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Florida Department of Health v. Florigrown, LLC

Florida Court of Appeals, First District

July 9, 2019

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,
Florigrown, LLC, a Florida limited liability company and Voice of Freedom, Inc., d/b/a Florigrown, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge.

          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.

          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.
. . . .
(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 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 ...

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