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,
CELESTE PHILIP, M.D., M.P.H.,
in her 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.
July 9, 2019
PER CURIAM.
The Department of Health (Department) challenges the trial
court’s entry of a temporary injunction which:
(1) immediately enjoin[ed] the Department of Health
from registering or licensing any [Medical Marijuana
Treatment Centers] pursuant to the unconstitutional
legislative scheme set forth in Section 381.986, Florida
Statutes, (2) requir[ed] the Department by 5:00 PM
Friday, October 19, 2018 to commence registering
MMTCs in accordance with the plain language of the
Medical Marijuana Amendment, and (3) requir[ed] the
Department to register F1origrown as an MMTC by 5:00
PM Friday, October 19, 2018, unless the Department
c[ould] clearly demonstrate [] that such registration
would result in unsafe use of medical marijuana by
qualifying patients.
We determine that certain aspects of the injunction are
overbroad and unsupported by the evidence and factual findings.
We, however, uphold the injunction to the extent it requires the
Department to consider Florigrown’s request for licensure without
applying the portions of the statutory scheme which this opinion
identifies as being unconstitutional.
PROCEDURAL HISTORY
In 2016, voters amended the Florida Constitution to protect the
production, possession, and use of medical marijuana. Art. X, § 29,
Fla. Const. The amendment went into effect on January 3, 2017,
and states, in relevant part:
(b)(5) “Medical Marijuana Treatment Center”
(MMTC) means 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, products containing
marijuana, related supplies, or educational materials to
qualifying patients or their caregivers and is registered
by the Department.
2
....
(d) The Department shall issue reasonable regulations
necessary for the implementation and enforcement of this
section. The purpose of the regulations is to ensure the
availability and safe use of medical marijuana by
qualifying patients. It is the duty of the Department to
promulgate regulations in a timely fashion.
(1) Implementing Regulations. In order to allow the
Department sufficient time after passage of this section,
the following regulations shall be promulgated no later
than six (6) months after the effective date of this section:
....
(3) If the Department does not issue regulations, or
if the Department does not begin issuing identification
cards and registering MMTCs within the time limits set
in this section, any Florida citizen shall have standing to
seek judicial relief to compel compliance with the
Department’s constitutional duties.
Art. X, § 29(b)(5) and (d)(1), (3), Fla. Const.
Two weeks after the amendment went into effect, appellee
sent the Department a letter seeking to register as an MMTC. The
Department denied the request because it had not yet promulgated
any regulations pursuant to the amendment.
In June 2017, the Legislature passed a bill later signed by the
governor amending section 381.986, Florida Statutes, which set
forth a statutory framework for the registration of MMTCs by:
• Directing the Department to convert the existing
licenses of low-THC and medical cannabis dispensing
organizations into MMTC licenses so long as the
organizations still maintained all of the criteria set
forth in section 381.986(8)(a)1., Florida Statutes.
• Providing for ten additional MMTC licenses for
applicants that were (1) previously denied a
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dispensing organization license under the prior
version of section 381.986 so long as the organization
had a pending a judicial or administrative challenge
pending as of January 1, 2017, or had a final ranking
within one point of the highest final ranking in its
region; (2) in compliance with the requirements of the
amended statute; and (3) able to provide the
Department with documentation that they could begin
cultivating marijuana within 30 days of registration
as an MMTC. See § 381.986(8)(a)2., Fla. Stat.
• Stating that a licensed medical marijuana treatment
center shall cultivate, process, transport, and dispense
marijuana for medical use. See § 381.986(8)(e), Fla.
Stat.
• Requiring the Department to adopt rules to establish
a procedure for issuing MMTC licenses in accordance
with the amended statute. See § 381.986(8)(b), Fla.
Stat.
In December 2017, appellee filed suit requesting a declaratory
judgment and a permanent injunction declaring these provisions
unconstitutional and mandating the Department register appellee
as an MMTC.
During this suit, appellee filed a motion for a temporary
injunction. The trial court initially denied appellee’s motion
without prejudice despite finding that appellee had a substantial
likelihood of success on the merits, because it found that appellee
could not prove irreparable harm or that a temporary injunction
would be in the public’s best interests.
Three months later, appellee filed a renewed motion for a
temporary injunction. The trial court granted this motion, finding
that the Department’s unwillingness to draft rules for registering
MMTCs in accordance with the plain language of the amendment
in the three months since it denied appellee’s original motion for a
temporary injunction required a different result and incorporating
the findings of its earlier order.
4
STANDARD OF REVIEW
We review a trial court’s order on a request for temporary
injunction in a hybrid format: “The court’s factual findings are
reviewed for an abuse of discretion, whereas its legal conclusions
are reviewed de novo.” State, Dep’t of Health v. Bayfront HMA Med.
Ctr., LLC, 236 So. 3d 466, 471 (Fla. 1st DCA 2018) (citing
Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258 (Fla.
2017)).
ANALYSIS
To obtain a temporary injunction, a party must provide
specific facts establishing four elements: “(1) a substantial
likelihood of success on the merits, (2) a lack of an adequate
remedy at law, (3) the likelihood of irreparable harm absent the
entry of an injunction, and (4) that injunctive relief will serve the
public interest.” Id. at 472 (citing Sch. Bd. of Hernando Cty. v.
Rhea, 213 So. 3d 1032, 1040 (Fla. 1st DCA 2017)).
SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
A statute enacted by the legislature may not restrict a right
granted under the constitution and, to the extent that a statute
conflicts with express or implied mandates of the constitution, the
statute must fall. Notami Hosp. of Florida, Inc. v. Bowen, 927 So.
2d 139, 142 (Fla. 1st DCA 2006), aff’d sub nom. Florida Hosp.
Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008). Similarly,
the State is not permitted to alter the definition or meaning of a
term laid out in the constitution. See Dep’t of Envtl. Prot. v.
Millender, 666 So. 2d 882 (Fla. 1996) (holding that the industry-
accepted definition of a term trumps a statutory or rule-based
definition when the effect of the statutory or rule-based definition
would severely restrict or diminish the industry the constitutional
amendment is designed to regulate).
The Department contends that appellee did not prove it had a
substantial likelihood of success on the merits because section
381.986 does not conflict with the amendment, and the
amendment does not prohibit the legislature from placing a cap on
the number of MMTCs the Department may register. We disagree.
5
The amendment 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, products containing marijuana, related
supplies, or educational materials to qualifying patients
or their caregivers and is registered by the Department.
Art. X, § 29(b)(5) Fla. Const. (emphasis added).
Meanwhile section 381.986(8)(e), Florida Statutes, states, in
pertinent part, “A licensed medical marijuana treatment center
shall cultivate, process, transport, and dispense marijuana for
medical use.” (emphasis added).
Section 381.986(8)(e) thus creates a vertically integrated
business model which amends the constitutional definition of
MMTC by requiring an entity to undertake several of the activities
described in the amendment before the Department can license it.
Under the statute, an entity must conform to a more restricted
definition than is provided in the amendment; therefore, all
MMTCs under the statute would qualify as MMTCs under the
constitutional amendment, but the reverse is not true.
We thus find the statutory language directly conflicts with the
constitutional amendment, and appellee has demonstrated a
substantial likelihood of success in procuring a judgment declaring
section 381.986(8)(e) unconstitutional. See Notami Hosp., 927 So.
2d at 142.
As a direct result, we are constrained to find that appellee has
also established a substantial likelihood of success in its challenge
to the statutory cap of MMTCs under section 381.986(8)(a)1.-2., 4.,
Florida Statutes.
The State may not regulate an industry governed by a
constitutional amendment in such a manner that would severely
restrict or diminish the industry. Millender, 666 So. 2d at 887.
Here, the amendment requires the Department to issue
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“reasonable regulations necessary for the implementation and
enforcement of this section. The purpose of the regulations is to
ensure the availability and safe use of medical marijuana by
qualifying patients.” Art. X, § 29(d), Fla. Const. The statute
provides for the registration of seventeen MMTCs in the entire
state, with a requirement that within six months of an additional
100,000 patients registering with the Department another four
MMTCs shall be licensed. § 381.986(8)(a)1.-2., 4., Fla. Stat.
Our ruling that the vertically integrated system conflicts with
the constitutional amendment thus renders the statutory cap on
the number of facilities in section 381.986(8)(a) unreasonable. It is
therefore unnecessary for us to address the Department’s
authority to establish any caps.
IRREPARABLE HARM AND INADEQUATE REMEDY AT LAW
A trial court is required to provide specific reasons for
entering a temporary injunction which must be supported by
specific factual findings. Fla. R. Civ. P. 1.610(c); Milin v. Nw.
Florida Land, L.C., 870 So. 2d 135, 136 (Fla. 1st DCA 2003). We
find that the trial court made sufficient findings supported by the
record to establish that appellee will suffer irreparable harm
without injunctive relief and that appellee has no adequate remedy
at law.
The irreparable harm and inadequate remedy at law prongs
are established by the fact that appellee is being
unconstitutionally prevented from participating in the process for
obtaining a license to operate as an MMTC. The amendment itself
recognizes there is no adequate remedy at law where, as here, a
state agency or actor refuses to abide by its express duties
mandated under the constitution. The amendment specifically
provides a cause of action to seek to “compel compliance with the
Department’s constitutional duties.” Art. X, §29(d)(3), Fla. Const.
Even if there were a remedy at law, the law recognizes that a
continuing constitutional violation, in and of itself, constitutes
irreparable harm. The law also recognizes that implementation of
an unconstitutional statute for which no adequate remedy at law
exists leads to irreparable harm, which is the case here.
Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1264 (Fla.
7
2017). And where time is of the essence, as the Medical Marijuana
amendment clearly provides, “[i]t truly can be said in this type of
litigation that relief delayed is relief denied.” Capraro v. Lanier
Bus. Products, Inc., 466 So. 2d 212, 213 (Fla. 1985) (concluding
that irreparable injury is presumed in non-compete cases because
“[i]mmediate injunctive relief is the essence of such suits and
oftentimes the only effectual relief.”). Moreover, because all of the
defendants are either state governmental entities or state
governmental actors, absent a waiver of sovereign immunity in the
amendment, which is not present, no monetary damages could be
recovered at law for the constitutional violations. See, e.g., Tucker
v. Resha, 634 So. 2d 756, 759 (Fla. 1st DCA 1994). As the trial court
found here, there is simply no remedy available to appellee in such
circumstances. Nothing argued by the Department suggests
otherwise. 1
1 The Department cites the decisions in State, Department of
Health v. Bayfront HMA Medical Center, LLC, 236 So. 3d 466 (Fla.
1st DCA 2018); State Agency for Health Care Admin. v. Continental
Car Services, Inc., 650 So. 2d 173, 175 (Fla. 2d DCA 1995); Stand
Up for Animals, Inc. v. Monroe Cty., 69 So. 3d 1011, 1013 (Fla. 3d
DCA 2011), for the proposition than an ability to seek monetary
damages makes it nearly impossible for a party seeking a
temporary injunction to establish that it has suffered irreparable
harm. However, the circumstances underlying those decisions are
readily distinguishable. None involve the specific violation of a
constitutional amendment, and none involve a total inability to
participate in the licensing process. See Bayfront, 236 So. 3d at
475-76 (Alleged irreparable harm was contingent on the approval
of an application of a competitor to operate a trauma center);
Continental Car, 650 So. 2d at 175 (Plaintiff alleged that a contract
for transportation with another entity was executed without
authority); Stand Up for Animals, 69 So. 3d at 1013 (court
explained that the claims in this case comprised “no more than a
claim for damages stemming from a breach of contract”).
8
PUBLIC INTEREST
To sustain a temporary injunction a party must also establish
that injunctive relief will serve the public interest. Bayfront HMA
Med. Ctr., LLC, 236 So. 3d at 472.
The trial court’s temporary injunction requires the
Department to undertake three specific actions previously
discussed. We determine that the trial court’s factual findings
support the conclusion that it is in the public interest to require
the Department to registering or license MMTCs without applying
the unconstitutional statutory provisions which appellee has
challenged. However, the public interest does not support
requiring the Department to immediately begin registering
MMTCs or registering appellee at this stage of the proceedings.
The amendment specifically directs the Department to establish
“standards [for MMTCs] to ensure proper security, record keeping,
testing, labeling, inspection, and safety.” Art. X, § 29(d)(1)c., Fla.
Const.
While it is in the public interest for the Department to
promulgates rules that do not thwart the purpose of the
amendment, it is also clear that the public interest would not be
served by requiring the Department to register MMTCs pursuant
to a preliminary injunction without applying other regulations to
uphold the safety of the public.
We thus AFFIRM that portion of the injunction that precludes
appellants from enforcing the unconstitutional provisions but
allows the Department a reasonable period of time to exercise its
duties under the constitutional amendment.
WOLF, J., concurs; MAKAR, J., concurs with opinion; WETHERELL,
J., concurs in part and dissents in part with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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MAKAR, J., concurring with opinion.
I fully concur but add one point. A good case can be made for
why the public interest is served without an injunction, but a
better case is made that the public interest is best served with
injunctive relief as modified by the per curiam opinion. A high
likelihood of success on the merits exists on the primary
constitutional claim and the people of Florida voted for this
amendment to be implemented rapidly (with deadlines now far
exceeded). 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. While the
supply-side structure of the medical marijuana market may be
disjointed, at least in the short term, the intent of the amendment
cannot be achieved anytime soon unless its language is put into
operation. 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. In short, the public
interest is best served by allowing implementation of the market
structure the constitutional amendment requires subject to the
Department’s broad powers to protect the public.
WETHERELL, J., concurring in part and dissenting in part.
I agree with the majority opinion insofar as it quashes the
portions of the preliminary injunction requiring the Department
to immediately register Appellees—and potentially others—as
medical marijuana treatment centers (MMTCs). 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 purpose of a preliminary injunction is to preserve the
status quo pending the final disposition of the case. See City of
Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750,
754 (Fla. 1st DCA 1994) (quoting Ladner v. Plaza Del Prado
10
Condo. Ass'n, 423 So. 2d 927, 929 (Fla. 3d DCA 1982)). The
issuance of a preliminary injunction is “an extraordinary remedy
which should be granted sparingly.” Id. at 752 (quoting Thompson
v. Planning Comm’n of Jacksonville, 464 So. 2d 1231, 1236 (Fla.
1st DCA 1985)). This is especially true where, as here, the act
being enjoined is an act of a co-equal branch of government.
The Medical Marijuana Amendment 2 provides immunity from
criminal sanctions and civil liability for the medical use of
marijuana, but only when it is used “in compliance with [the
Amendment].” Art. X, § 29(a), Fla. Const.; see also Fla. Dep’t of
Health v. Redner, 2019 WL 1466883, at *2 (Fla. 1st DCA Apr. 3,
2019). The Amendment authorizes the Department to adopt
regulations to “ensure the availability and safe use of medical
marijuana by qualifying patients,” art. X, § 29(d), Fla. Const., and
it also authorizes the Legislature to “enact[] laws consistent with
[the Amendment],” id. at § 29(e). The Amendment specifically
contemplates the adoption of regulations pertaining to the
registration and operation of MMTCs. See id. at § 29(d)(1)c.
The medical marijuana industry is unique in that its product
is illegal to possess, sell, and use, both under federal law and for
non-medical purposes under Florida law. Because of this, the state
has a compelling interest in ensuring that the industry is highly-
regulated and operating within the narrow bounds established by
the Medical Marijuana Amendment. However, that compelling
interest cannot justify the enactment of statutes or regulations
that contravene the plain language of the Amendment.
The primary issue in this case is whether the statute
requiring MMTCs to be “vertically integrated” and perform all
activities in the medical marijuana supply chain from cultivation
to distribution is consistent with the definition of MMTC in the
Medical Marijuana Amendment. 3 Appellees contend that the
2 Amend. 2 (2016) (codified in art. X, § 29, Fla. Const.).
3 Appellees also challenge the statute capping the number of
MMTCs, see § 381.986(8)(a), Fla. Stat., but the merit of that claim
was not addressed by the trial court. Moreover, at this stage of the
litigation, the challenge to the caps is largely derivative of
11
statute is inconsistent with the Amendment because, unlike the
statute, the constitutional definition expressly contemplates that
an entity can be engaged in as little as one aspect of the medical
marijuana supply chain and still be an MMTC. Compare §
381.986(8)(e), Fla. Stat. (“A licensed medical marijuana treatment
center shall cultivate, process, transport, and dispense marijuana
for medical use.”) (emphasis added) with Art. X, § 29(a)(5), Fla.
Const. (“[MMTC] means an entity that acquires, cultivates,
possesses, processes ..., transfers, transports, sells, distributes,
dispenses, or administers marijuana ....”) (emphasis added). The
Department responds that because the constitutional definition
“in no way speaks to how the supply chain of medical marijuana
must be structured,” the Legislature had the constitutional
authority to determine as a policy matter which supply-chain
structure best ensures not only the availability of medical
marijuana but also its safety and security.
Although there may be sound policy reasons for requiring
MMTCs to be vertically integrated, I agree with Appellees (and the
majority) that the statute likely contravenes the constitutional
definition of MMTC because an entity that meets the
constitutional definition by performing one or more—but not all—
of the activities in the medical marijuana supply chain cannot be
registered and operate as an MMTC under the statute.
Accordingly, I agree with the majority that Appellees have shown
a substantial likelihood of success on the merits of their claim that
the statute contravenes the constitutional definition of MMTC
and, thus, is unconstitutional.
A substantial likelihood of success on the merits is not,
however, enough to obtain a preliminary injunction. The movant
must also establish that it will likely suffer irreparable harm
absent an injunction, that the movant does not have an adequate
remedy at law, and that the injunction would serve the public
interest. See City of Jacksonville, 634 So. 2d at 752 (quoting
Thompson, 464 So. 2d at 1236). Here, unlike the majority, I am
Appellees’ challenge to the statute requiring vertical integration
because if the vertical integration requirement is invalid, then the
caps are clearly indefensible.
12
not persuaded that any portion of the preliminary injunction
entered by the trial court 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. 4 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. Indeed, the trial court initially (and correctly in my
view) denied Appellees’ motion for a preliminary injunction,
finding that the injunction would not be in the public interest
because an injunction would “substantially alter the status quo by
halting the Department’s existing rulemaking process and
procedures for the issuance of MMTC licenses as well as the
rulemaking currently underway to initiate the application
process.” However, several months later, without hearing any
additional evidence, the court reversed itself and entered the
preliminary injunction. The court did not explain how an
injunction was now in the public interest, but rather simply stated
that “[t]he public interest was clearly stated with the passage of
the Constitution’s Medical Marijuana Amendment by over 70% of
Florida voters.”
The trial court’s focus on the popularity of the Medical
Marijuana Amendment misses the mark because the Amendment
contemplated a highly-regulated medical marijuana industry, not
unlimited availability and unrestricted access to medical
marijuana. To that end, the statutory scheme put in place by the
4 The majority states that the injunction “allows the
Department a reasonable period of time to exercise its duties under
the constitutional amendment,” see slip op. at 9, but that is not how
I read the injunction. Indeed, because the injunction states that
the Department is “immediately” 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.
13
Legislature—and implemented by the Department—appears to be
serving the public interest because, despite the limited number of
vertically-integrated MMTCs currently in operation, it is
undisputed that medical marijuana is being produced and sold to
qualifying patients. Additionally, Appellees failed to show how the
preliminary injunction requiring the wholesale restructuring of
the medical malpractice industry in Florida would be in the public
interest, and on that issue, I agree with the Department that the
confusion and uncertainty that the change would inject into the
fledgling industry is not in the public interest. Indeed, based on
the present record, it seems to me that the public interest would
be best served by leaving the carefully-crafted statutory scheme
enacted by the Legislature in place until the final disposition of
this case and (if the statute is declared invalid) until the
Department has an opportunity to comply with the declaration and
adopt any necessary regulations to prevent the unchecked
expansion of the medical marijuana industry pursuant to its
constitutional authority “to ensure the availability and safe use of
medical marijuana.” See art. X, § 29(d), Fla. Stat.
Accordingly, for the reasons stated above, I would quash the
preliminary injunction in its entirety and let the litigation play out
below. This would, among other things, allow the existing MMTCs
to join the fray because it is their golden geese that may be killed—
or at least be devalued—if the oligopolistic statutory scheme
established by the Legislature to implement the Medical
Marijuana Amendment is ultimately invalidated.
_____________________________
Jason Gonzalez, Rachel Nordby, and Amber Stoner Nunnally of
Shutts & Bowen LLP, 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.
14