Bipartisan Legal Advisory Group of the
U.S. House of Representatives to Intervene for a Limited Purpose,
Windsor v. U.S., No. 1:10-cv-8435 (BSJ) (JCF) (S.D.N.Y. Apr. 18,
2011), 2011 WL 3164126 (unopposed motion of bipartisan advisory
group of U.S. House of Representatives to intervene as party
defendant to defend DOMA on equal protection grounds).
Different priorities and inter-branch tensions exist in this
case. Here, counsel for the House told the trial judge that it sought
intervention to defend its legislative powers and that, although the
11
Department’s lawyers were “doing a fine job defending the
Department of Health,” a “separation in interest in part” existed
between the two. For example, House counsel said the Department
“potentially or I think actually has taken the position in the past
that without the statute or without legislative involvement, the
Department . . . still would have the authority to make substantive
rules or constitutional regulations to regulate the entry. The
House takes the position that that’s not true” because the medical
marijuana amendment did not grant the Department
“policymaking authority.” Though made aware that a conflict of
legal positions existed between the Department and the House, the
trial judge denied intervention, saying he was “sure the House is
fully capable of giving guidance to the Department of Health as to
proceedings in the case,” which was inaccurate. Instead, the
unique tension between the Department and the House as to
each’s respective powers made it all the more important that the
House be heard. 2
One needn’t conclude that “the Legislature’s basic
constitutional power to legislate appears now to be imperiled”
to see that intervention should have been granted under the
circumstances. In a sense, the Legislature’s basic constitutional
power to legislate is always altered whenever a substantive
amendment is made to the Florida Constitution. Additions to
the state constitution—such as those dealing with a minimum
wage, smoke-free workplaces, maximum class sizes, and even
the cruel and inhumane treatment of pregnant pigs—each
displaced the Legislature’s basic constitutional power to
legislate on such topics to some degree and do not violate the
single subject rule for citizens’ initiatives. In re Advisory Op. to
Att’y Gen. re Use of Marijuana for Debilitating Med. Conditions,
181 So. 3d 471, 478 (Fla. 2015) (“[T]he fact that [a] branch of
2 This tension perhaps was heightened by the October 24,
2018, announcement of then-candidate Ron DeSantis that he
would “finish implementing Florida’s medical marijuana
constitutional amendment so sufferers of chronic pain have
access to an alternative to the use of opioids.” Help Floridians
Struggling with Opioid Addiction, RON DESANTIS: SECURING
FLORIDA’S FUTURE, https://rondesantis.com/healthcare/ (last
visited Sept. 10, 2019).
12
government is required to comply with a provision of the Florida
Constitution does not necessarily constitute the usurpation of the
branch's function within the meaning of the single subject rule.”)
(alteration in original) (citing Advisory Op. to Att’y Gen. re Protect
People, Especially Youth, From Addiction, Disease, & Other Health
Hazards of Using Tobacco, 926 So. 2d 1186, 1192 (Fla. 2006)).
These types of constitutional amendments, which reflect the
political will of Floridians, become super-statutes that restrict
legislative powers in the same way as other limitations set forth in
the state constitution; they cannot be changed by statute. 3
The medical marijuana amendment is no different—it
displaced, but did not imperil, basic legislative powers. That’s
particularly true when one considers the medical marijuana
amendment explicitly acknowledges the Legislature’s role to
enact laws consistent with the amendment’s language. Art. X,
§ 29(e), Fla. Const. (“(e) Legislation. Nothing in this section shall
limit the legislature from enacting laws consistent with this
section.”). Rather than imperil, the medical marijuana
amendment embraces legislative action consistent with its
purpose; indeed, the vast bulk of medical marijuana legislation
has not been challenged as being inconsistent with the
3 Judge Osterhaus, who claims the panel’s opinion affirming
the injunction in this case has “downgraded” legislative power,
ignores this point. The injunction panel unanimously held that the
plaintiffs were likely to succeed on their claim that the legislature’s
use of and in section 381.986(8)(e) directly conflicts with the
medical marijuana amendment’s use of or in defining medical
marijuana treatment centers. And and or have very different
meanings. Indeed, the constitution was amended in 1998 to change
the prohibition against “cruel or unusual punishment” to a
prohibition against “cruel and unusual punishment,” a change
that “raise[d] the bar on the part of a defendant by requiring proof
of both prohibitions rather than one or the other.” See Art. I, § 17,
Fla. Const. (commentary to 1998 amendment). The legislature can
no more change the or in the medical marijuana amendment to
and by statute than change the and in the constitutional
prohibition on “cruel and unusual punishment” to an or. The same
could be said for any number of constitutional provisions, e.g.,
increasing maximum class sizes in the constitution by statute.
13
amendment. See §§ 381.986, .987, .988 & .989, Fla. Stat. 4
Because it explicitly acknowledges the Legislature’s power to
enact laws consistent with the constitution, it is unsurprising
that our supreme court concluded that the medical marijuana
“amendment does not substantially alter or perform the functions
of multiple branches” nor does it “have a substantial impact on
legislative functions or powers.” In re Advisory Op. to Att’y Gen. re
Use of Marijuana for Debilitating Med. Conditions, 181 So. 3d at
477 (emphasis added). Had the amendment left no room for
legislation, or created a “fourth branch” of government, it would
not have made the ballot. In re Advisory Op. to the Att’y Gen.-Save
Our Everglades, 636 So. 2d 1336, 1340 (Fla. 1994) (“Viewed in its
entirety, the initiative creates a virtual fourth branch of
government with authority to exercise the powers of the other
three on the subject of remedying Everglades pollution.”). That
said, the House needn’t show its basic constitutional powers are
imperiled to belatedly intervene in this litigation.
In conclusion, the Florida House of Representatives should
have been allowed to intervene in this proceeding, a result in which
I concur. Though I do not join Judge Thomas’s opinion, I concur in
those parts holding that the House had a separate and distinct
interest in this case apart from the Department of Health that
supported intervention, that it had an actual, cognizable interest
in the proceedings, and that it must accept the record and
pleadings as they exist and not raise new issues after intervention.
OSTERHAUS, J., concurring in result.
4 Section 381.986 alone is ponderous, comprising
approximately 40 single-spaced pages and over 13,000 words
setting forth definitions, standards, procedures and regulatory
programs governing the medical use of marijuana, including
subsections on qualifying medical conditions, qualifications for
physicians and medical directors, physician certification, a medical
marijuana use registry, caregiver registration, identification
cards, medical marijuana treatment centers (almost half the entire
section), inspections/administrative actions, preemption,
penalties, unlicensed activity, exceptions, and fines/fees. Only a
few of its provisions are at issue in this litigation.
14
I concur with the holding that the House may intervene as a
defendant. See Fla. R. Civ. P. 1.230 (providing that “[a]nyone
claiming an interest in pending litigation may at any time be
permitted to assert his right by intervention”). This case raises
important issues involving the role of the Legislature within the
constitutional structure of our state government. The rulings in
this case—including the temporary injunction decision of this
court—appear to have downgraded the Legislature’s work and its
constitutional authority to legislate below that of the executive
agency. The Florida Supreme Court did not recognize the
amendment, article X, section 29 of the Florida Constitution, to
have this effect. See In re Advisory Opinion to the Att’y. Gen. re Use
of Marijuana for Debilitating Med. Conditions, 181 So. 3d 471, 477
(Fla. 2015 (determining that “[i]f the proposed amendment passes,
the Department of Health would perform regulatory oversight,
which would not . . . have a substantial impact on legislative
functions or powers”). Because the Legislature’s basic
constitutional power to legislate appears now to be imperiled, the
House quite obviously satisfies the legal threshold for
intervention.
_____________________________
Adam Scott Tanenbaum, General Counsel, Joseph Michael Maida,
Assistant General Counsel, Tallahassee, for Appellant.
Ari H. Gerstin of Akerman LLP, Miami; Katherine E. Giddings
and J. Martin Hayes of Akerman LLP, Tallahassee; Jonathan S.
Robbins of Akerman LLP, Fort Lauderdale; Jason B. Gonzales of
Shutts & Bowen, LLP, Tallahassee; Luke Lirot of Luke Lirot, P.A.,
Clearwater; for Appellees.
15