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,
Florigrown, LLC, a Florida limited liability company and Voice of Freedom, Inc., d/b/a Florigrown, Appellees.
appeal from the Circuit Court for Leon County. Charles W.
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,
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.
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,
ON MOTION FOR CERTIFICATION
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
Makar, and Jay, JJ., concur.
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.
Lewis, Makar, and Bilbrey, JJ., concur.
Thomas, Osterhaus, Jay, and M.K. Thomas, JJ., dissent.
C.J., and Roberts, Rowe, Kelsey, and Winokur, JJ., recused.
J., concurring in the denial of rehearing en banc.
constitution grants the ultimate power to decide state policy
to the people, who have chosen by citizens'
initiativeto 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").
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
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
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 security, record keeping, testing,
labeling, inspection, and safety." Id.
§ 29(d)(1)c. (emphasis added).
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). 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 ...