Florida Department of Health, Office of Medical Marijuana Use, Courtney Coppola, in her official capacity as Director of the Office of Medical Marijuana Use v. Florigrown, LLC, a Florida limited liability company and Voice of Freedom, Inc., d/b/a Florigrown ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4471
_____________________________
FLORIDA DEPARTMENT OF
HEALTH, OFFICE OF MEDICAL
MARIJUANA USE, COURTNEY
COPPOLA, in her official capacity
as Director of the Office of
Medical Marijuana Use, SCOTT
RIVKEES, M.D., in his official
capacity as State Surgeon
General and Secretary of the
Florida Department of Health,
and THE STATE OF FLORIDA,
Appellants,
v.
FLORIGROWN, LLC, a Florida
limited liability company and
VOICE OF FREEDOM, INC., d/b/a
Florigrown,
Appellees.
_____________________________
On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.
August 27, 2019
ON MOTION FOR CERTIFICATION
PER CURIAM.
The panel grants the motion for certified question. We
determine that the following question proposed by appellant is one
of great public importance:
WHETHER THE PLAINTIFFS HAVE DEMONSTRATED A
SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS OF
THEIR CLAIMS THAT THE STATUTORY REQUIREMENTS OF
VERTICAL INTEGRATION AND CAPS ON THE NUMBER OF
MEDICAL MARIJUANA TREATMENT CENTER LICENSES AS SET
FORTH IN SECTION 381.986(8), FLORIDA STATUTES, ARE IN
DIRECT CONFLICT WITH ARTICLE X, SECTION 29, OF THE
FLORIDA CONSTITUTION?
WOLF, MAKAR, and JAY, JJ., concur.
ON MOTION FOR REHEARING EN BANC
On the motion of a party, a judge in regular active service on
the Court requested that a vote be taken on the motion in
accordance with Florida Rule of Appellate Procedure 9.331(d)(1).
All judges in regular active service that have not been recused
voted on the motion. Less than a majority of those judges voted in
favor of rehearing en banc. Accordingly, the motion for rehearing
en banc is denied.
WOLF, LEWIS, MAKAR, and BILBREY, JJ., concur.
MAKAR, J, concurs with written opinion.
B.L. THOMAS, OSTERHAUS, JAY, and M.K. THOMAS, JJ., dissent.
B.L. THOMAS, J., dissents with written opinion.
RAY, C.J., and ROBERTS, ROWE, KELSEY, and WINOKUR, JJ.,
recused.
_____________________________
MAKAR, J., concurring in the denial of rehearing en banc.
2
Florida’s constitution grants the ultimate power to decide
state policy to the people, who have chosen by citizens’ initiative 1
to constitutionalize “Medical marijuana production, possession
and use.” Art. X, § 29, Fla. Const.; see id. art. XI, § 5(e) (providing
that proposals to change the state constitution must be approved
by sixty percent vote of the electors). In doing so, the people have
in large measure elbowed out the legislative branch as the arbiter
of medical marijuana policy by giving the Department of Health
the compulsory and detailed authority to “issue reasonable
regulations necessary for the implementation and enforcement” of
the medical marijuana amendment to “ensure the availability and
safe use of medical marijuana by qualifying patients.” Id. art. X,
§ 29(d) (“Duties of the Department”).
A subset of the Department’s constitutional duties is to
oversee all entities involved in the production and distribution of
marijuana for medical use in Florida. Dubbed Medical Marijuana
Treatment Centers (MMTCs), these include any:
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, products containing marijuana, related
supplies, or educational materials to qualifying patients
or their caregivers and is registered by the Department.
Id. § 29(b)(5) (emphasis added). The constitution requires that the
Department establish “[p]rocedures for the registration of MMTCs
that include procedures for the issuance, renewal, suspension and
revocation of registration, and standards to ensure proper
1 See P.K. Jameson & Marsha Hosack, Citizen Initiatives in
Florida: An Analysis of Florida's Constitutional Initiative Process,
Issues, and Alternatives, 23 FLA. ST. U. L. REV. 417, 418 (1995)
(“Initiatives generally allow the public to bypass the legislature
and reserve direct lawmaking power in the voters of the state.
Citizens propose constitutional amendments by initiative, and the
general electorate adopts or rejects the proposed amendment at
the polls.”).
3
security, record keeping, testing, labeling, inspection, and safety.”
Id. § 29(d)(1)c. (emphasis added).
As the highlighted language makes obvious, the people have
lodged wide-ranging power and control in the Department’s hands
to set substantive standards for regulating MMTCs that protect
the public by ensuring the security, safety and testing/inspection
of medical marijuana production, possession and use in Florida.
This constitutional authority is presumptively self-executing. Fla.
Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 486 (Fla. 2008)
(noting that “modern doctrine favors the presumption
that constitutional provisions are intended to be self-operating.”)
(citation omitted). 2 It requires no legislative action because it
effects an immediate change in the law governing access to medical
marijuana, establishes a detailed regulatory regime with
definitions of key terms, and sets forth in reasonable detail the
means for accomplishing its purpose without the need of
legislation. Id. (“The amendment's language makes evident that it
was intended to effect an immediate change in the law governing
access to medical records without the need for legislative action.”).
The Department’s constitutional authority over medical
marijuana production, possession and use does not entirely
displace the legislature’s role. That’s because the amendment does
not “limit the legislature from enacting laws consistent with this
section.” Art. X, § 29(e) (emphasis added). 3 Our constitution
envisioned this type of inter-branch power-sharing arrangement
by saying that the “powers of the state government shall be divided
into legislative, executive and judicial branches. No person
2 The reason for the presumption is that in its absence “the
legislature would have the power to nullify the will of the people
expressed in their constitution, the most sacrosanct of all
expressions of the people.” Buster, 984 So. 2d at 486 (quoting Gray
v. Bryant, 125 So. 2d 846, 851 (Fla. 1960)).
3 Of course, “simply because the right conferred by
the amendment could be supplemented by legislation does not
prevent the provision from being self-executing.” Buster, 984 So.
2d at 486.
4
belonging to one branch shall exercise any powers appertaining to
either of the other branches unless expressly provided herein.” Art.
II, § 3, Fla. Const. (emphasis added). The people–not our judicial
panel—expressly granted to the executive branch (i.e., the
Department of Health) a defined portion of what would otherwise
have been the Legislature’s plenary power to establish statewide
medical marijuana policy, leaving room for limited legislation that
is consistent with the amendment itself. The people, by limiting
the legislative branch’s policy-making role power over medical
marijuana, have not done “exceptional violence” to their own right
to petition the legislature for gap-filling, harmonious legislation;
instead, the people have bypassed the legislature, directed the
Department to implement their political will, art. I, § 1, Fla. Const.
(“All political power is inherent in the people.”), and corralled
legislative power by limiting it to only “consistent” enactments
(which is unsurprising given the potential for wayward legislation
to frustrate the people’s will), Gray, 125 So. 2d at 852 (“We have
no reason to believe, and we do not intend to imply, that the
legislature will not always follow the dictates of [the constitutional
provision at issue],” but noting the possibility that a legislature
might “fail to act in accordance with the [provision]” and thereby
“frustrate the people's will.”).
In light of the amendment’s language and structure, the
paramount question in this case—the only one that both parties
urge that we answer—is whether legislation that limits
registration to only MMTCs that are fully vertically-integrated is
inconsistent with the amendment’s language. The original panel
unanimously agreed that section 381.986(8)(e), Florida Statutes,
which requires full vertical integration, directly conflicts with the
language in article X, section 29(b)(5). The former says that an
MMTC “shall cultivate, process, transport, and dispense
marijuana for medical use,” while the later contrarily says that an
MMTC is an entity that “acquires, cultivates, possesses, processes
. . ., transfers, transports, sells, distributes, dispenses, or
administers” medical marijuana. The power of the legislature does
not include rewriting clear language in the constitution,
transforming a disjunctive “or” into a conjunctive “and.” The
reason is that the use of “the word ‘or’ is usually, if not always,
construed judicially as a disjunctive,” the rare exception being
where it is “necessary” to conform to the “clear intention” of its
5
drafters. Pompano Horse Club, Inc. v. State, 111 So. 801, 805 (Fla.
1927); see also Telophase Soc’y of Fla., Inc. v. State Bd. of Funeral
Dirs. & Embalmers, 334 So. 2d 563, 565, 566–67 (Fla. 1976)
(upholding disjunctive use of “or” where statute defined “funeral
directing” as the “profession of directing or supervising funerals for
profit, or the profession of preparing dead human bodies for burial
or cremation by means other than embalming, or the disposition
or shipping of dead human bodies, or the provision or maintenance
of a place for the preparation of dead human bodies.”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 116 (2012) (“The conjunctions and and or are two of
the elemental words in the English language. Under the
conjunctive/disjunctive canon, and combines items while or creates
alternatives. Competent users of the language rarely hesitate over
their meaning.”).
No evidence exists that the people via the elemental language
of the medical marijuana amendment clearly intended a market
limited to only a few fully vertically-integrated medical marijuana
companies. Indeed, one looks in vain for any modern American
commodities industry in which all sellers are fully-vertically
integrated; partial vertical integration is common, but not the type
of seed-to-store structure that section 381.986(8)(e) requires of all
MMTCs. For this reason, the legislature cannot force every MMTC
seeking registration to grow marijuana and then cultivate,
process, package, transport, distribute, sell, and dispense medical
marijuana. Prior to passage of the medical marijuana amendment
it could advance such a market policy, but doing so now is
inconsistent with the amendment’s clear language to the contrary.
Because section 381.986(8)(e) so clearly conflicts with the
constitution, en banc review is unwarranted and would serve only
to further delay the inevitable, which is to allow for our supreme
court to weigh in and definitively pass upon the matter, which the
panel has promptly accommodated. The parties have signaled the
importance of having the merits of the legal issue addressed, the
6
state moving for certification of one question on only that point of
law, 4 which the panel has granted.
Until supreme court review occurs, the existing legislatively-
established oligopolistic vertically-integrated market structure
will remain operative due to all but certain stays of the trial court’s
and this Court’s decisions. Even if the supreme court denies
review, and the panel opinion becomes operative, no floodgates will
open that threaten ruination on society—akin to Reefer Madness—
as might be feared. 5 Properly regulated, medical marijuana serves
an important public health goal in accord with the intent of a
super-majority of Florida’s voters. Remember, the people gave the
4 The only certified question sought by the Department of
Health, which was approved by the panel, is:
Whether the plaintiffs have demonstrated a
substantial likelihood of success on the merits of their
claims that the statutory requirements of vertical
integration and caps on the number of medical marijuana
treatment center licenses as set forth in section
381.986(8), Florida Statutes, are in direct conflict with
Article X, section 29, of the Florida Constitution?
5 This case is about medical marijuana, not the dangers of
unrestricted recreational use highlighted in the 1936 film. See
Reefer Madness, WIKIPEDIA,
https://en.wikipedia.org/wiki/Reefer_Madness (last visited August
22, 2019). That said, marijuana law and policy is a deeply serious
subject upon which profound questions remain. See generally
Robert A. Mikos, Marijuana Law, Policy, and Authority 6 (2017)
(“Given all the reasons to care about marijuana law and policy,
policymakers face a host of questions about how they should
regulate the drug: Is marijuana beneficial? What are its harms?
Which of those benefits and harms should inform policy decisions?
Should marijuana be allowed or banned, and if allowed, for whom?
How can jurisdictions prevent diversion of the drug to non-
approved uses? How do different policies affect the use of
marijuana and any harms associated with such use? What are the
costs of competing approaches to regulating marijuana?”).
7
Department broad constitutionally-grounded powers to establish
“standards to ensure proper security, record keeping, testing,
labeling, inspection, and safety” in this new industry, a provision
unaffected by the panel opinion and self-operative without any
legislation. Art. X, § 29(d)(1)c. Had the legislature passed no law,
the Department’s constitutional mandate to bring about the
orderly production, possession and use of medical marijuana in
Florida remained the same. Nothing prevents the Legislature, of
course, from enacting laws that are consistent with the people’s
directive.
Importantly, the panel opinion on the merits did nothing other
than to say that limiting the medical marijuana marketplace to
only a few vertically-integrated entities conflicts with the language
of the constitution; no language in the amendment (or ballot
summary for that matter) 6 compels MMTCs to be vertically-
integrated and limited in number. A wide range of regulatory
approaches remains available, none compelled by the panel’s
decision, which in no way obliges the Department to register
street-level drug dealers or dorm-room pot cultivators. Instead, the
only change will be that a broader and more competitive
marketplace will develop, one that the Department—as
supplemented by non-conflicting legislation—will actively
regulate for the public’s security and safety via its control over
MMTCs. See Fla. Dep’t of Health v. Florigrown, LLC, 44 Fla. L.
Weekly D1744 (Fla. 1st DCA July 9, 2019) (“That the portion of the
statute establishing a vertically-integrated industry structure is
impermissible doesn't reduce or interfere with the Department of
Health's ongoing regulatory authority to protect the public
generally.”) (Makar, J., concurring).
B.L. THOMAS, J., dissenting from the denial of hearing en banc.
6 In its legal filings, the Department made no mention of the
amendment’s ballot summary, probably because (a) its language
does not advance the Department’s position and (b) the language
of the constitution is what matters in assessing whether a conflict
exists with section 381.986(8)(e).
8
The Governor, the Florida Department of Health, and four
judges of this court think the panel opinion in this case is a matter
of great public importance meriting en banc consideration. But by
a 4-4 vote, 1 this court has decided that the monumental issue of
whether the Florida Legislature and the Governor have the
authority to regulate Medical Marijuana Treatment Centers
(“MMTC”) is not a case of great public importance meriting
rehearing en banc before the entire court. 2 Thus, this court has
now decided that the rational and careful policies enacted by the
legislature and approved by the governor to regulate medical
marijuana are temporarily invalid, despite the specific authority
under the constitutional provision authorizing the legislative and
executive branches to regulate medical marijuana under article X,
section 29 of the Florida Constitution.
I respectfully but vigorously dissent from this court’s decision
declining to rehear this case en banc.
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). As the panel’s dissenting
opinion stated:
The majority states that the injunction “allows the
Department a reasonable period of time to exercise its
duties under the constitutional amendment,” [] but that
is not how I read the injunction. Indeed, because the
injunction states that the Department is “immediately”
1 Two judges did not participate in the court’s decision to deny
rehearing en banc, Judges Winsor and Wetherell, having
previously been confirmed by the United States Senate as United
States District Judges for the Northern District of Florida. Judge
Wetherell served on the original panel decision and dissented from
the majority’s decision to affirm the preliminary injunction issued
by the circuit judge below.
2 Five judges of this court recused themselves from
consideration of this motion for rehearing en banc.
9
enjoined from registering or licensing MMTCs under the
legislative scheme in section 381.986, Florida Statutes, it
appears to me that the injunction will create a regulatory
vacuum that will need to be immediately filled by an
entirely new regulatory scheme in order to avoid an
unregulated marketplace for medical marijuana.
Fla. Dep’t of Health v. Florigrown, LLC, No. 1D18-4471, 2019 WL
2943329, at *6 n.4 (Wetherell, J., concurring in part and dissenting
in part) (emphasis added) (citations omitted).
This is manifestly a case of great public importance as the
erroneous panel decision will have a profound impact on public
safety and is in violation of the separation of powers under article
II, section 3 of the Florida Constitution, because the preliminary
injunction usurps the constitutional authority of the of the
legislature, which carefully considered and approved those
policies, and the governor, who signed this legislation and has
acted to implement those policies through the Department of
Health. The concurring opinion further demonstrates this
violation of the separation of powers by recommending an
economic model for regulating medical marijuana, which is
obviously within the sole policy-making authority of the legislative
branch. (“As such, the public interest is best served, not by
allowing an unconstitutional market structure to remain in place,
but to gravitate carefully and expeditiously away from the unlawful
vertically-integrated oligopoly model to the non-integrated market
structure the amendment envisions.” (Fla. Dep’t of Health v.
Florigrown, LLC, No. 1D18-4471, 2019 WL 2943329, at *5 (Makar,
J., concurring)) (emphasis added)).
As our supreme court has emphatically stated: “In the final
analysis, ‘[t]he preservation of the inherent powers of the three
branches of government, free of encroachment or infringement by
one upon the other, is essential to the effective operation of our
constitutional system of government.” Fla. Senate v. Fla. Pub.
Empl. Council 79, AFSCME, 784 So. 2d 404, 408 (Fla. 2001)
(quoting In re Advisory Opinion to the Governor, 276 So. 2d 25, 30
(Fla. 1973)).
The amendment at issue requires the Department to adopt
“[p]rocedures for the issuance, renewal, suspension and revocation
10
of registration of Medical Marijuana Treatment Centers and
standards to ensure proper security, record keeping, testing,
labeling, inspection, and safety.” Art. X, § 29(d)(1)c., Fla. Const. A
Medical Marijuana Treatment Center is defined in the
Amendment as “an entity that acquires, cultivates, possesses,
processes . . . transfers, sells, distributes, dispenses, or administers
marijuana . . . and is registered by the Department.” Art. X, §
29(b)(5), Fla. Const. The Amendment unambiguously states that
“[n]othing in [the Amendment] shall limit the legislature from
enacting laws consistent with this section.” Art. X, § 29(e), Fla.
Const. (emphasis added). The statute at issue is “consistent with
this section” because it properly implements the constitutional
amendment by correctly limiting the registration of Medical
Marijuana Treatment Centers.
Thus, because there is no conflict between the statute and the
amendment, the Appellees cannot prevail on the merits, the
injunction is not in the public interest, and there is no “irreparable
harm” in reversing the injunction. Quite the contrary, the
preliminary injunction will impose irreparable harm on the public
by injecting chaos and creating an unregulated environment for
the use and abuse of marijuana.
The majority decision approving this injunction in part is
contrary to the public interest, as the dissenting panel opinion
noted:
However, I respectfully dissent from the remainder
of the opinion because, in my view, Appellees failed to
establish that the portion of the injunction affirmed by
the majority is in the public interest. . . . The portion of
the injunction affirmed by the majority will effectively
mandate an immediate change in the entire structure of
the medical marijuana industry in Florida. Although such
a change may ultimately be warranted, the trial court did
not articulate—and Appellees did not show—how the
public interest would be served by mandating this change
through a preliminary injunction.
Florigrown, LLC, 2019 WL 2943329, at *5-6 (Wetherell, J.,
concurring in part and dissenting in part) (emphasis added)
(footnote omitted).
11
The preliminary injunction will result in the increased
potential for the unregulated use of marijuana, a dangerous drug
which has been shown in numerous studies to present a significant
harm to both young people and others who may be now permitted
unfettered access to this drug. See Nora D. Volkow, M.D., Letter
from the Director, NATIONAL INSTITUTE ON DRUG ABUSE, (July
2019), https://www.drugabuse.gov/publications/research
reports/marijuana/letter-director:
Because marijuana impairs short-term memory and
judgment and distorts perception, it can impair
performance in school or at work and make it dangerous
to drive. It also affects brain systems that are still
maturing through young adulthood, so regular use by
teens may have negative and long-lasting effects on their
cognitive development, putting them at a competitive
disadvantage and possibly interfering with their well-
being in other ways. Also, contrary to popular belief,
marijuana can be addictive, and its use during
adolescence may make other forms of problem use or
addiction more likely. Whether smoking or otherwise
consuming marijuana has therapeutic benefits that
outweigh its health risks is still an open question that
science has not resolved.
(Emphasis added).
Without any proper factual findings or any showing of
irreparable harm, the circuit court’s preliminary injunction
invalidates the comprehensive regulation of a controlled
substance, Section 381.986(8)(a)1, Fla. Stat. (2017). The injunction
endangers public safety and the physical and mental health of
adults and children who will now likely have greater access to
unregulated marijuana use and abuse. The preliminary injunction
also violates settled law governing a trial court’s authority to grant
preliminary injunctions, which are an “extraordinary remedy
which should be granted sparingly.” City of Jacksonville v. Naegele
Outdoor Advertising Co., 634 So. 2d 750, 752 (Fla. 1st DCA 1994)
(quoting Thompson v. Planning Comm’n, 464 So. 2d 1231 (Fla. 1st
DCA 1985) (emphasis added)).
12
As argued by Appellants citing black-letter law, a “trial court
must determine that (i) the movant is substantially likely to
succeed on the merits, (ii) irreparable harm absent injunction is
likely, (iii) an adequate remedy at law is unavailable, and (iv) the
balance of the public interest favors the injunction.” Id.; see also
St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So. 3d 728, 731 (Fla. 1st
DCA 2009) (party seeking a temporary injunction bears the burden
of providing substantial, competent evidence on each element).
I agree with Appellants that the trial court’s order is fatally
flawed “on almost every possible ground.” But the majority opinion
upholds a significant part of this fatally flawed injunction. This
Court’s decision denying rehearing en banc compounds that error.
The trial court’s injunction and this Court’s partial approval
of the injunction have erroneously decided that any entity that
engages in any of the defined activities described in the
amendment may constitute a self-executing Medical Marijuana
Treatment Center. But a fair reading of the amendment can only
conclude that a “treatment center” cannot mean that anyone who
merely “cultivates” marijuana is thereby entitled to demand
registration under the amendment.
The contrary holding of the panel opinion approving the
injunction also conflicts with the rationale of this court’s prior
decision in Department of Health v. Redner, in which we held that
a person had no privilege under the amendment to grow his own
marijuana:
Mr. Redner argues, and the trial court held, that
because Mr. Redner was a qualified patient, he had the
right to possess and use marijuana, which included the
whole growing plant and seeds. He argues the right to
possess and use the whole growing plant and seeds
includes the right to cultivate and process his own
marijuana. This interpretation of section 29 is not
supported by the plain language of the constitution and
renders portions of the constitution meaningless. In
addition, this interpretation ignores the detailed
framework set forth by the drafters to establish the role
that MMTCs play in producing and distributing medical
13
marijuana and to provide for the regulation of those
MMTCs.
Mr. Redner's argument is not supported by the plain
language of section 29, which provides qualified users
(like Mr. Redner) with immunity from criminal or civil
liability under Florida law for the “medical use of
marijuana” that is “in compliance” with the amendment
(emphasis added). Qualified users are permitted to
acquire, possess, use, deliver, transfer, and administer
marijuana in amounts that do not conflict with the
Department's rules. Mr. Redner argues that the term
“use” contained in the medical use definition permits him
to cultivate and process marijuana. The term “use” is not
defined by the amendment. However, it is clear, when one
examines the entire amendment, that “use” does not
mean “grow” or “process,” as Mr. Redner argues.
In examining section 29 as a whole, we must
recognize the distinctions made by the drafters between
the activities permitted to be performed by MMTCs and
the activities permitted to be performed by qualified
patients. We must also recognize the role the drafters
gave to MMTCs to play in the production and distribution
of medical marijuana. The framers explicitly authorized
MMTCs to cultivate, process, and distribute medical
marijuana. Art. X, § 29(b)(5), Fla. Const. Unlike the
express language concerning MMTCs, there is no explicit
language authorizing qualified patients to grow,
cultivate, or process marijuana. Had the drafters
intended for qualified patients to be able to cultivate or
process medical marijuana, that language would have
been included in the definition of medical use; it was not.
When we read the constitutional provisions, as a
whole, we find that the language of section 29 is clear,
unambiguous, and addresses the issue on appeal. A
qualified patient's ability to use and possess marijuana
does not include authorization to grow, cultivate, and/or
process marijuana. Article X, section 29 of the Florida
Constitution only authorizes MMTCs to grow, cultivate,
and process marijuana for qualified patients.
14
273 So. 3d 170, 172-73 (Fla. 1st DCA 2019) (emphasis added).
As noted by our Court in Redner, the logic of the panel opinion
and the preliminary injunction conflict with the ballot summary
provided to the voters who considered this amendment:
We also look to the ballot summary to determine the
purpose of the amendment and the will of the voters
because a ballot summary provides the purpose of the
amendment and has to present the scope of an
amendment in order to be valid. See Advisory Op. to Att'y
Gen. re Term Limits Pledge, 718 So. 2d 798, 804 (Fla.
1998) (if a ballot summary does not accurately describe
the scope of the amendment, then it fails to accurately
describe the purpose of the amendment). The Florida
Supreme Court found the ballot summary for Article X,
section 29 of the Florida Constitution fairly informed the
voters of the purpose of the proposed amendment. In re
Advisory Op. to Att'y Gen. re Use of Marijuana for
Debilitating Med. Conditions, 181 So. 3d 471, 478-79 (Fla.
2015). The ballot summary read as follows:
Allows medical use of marijuana for
individuals with debilitating medical conditions
as determined by a licensed Florida physician.
Allows caregivers to assist patients' medical use
of marijuana. The Department of Health shall
register and regulate centers that produce and
distribute marijuana for medical purposes and
shall issue identification cards to patients and
caregivers. Applies only to Florida law. Does not
immunize violations of federal law or any non-
medical use, possession or production of
marijuana.
Id. at 476. There is no language contained in the ballot
summary that would have allowed the voters to surmise
that the passing of this amendment would permit
qualified patients to cultivate and process their own
medical marijuana. Therefore, Mr. Redner's position is
not consistent with the purpose of the amendment or the
will of the voters.
15
273 So. 3d at 174 (emphasis added).
Given the logic and rationale of Redner, the preliminary
injunction here may produce the inevitable conclusion that the
amendment was approved under a flag of “false colors” when the
ballot summary informed the voters that the legislature and
governor could adopt and implement reasonable restrictions on the
use of marijuana. See Armstrong v. Harris, 773 So. 2d 7, 16 (Fla.
2000) (“A ballot title and summary cannot ‘fly under false colors’
or hide the ball’ as the amendment’s true effect”).
For all the above reasons, this Court should have agreed to
rehear this case en banc and reverse the fatally flawed preliminary
injunction. Thus, I dissent from the denial of rehearing en banc.
_____________________________
Jason Gonzalez, Rachel Nordby, and Amber Stoner Nunnally of
Shutts & Bowen LLP, Tallahassee; Joe Jacquot and John MacIver
of the Executive Office of Governor Ron DeSantis, Tallahassee; and
Louise Wilhite-St Laurent, General Counsel, Florida Department
of Health, Tallahassee, for Appellants.
Katherine E. Giddings, BCS of Akerman LLP, Tallahassee,
Jonathan S. Robbins of Akerman LLP, Fort Lauderdale, Ari H.
Gerstin of Akerman LLP, Miami, and Luke Lirot, Clearwater, for
Appellees.
John M. Lockwood, Thomas J. Morton, and Devon Nunneley of The
Lockwood Law Firm, Tallahassee, for amici curiae DFMMJ
Investments, LLC d/b/a Liberty Health Sciences, Acreage Florida,
Inc., 3 Boys Farm, LLC d/b/a 3 Boys Farm, and MME Florida, LLC
d/b/a MedMen.
James A. McKee of Foley & Lardner LLP, Tallahassee, for amici
curiae Perkins Nursery, Inc., Deleon’s Bromeliads, Inc., San
Felasco Nurseries, Inc. d/b/a Harvest, and Better-Gro Companies,
LLC d/b/a Columbia Care Florida.
William D. Hall, III and Daniel R. Russell, of Dean Mead &
Dunbar, Tallahassee, for amicus curiae Dewar Nurseries, Inc.
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