Fla. Dep't of Health v. Florigrown, LLC
| Decision Date | 27 August 2019 |
| Docket Number | No. 1D18-4471,1D18-4471 |
| Parties | 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. |
| Court | Court of Appeal of Florida (US) |
On appeal from the Circuit Court for Leon County.
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?
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.
MAKAR, J, concurs with written opinion.
MAKAR, J., concurring in the denial of rehearing en banc.
Florida's constitution grants the ultimate power to decide state policy to the people, who have chosen by citizens' initiative1 to constitutionalize "Medical marijuana production, possession and use." Art. X, § 29, Fla. Const.; see id. art. XI, § 5(e) (). 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 propersecurity, 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) () (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 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 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. (), 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 ().
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 itsdrafters. 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) (); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012) ( ).
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...
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