final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Charles W.
Scott Tanenbaum, General Counsel, Joseph Michael Maida,
Assistant General Counsel, Tallahassee, for Appellant.
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.
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.
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.
2017,  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.
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.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.
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.
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.
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).
House filed a motion to intervene as an additional defendant,
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."
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 ...