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, 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,

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.

August 27, 2019

ON MOTION FOR CERTIFICATION

PER CURIAM.

The 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 CONSTITUTION?

WOLF, MAKAR, and JAY, JJ., concur.

ON 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.

WOLF, LEWIS, MAKAR, and BILBREY, JJ., concur.

MAKAR, J, concurs with written opinion.

B.L. THOMAS, OSTERHAUS, JAY, and M.K. THOMAS, JJ., dissent.

B.L. THOMAS, J., dissents with written opinion.

RAY, C.J., and ROBERTS, ROWE, KELSEY, and WINOKUR, JJ.,

recused.

_____________________________

MAKAR, J., concurring in the denial of rehearing en banc.

2

Florida’s constitution grants the ultimate power to decide

state policy to the people, who have chosen by citizens’ initiative 1

to 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”).

A 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 any:

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.

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

1 See P.K. Jameson & Marsha Hosack, Citizen Initiatives in

Florida: An Analysis of Florida's Constitutional Initiative Process,

Issues, and Alternatives, 23 FLA. ST. U. L. REV. 417, 418 (1995)

(“Initiatives generally allow the public to bypass the legislature

and reserve direct lawmaking power in the voters of the state.

Citizens propose constitutional amendments by initiative, and the

general electorate adopts or rejects the proposed amendment at

the polls.”).

3

security, record keeping, testing, labeling, inspection, and safety.”

Id. § 29(d)(1)c. (emphasis added).

As the 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). 2 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 need of

legislation. Id. (“The amendment's language makes evident that it

was intended to effect an immediate change in the law governing

access to medical records without the need for legislative action.”).

The Department’s constitutional authority over medical

marijuana production, possession and use does not entirely

displace the legislature’s role. That’s because the amendment does

not “limit the legislature from enacting laws consistent with this

section.” Art. X, § 29(e) (emphasis added). 3 Our constitution

envisioned this type of inter-branch power-sharing arrangement

by saying that the “powers of the state government shall be divided

into legislative, executive and judicial branches. No person

2 The reason for the presumption is that in its absence “the

legislature would have the power to nullify the will of the people

expressed in their constitution, the most sacrosanct of all

expressions of the people.” Buster, 984 So. 2d at 486 (quoting Gray

v. Bryant, 125 So. 2d 846, 851 (Fla. 1960)).

3 Of course, “simply because the right conferred by

the amendment could be supplemented by legislation does not

prevent the provision from being self-executing.” Buster, 984 So.

2d at 486.

4

belonging to one branch shall exercise any powers appertaining to

either of the other branches unless expressly provided herein.” Art.

II, § 3, Fla. Const. (emphasis added). The people–not our judicial

panel—expressly granted to the executive branch (i.e., the

Department of Health) a defined portion of what would otherwise

have been the Legislature’s plenary power to establish statewide

medical marijuana policy, leaving room for limited legislation that

is consistent with the amendment itself. The people, by limiting

the legislative branch’s policy-making role power over medical

marijuana, have not done “exceptional violence” to their own right

to petition the legislature for gap-filling, harmonious legislation;

instead, the people have bypassed the legislature, directed the

Department to implement their political will, art. I, § 1, Fla. Const.

(“All political power is inherent in the people.”), and corralled

legislative power by limiting it to only “consistent” enactments

(which is unsurprising given the potential for wayward legislation

to frustrate the people’s will), Gray, 125 So. 2d at 852 (“We have

no reason to believe, and we do not intend to imply, that the

legislature will not always follow the dictates of [the constitutional

provision at issue],” but noting the possibility that a legislature

might “fail to act in accordance with the [provision]” and thereby

“frustrate the people's will.”).

In light of the amendment’s language and structure, the

paramount question in this case—the only one that both parties

urge that we answer—is whether legislation that limits

registration to only MMTCs that are fully vertically-integrated is

inconsistent with the amendment’s language. The original panel

unanimously agreed that section 381.986(8)(e), Florida Statutes,

which requires full vertical integration, directly conflicts with the

language in article X, section 29(b)(5). The former says that an

MMTC “shall cultivate, process, transport, and dispense

marijuana for medical use,” while the later contrarily says that an

MMTC is an entity that “acquires, cultivates, possesses, processes

. . ., transfers, transports, sells, distributes, dispenses, or

administers” medical marijuana. The power of the legislature does

not include rewriting clear language in the constitution,

transforming a disjunctive “or” into a conjunctive “and.” The

reason is that the use of “the word ‘or’ is usually, if not always,

construed judicially as a disjunctive,” the rare exception being

where it is “necessary” to conform to the “clear intention” of its

5

drafters. Pompano Horse Club, Inc. v. State, 111 So. 801, 805 (Fla.

1927); see also Telophase Soc’y of Fla., Inc. v. State Bd. of Funeral

Dirs. & Embalmers, 334 So. 2d 563, 565, 566–67 (Fla. 1976)

(upholding disjunctive use of “or” where statute defined “funeral

directing” as the “profession of directing or supervising funerals for

profit, or the profession of preparing dead human bodies for burial

or cremation by means other than embalming, or the disposition

or shipping of dead human bodies, or the provision or maintenance

of a place for the preparation of dead human bodies.”); Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 116 (2012) (“The conjunctions and and or are two of

the elemental words in the English language. Under the

conjunctive/disjunctive canon, and combines items while or creates

alternatives. Competent users of the language rarely hesitate over

their meaning.”).

No evidence exists that the people via the elemental language

of the medical marijuana amendment clearly intended a market

limited to only a few fully vertically-integrated medical marijuana

companies. Indeed, one looks in vain for any modern American

commodities industry in which all sellers are fully-vertically

integrated; partial vertical integration is common, but not the type

of seed-to-store structure that section 381.986(8)(e) requires of all

MMTCs. For this reason, the legislature cannot force every MMTC

seeking registration to grow marijuana and then cultivate,

process, package, transport, distribute, sell, and dispense medical

marijuana. Prior to passage of the medical marijuana amendment

it could advance such a market policy, but doing so now is

inconsistent with the amendment’s clear language to the contrary.

Because section 381.986(8)(e) so clearly conflicts with the

constitution, en banc review is unwarranted and would serve only

to further delay the inevitable, which is to allow for our supreme

court to weigh in and definitively pass upon the matter, which the

panel has promptly accommodated. The parties have signaled the

importance of having the merits of the legal issue addressed, the

6

state moving for certification of one question on only that point of

law, 4 which the panel has granted.

Until supreme court review occurs, the existing legislatively-

established oligopolistic vertically-integrated market structure

will remain operative due to all but certain stays of the trial court’s

and this Court’s decisions. Even if the supreme court denies

review, and the panel opinion becomes operative, no floodgates will

open that threaten ruination on society—akin to Reefer Madness—

as might be feared. 5 Properly regulated, medical marijuana serves

an important public health goal in accord with the intent of a

super-majority of Florida’s voters. Remember, the people gave the

4 The only certified question sought by the Department of

Health, which was approved by the panel, is:

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 Constitution?

5 This case is about medical marijuana, not the dangers of

unrestricted recreational use highlighted in the 1936 film. See

Reefer Madness, WIKIPEDIA,

https://en.wikipedia.org/wiki/Reefer_Madness (last visited August

22, 2019). That said, marijuana law and policy is a deeply serious

subject upon which profound questions remain. See generally

Robert A. Mikos, Marijuana Law, Policy, and Authority 6 (2017)

(“Given all the reasons to care about marijuana law and policy,

policymakers face a host of questions about how they should

regulate the drug: Is marijuana beneficial? What are its harms?

Which of those benefits and harms should inform policy decisions?

Should marijuana be allowed or banned, and if allowed, for whom?

How can jurisdictions prevent diversion of the drug to non-

approved uses? How do different policies affect the use of

marijuana and any harms associated with such use? What are the

costs of competing approaches to regulating marijuana?”).

7

Department broad constitutionally-grounded powers to establish

“standards to ensure proper security, record keeping, testing,

labeling, inspection, and safety” in this new industry, a provision

unaffected by the panel opinion and self-operative without any

legislation. Art. X, § 29(d)(1)c. Had the legislature passed no law,

the Department’s constitutional mandate to bring about the

orderly production, possession and use of medical marijuana in

Florida remained the same. Nothing prevents the Legislature, of

course, from enacting laws that are consistent with the people’s

directive.

Importantly, the panel opinion on the merits did nothing other

than to say that limiting the medical marijuana marketplace to

only a few vertically-integrated entities conflicts with the language

of the constitution; no language in the amendment (or ballot

summary for that matter) 6 compels MMTCs to be vertically-

integrated and limited in number. A wide range of regulatory

approaches remains available, none compelled by the panel’s

decision, which in no way obliges the Department to register

street-level drug dealers or dorm-room pot cultivators. Instead, the

only change will be that a broader and more competitive

marketplace will develop, one that the Department—as

supplemented by non-conflicting legislation—will actively

regulate for the public’s security and safety via its control over

MMTCs. See Fla. Dep’t of Health v. Florigrown, LLC, 44 Fla. L.

Weekly D1744 (Fla. 1st DCA July 9, 2019) (“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.”) (Makar, J., concurring).

B.L. THOMAS, J., dissenting from the denial of hearing en banc.

6 In its legal filings, the Department made no mention of the

amendment’s ballot summary, probably because (a) its language

does not advance the Department’s position and (b) the language

of the constitution is what matters in assessing whether a conflict

exists with section 381.986(8)(e).

8

The Governor, the Florida Department of Health, and four

judges of this court think the panel opinion in this case is a matter

of great public importance meriting en banc consideration. But by

a 4-4 vote, 1 this court has decided that the monumental issue of

whether the Florida Legislature and the Governor have the

authority to regulate Medical Marijuana Treatment Centers

(“MMTC”) is not a case of great public importance meriting

rehearing en banc before the entire court. 2 Thus, this court has

now decided that the rational and careful policies enacted by the

legislature and approved by the governor to regulate medical

marijuana are temporarily invalid, despite the specific authority

under the constitutional provision authorizing the legislative and

executive branches to regulate medical marijuana under article X,

section 29 of the Florida Constitution.

I respectfully but vigorously dissent from this court’s decision

declining to rehear this case en banc.

The federal government has categorized marijuana as a

Schedule I drug, meaning it has a high potential for abuse, there

is no currently accepted medical use of the drug in treatment in the

United States, and there is a lack of accepted safety for use of the

drug under medical supervision. 21 U.S.C. § 812(b)(1)A-C,

Schedule I(c)(10) (emphasis added). As the panel’s dissenting

opinion stated:

The majority states that the injunction “allows the

Department a reasonable period of time to exercise its

duties under the constitutional amendment,” [] but that

is not how I read the injunction. Indeed, because the

injunction states that the Department is “immediately”

1 Two judges did not participate in the court’s decision to deny

rehearing en banc, Judges Winsor and Wetherell, having

previously been confirmed by the United States Senate as United

States District Judges for the Northern District of Florida. Judge

Wetherell served on the original panel decision and dissented from

the majority’s decision to affirm the preliminary injunction issued

by the circuit judge below.

2 Five judges of this court recused themselves from

consideration of this motion for rehearing en banc.

9

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.

Fla. Dep’t of Health v. Florigrown, LLC, No. 1D18-4471, 2019 WL

2943329, at *6 n.4 (Wetherell, J., concurring in part and dissenting

in part) (emphasis added) (citations omitted).

This is manifestly a case of great public importance as the

erroneous panel decision will have a profound impact on public

safety and is in violation of the separation of powers under article

II, section 3 of the Florida Constitution, because the preliminary

injunction usurps the constitutional authority of the of the

legislature, which carefully considered and approved those

policies, and the governor, who signed this legislation and has

acted to implement those policies through the Department of

Health. The concurring opinion further demonstrates this

violation of the separation of powers by recommending an

economic model for regulating medical marijuana, which is

obviously within the sole policy-making authority of the legislative

branch. (“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.” (Fla. Dep’t of Health v.

Florigrown, LLC, No. 1D18-4471, 2019 WL 2943329, at *5 (Makar,

J., concurring)) (emphasis added)).

As our supreme court has emphatically stated: “In the final

analysis, ‘[t]he preservation of the inherent powers of the three

branches of government, free of encroachment or infringement by

one upon the other, is essential to the effective operation of our

constitutional system of government.” Fla. Senate v. Fla. Pub.

Empl. Council 79, AFSCME, 784 So. 2d 404, 408 (Fla. 2001)

(quoting In re Advisory Opinion to the Governor, 276 So. 2d 25, 30

(Fla. 1973)).

The amendment at issue requires the Department to adopt

“[p]rocedures for the issuance, renewal, suspension and revocation

10

of registration of Medical Marijuana Treatment Centers and

standards to ensure proper security, record keeping, testing,

labeling, inspection, and safety.” Art. X, § 29(d)(1)c., Fla. Const. A

Medical Marijuana Treatment Center is defined in the

Amendment as “an entity that acquires, cultivates, possesses,

processes . . . transfers, sells, distributes, dispenses, or administers

marijuana . . . and is registered by the Department.” Art. X, §

29(b)(5), Fla. Const. The Amendment unambiguously states that

“[n]othing in [the Amendment] shall limit the legislature from

enacting laws consistent with this section.” Art. X, § 29(e), Fla.

Const. (emphasis added). The statute at issue is “consistent with

this section” because it properly implements the constitutional

amendment by correctly limiting the registration of Medical

Marijuana Treatment Centers.

Thus, because there is no conflict between the statute and the

amendment, the Appellees cannot prevail on the merits, the

injunction is not in the public interest, and there is no “irreparable

harm” in reversing the injunction. Quite the contrary, the

preliminary injunction will impose irreparable harm on the public

by injecting chaos and creating an unregulated environment for

the use and abuse of marijuana.

The majority decision approving this injunction in part is

contrary to the public interest, as the dissenting panel opinion

noted:

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 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. 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.

Florigrown, LLC, 2019 WL 2943329, at *5-6 (Wetherell, J.,

concurring in part and dissenting in part) (emphasis added)

(footnote omitted).

11

The preliminary injunction will result in the increased

potential for the unregulated use of marijuana, a dangerous drug

which has been shown in numerous studies to present a significant

harm to both young people and others who may be now permitted

unfettered access to this drug. See Nora D. Volkow, M.D., Letter

from the Director, NATIONAL INSTITUTE ON DRUG ABUSE, (July

2019), https://www.drugabuse.gov/publications/research

reports/marijuana/letter-director:

Because marijuana impairs short-term memory and

judgment and distorts perception, it can impair

performance in school or at work and make it dangerous

to drive. It also affects brain systems that are still

maturing through young adulthood, so regular use by

teens may have negative and long-lasting effects on their

cognitive development, putting them at a competitive

disadvantage and possibly interfering with their well-

being in other ways. Also, contrary to popular belief,

marijuana can be addictive, and its use during

adolescence may make other forms of problem use or

addiction more likely. Whether smoking or otherwise

consuming marijuana has therapeutic benefits that

outweigh its health risks is still an open question that

science has not resolved.

(Emphasis added).

Without any proper factual findings or any showing of

irreparable harm, the circuit court’s preliminary injunction

invalidates the comprehensive regulation of a controlled

substance, Section 381.986(8)(a)1, Fla. Stat. (2017). The injunction

endangers public safety and the physical and mental health of

adults and children who will now likely have greater access to

unregulated marijuana use and abuse. The preliminary injunction

also violates settled law governing a trial court’s authority to grant

preliminary injunctions, which are an “extraordinary remedy

which should be granted sparingly.” City of Jacksonville v. Naegele

Outdoor Advertising Co., 634 So. 2d 750, 752 (Fla. 1st DCA 1994)

(quoting Thompson v. Planning Comm’n, 464 So. 2d 1231 (Fla. 1st

DCA 1985) (emphasis added)).

12

As argued by Appellants citing black-letter law, a “trial court

must determine that (i) the movant is substantially likely to

succeed on the merits, (ii) irreparable harm absent injunction is

likely, (iii) an adequate remedy at law is unavailable, and (iv) the

balance of the public interest favors the injunction.” Id.; see also

St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So. 3d 728, 731 (Fla. 1st

DCA 2009) (party seeking a temporary injunction bears the burden

of providing substantial, competent evidence on each element).

I agree with Appellants that the trial court’s order is fatally

flawed “on almost every possible ground.” But the majority opinion

upholds a significant part of this fatally flawed injunction. This

Court’s decision denying rehearing en banc compounds that error.

The trial court’s injunction and this Court’s partial approval

of the injunction have erroneously decided that any entity that

engages in any of the defined activities described in the

amendment may constitute a self-executing Medical Marijuana

Treatment Center. But a fair reading of the amendment can only

conclude that a “treatment center” cannot mean that anyone who

merely “cultivates” marijuana is thereby entitled to demand

registration under the amendment.

The contrary holding of the panel opinion approving the

injunction also conflicts with the rationale of this court’s prior

decision in Department of Health v. Redner, in which we held that

a person had no privilege under the amendment to grow his own

marijuana:

Mr. Redner argues, and the trial court held, that

because Mr. Redner was a qualified patient, he had the

right to possess and use marijuana, which included the

whole growing plant and seeds. He argues the right to

possess and use the whole growing plant and seeds

includes the right to cultivate and process his own

marijuana. This interpretation of section 29 is not

supported by the plain language of the constitution and

renders portions of the constitution meaningless. In

addition, this interpretation ignores the detailed

framework set forth by the drafters to establish the role

that MMTCs play in producing and distributing medical

13

marijuana and to provide for the regulation of those

MMTCs.

Mr. Redner's argument is not supported by the plain

language of section 29, which provides qualified users

(like Mr. Redner) with immunity from criminal or civil

liability under Florida law for the “medical use of

marijuana” that is “in compliance” with the amendment

(emphasis added). Qualified users are permitted to

acquire, possess, use, deliver, transfer, and administer

marijuana in amounts that do not conflict with the

Department's rules. Mr. Redner argues that the term

“use” contained in the medical use definition permits him

to cultivate and process marijuana. The term “use” is not

defined by the amendment. However, it is clear, when one

examines the entire amendment, that “use” does not

mean “grow” or “process,” as Mr. Redner argues.

In examining section 29 as a whole, we must

recognize the distinctions made by the drafters between

the activities permitted to be performed by MMTCs and

the activities permitted to be performed by qualified

patients. We must also recognize the role the drafters

gave to MMTCs to play in the production and distribution

of medical marijuana. The framers explicitly authorized

MMTCs to cultivate, process, and distribute medical

marijuana. Art. X, § 29(b)(5), Fla. Const. Unlike the

express language concerning MMTCs, there is no explicit

language authorizing qualified patients to grow,

cultivate, or process marijuana. Had the drafters

intended for qualified patients to be able to cultivate or

process medical marijuana, that language would have

been included in the definition of medical use; it was not.

When we read the constitutional provisions, as a

whole, we find that the language of section 29 is clear,

unambiguous, and addresses the issue on appeal. A

qualified patient's ability to use and possess marijuana

does not include authorization to grow, cultivate, and/or

process marijuana. Article X, section 29 of the Florida

Constitution only authorizes MMTCs to grow, cultivate,

and process marijuana for qualified patients.

14

273 So. 3d 170, 172-73 (Fla. 1st DCA 2019) (emphasis added).

As noted by our Court in Redner, the logic of the panel opinion

and the preliminary injunction conflict with the ballot summary

provided to the voters who considered this amendment:

We also look to the ballot summary to determine the

purpose of the amendment and the will of the voters

because a ballot summary provides the purpose of the

amendment and has to present the scope of an

amendment in order to be valid. See Advisory Op. to Att'y

Gen. re Term Limits Pledge, 718 So. 2d 798, 804 (Fla.

1998) (if a ballot summary does not accurately describe

the scope of the amendment, then it fails to accurately

describe the purpose of the amendment). The Florida

Supreme Court found the ballot summary for Article X,

section 29 of the Florida Constitution fairly informed the

voters of the purpose of the proposed amendment. In re

Advisory Op. to Att'y Gen. re Use of Marijuana for

Debilitating Med. Conditions, 181 So. 3d 471, 478-79 (Fla.

2015). The ballot summary read as follows:

Allows medical use of marijuana for

individuals with debilitating medical conditions

as determined by a licensed Florida physician.

Allows caregivers to assist patients' medical use

of marijuana. The Department of Health shall

register and regulate centers that produce and

distribute marijuana for medical purposes and

shall issue identification cards to patients and

caregivers. Applies only to Florida law. Does not

immunize violations of federal law or any non-

medical use, possession or production of

marijuana.

Id. at 476. There is no language contained in the ballot

summary that would have allowed the voters to surmise

that the passing of this amendment would permit

qualified patients to cultivate and process their own

medical marijuana. Therefore, Mr. Redner's position is

not consistent with the purpose of the amendment or the

will of the voters.

15

273 So. 3d at 174 (emphasis added).

Given the logic and rationale of Redner, the preliminary

injunction here may produce the inevitable conclusion that the

amendment was approved under a flag of “false colors” when the

ballot summary informed the voters that the legislature and

governor could adopt and implement reasonable restrictions on the

use of marijuana. See Armstrong v. Harris, 773 So. 2d 7, 16 (Fla.

2000) (“A ballot title and summary cannot ‘fly under false colors’

or hide the ball’ as the amendment’s true effect”).

For all the above reasons, this Court should have agreed to

rehear this case en banc and reverse the fatally flawed preliminary

injunction. Thus, I dissent from the denial of rehearing en banc.

_____________________________

Jason 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, for

Appellees.

John 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.

James 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, Inc.

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