Fla. Dep't of Health v. Florigrown, LLC
| Decision Date | 27 May 2021 |
| Docket Number | No. SC19-1464,SC19-1464 |
| Court | Florida Supreme Court |
| Parties | FLORIDA DEPARTMENT OF HEALTH, etc., et al., Petitioners, v. FLORIGROWN, LLC, etc., et al., Respondents. |
Colleen Ernst, Executive Office of the Governor, Tallahassee, Florida; Louise Wilhite-St. Laurent, Florida Department of Health, Tallahassee, Florida; and Jason Gonzalez, Daniel Nordby, Amber Nunnally, and Rachel Procaccini of Shutts & Bowen LLP, Tallahassee, Florida, for Petitioner
Katherine E. Giddings, Tallahassee, Florida, Jonathan S. Robbins, Fort Lauderdale, Florida, and Ari H. Gerstin of Akerman LLP, Miami, Florida, for Respondent
John M. Lockwood, Thomas J. Morton, and Devon Nunneley of The Lockwood Law Firm, Tallahassee, Florida; James A. McKee of Foley & Lardner LLP, Tallahassee, Florida; and William D. Hall III and Daniel R. Russell of Dean Mead & Dunbar, Tallahassee, Florida, Amici Curiae DFMMJ Investments, LLC, d/b/a Liberty Health Sciences and Acreage Florida, Inc., Perkins Nursery, Inc., San Felasco Nurseries, Inc. d/b/a Harvest, Mount Dora Farms, LLC, and Better - Gro Companies, LLC, d/b/a Columbia Care Florida, and Dewar Nurseries, Inc.
Mohammad O. Jazil of Hopping Green & Sams, P.A., Tallahassee, Florida; and Daniel William Bell, General Counsel, Florida House of Representatives, Tallahassee, Florida, Amicus Curiae The Florida House of Representatives
Seann M. Frazier, Marc Ito, and Kristen Bond of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, Florida, Amicus Curiae Louis Del Favero Orchids, Inc.
Karl E. Pearson and Courtney M. Crossland of Pearson Doyle Mohre & Pastis LLP, Maitland, Florida, Amicus Curiae Liner Source, Inc.
Jeff Kottkamp of Jeff Kottkamp, P.A., Tallahassee, Florida, Amicus Curiae Triangle Capital, Inc.
We have for review the First District Court of Appeal's decision in Florida Department of Health v. Florigrown, LLC (Florigrown I ), No. 1D18-4471, ––– So.3d ––––, 2019 WL 2943329 (Fla. 1st DCA July 9, 2019). The First District partially upheld a temporary injunction that prohibits enforcement of certain statutory provisions relating to the regulation of medical marijuana treatment centers (MMTCs). We have jurisdiction because the district court passed upon and certified a question to this Court as one of great public importance. Fla. Dep't of Health v. Florigrown (Florigrown II ), No. 1D18-4471, ––– So.3d ––––, ––––, 2019 WL 4019919, at *1 (Fla. 1st DCA Aug. 27, 2019) ; see art. V, § 3(b)(4), Fla. Const.
The temporary injunction was entered during a pending lawsuit filed by Florigrown, LLC, and Voice of Freedom, Inc. (collectively, Florigrown), against the Florida Department of Health (Department) and other state actors. Florigrown's lawsuit includes several constitutional challenges to section 381.986(8), Florida Statutes (2017). Specifically, Florigrown challenges two provisions as inconsistent with the recent medical marijuana amendment to the Florida Constitution, article X, section 29 (the Amendment). One of those provisions mandates that MMTCs use a vertically integrated supply chain, see § 381.986(8)(e), and the other places statutory caps on the number of MMTC licenses available to authorize entities to participate in the medical marijuana industry, see § 381.986(8)(a). Florigrown also challenges three provisions of section 381.986(8) as special laws granting privileges to private corporations, contrary to article III, section 11(a)(12) of the Florida Constitution. See § 381.986(8)(a) 1., 2.a., 3. The trial court agreed with Florigrown as to each argument and entered a temporary injunction.
In its decision partially upholding the injunction, the First District certified the following as a question of great public importance:
WHETHER [FLORIGROWN HAS] DEMONSTRATED A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS OF [ITS] 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.
Florigrown II , ––– So.3d at ––––, 2019 WL 4019919, at *1.
Having considered the certified question together with Florigrown's special-law-based challenge to section 381.986(8), we hold that Florigrown has not demonstrated a substantial likelihood of success on the merits of any of its constitutional claims. Accordingly, and as is fully explained below, we quash the First District's decision.
In November 2016, the people of Florida amended our state constitution to mandate the development of a carefully regulated system for providing access to marijuana for certain patients suffering from debilitating medical conditions. Art. X, § 29, Fla. Const. The Amendment requires the Department to "issue reasonable regulations necessary for the implementation and enforcement of" its provisions, for the purpose of "ensur[ing] the availability and safe use of medical marijuana by qualifying patients." Id . § 29 (d). At the same time, the Amendment contemplates that the Legislature may "enact[ ] laws consistent with" its provisions. Id . § 29 (e).
Among the regulations the Department is required to issue are "[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. The Amendment required the Department to issue these procedures within six months of the Amendment's effective date, January 3, 2017, and to begin registering MMTCs within nine months of that date. Id . § 29 (d)(1) (2).
The Amendment provides state-law immunity from criminal or civil liability for actions taken by an MMTC in compliance with the Amendment and the Department's regulations. Id. § 29 (a)(3).1 It defines "MMTC" as follows:
an entity that acquires, cultivates, possesses, processes ..., 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.
This proceeding is based on a challenge to a statute enacted in light of the Amendment and to the Department's deference to that statute. Because the statute builds on prior statutory law, a review of the pre-Amendment law addressing the medical use of marijuana in Florida will provide context for some of the challenged provisions.
In 2014, the Legislature enacted the "Compassionate Medical Cannabis Act of 2014." Ch. 2014-157, § 1, Laws of Fla. This act created section 381.986, which allowed the medical use of "low-THC cannabis" for certain patients diagnosed with cancer
or a "physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms." § 381.986(2), Fla. Stat. (2014). This statute required such patients to be listed in the state registry and to obtain their low-THC cannabis from "dispensing organizations" regulated by the state. Id . § 381.986(1)(a), (b)-(d), (5), (7)(a). Under the 2014 law, "dispensing organization" was defined as "an organization approved by the department to cultivate, process, and dispense low-THC cannabis pursuant to this section." Id . § 381.986(1)(a). The Department was required to "[a]uthorize the establishment of five dispensing organizations to ensure reasonable statewide accessibility and availability" of low-THC cannabis for qualifying patients. Id . § 381.986(5)(b). One applicant was to be chosen from each of five regions in Florida. Id .
The Legislature expanded Florida's cannabis law in 2016 to allow certain qualified patients to obtain full-potency "medical cannabis" from dispensing organizations and to authorize the approval of three additional dispensing organizations once 250,000 qualified patients were registered. § 381.986(1)(f), (5)(c), Fla. Stat. (2016) ; ch. 2016-123, § 1, Laws of Fla. To qualify for medical cannabis, rather than low-THC cannabis, qualified patients had to be terminally ill and expected to die within a year. §§ 499.0295(2), 381.986(2), Fla. Stat. (2016). In contrast, the Amendment allows the use of full-potency marijuana for medical purposes for qualified patients with "debilitating medical condition[s]," a term defined to include a more expansive set of conditions than the prior law and not limited to patients who are terminally ill. Art. X, § 29(b)(1), Fla. Const.
In June 2017, the Legislature passed and the Governor signed Senate Bill 8-A, which amended section 381.986 in light of the Amendment. Ch. 2017-232, § 3, Laws of Fla. The portions of that law that are most pertinent to this proceeding are the following:
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