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

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.

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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”).

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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.

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