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The Florida House of Representatives v. Florigrown, LLC

Florida Court of Appeals, First District

September 13, 2019

The Florida House of Representatives, Appellant,
v.
Florigrown, LLC, Voice of Freedom, Inc., Florida Department of Health, etc., et al., 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.

          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.

          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 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 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 ...


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