GrayRobinson: The Florida Supreme Court Rejects Florigrown’s Constitutional Challenge To The State’s Vertical Licensure System For Medical Marijuana

GrayRobinson

 

The High Court Quashes Lower Court Rulings Against the Existing Statutory Framework

By

Richard M. Blau, Esq.,Chairman

Robyn Vines, Shareholder

 

Cannabis Industry Group

On May 27, 2021, the Florida Supreme Court issued a decision weighing in on whether the existing “vertically-integrated” system of licensure for medical marijuana in the state was constitutional. Answering a certified question from the Florida First District Court of Appeals, the justices determined that the challenger, Florigrown, LLC, did not demonstrate a substantial likelihood of success on the merits as to its arguments that:

 

  • Florida’s statutory structure for vertical-integration of the medical marijuana industry conflicts with the 2016 medical marijuana amendment that voters added to the Florida Constitution as article X, section 29; and
  • Florida’s statutory caps on the limited number of medical marijuana licenses available conflicts with the Amendment.

 

The Court’s Per Curiam decision[i], supported on both points by all seven of the Court’s justices, presents a significant obstacle to litigants seeking to challenge the existing medical marijuana regulations enforced by the Florida Department of Health (DOH) and its Office of Medical Marijuana Use (OMMU). A third challenge by the Florigrown plaintiffs/respondents, alleging that the statutory scheme unconstitutionally used a special law to bestow privileges to private corporations, drew only one supporter (Justice Alan Lawson) and had no effect on the decision’s support for the existing medical marijuana statutes and regulations.

 

  1. BACKGROUND
  2. Florida’s Legalization of Medical Marijuana

 

In 2014, the Florida Legislature enacted the “Compassionate Medical Cannabis Act of 2014.”[ii] This legislation created Section 381.986 of the Florida Statutes, which for the first time opened the door to legalized cannabis — albeit ever so slightly — by allowing the medical use of “low-THC cannabis” for certain patients diagnosed with cancer or a “physical medical condition that chronically produces symptoms of seizures.” Section 381.986 required qualifying patients to enroll in a state registry and obtain their low-THC cannabis from “dispensing organizations” regulated by the state.[iii] The 2014 statute defined a “dispensing organization” as “an organization approved by the department to cultivate, process, and dispense low-THC cannabis pursuant to this section.”[iv] The statute also required DOH to “[a]uthorize the establishment of five dispensing organizations to ensure reasonable statewide accessibility and availability” of low-THC cannabis for qualifying patients.[v] One applicant was to be chosen from each of five regions in Florida.[vi]

 

One year later, the Florida Legislature expanded Florida’s medical marijuana law to allow qualified “terminally ill” 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. Florida’s “Right to Try Act[vii] provided that qualified patients who were expected to die within a year could qualify for medical cannabis, rather than low-THC cannabis.[viii]

 

In November of 2016, Floridians voted to amend the state constitution to expand the limited scope of legalized medical marijuana. A statewide referendum garnered approval from 70+ percent of the ballots that reflected a vote on the proposed marijuana amendment. In contrast to Florida’s Right to Try Act, the resulting amendment to the Florida Constitution (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.[ix]

The Amendment also mandated the state’s development of a regulated system for providing broader access to medical marijuana for certain patients suffering from debilitating medical conditions.[x] The 2016 Amendment expressly required the DOH to issue reasonable regulations necessary for the implementation and enforcement of the amendment’s provisions, for the purpose of “ensur[ing] the availability and safe use of medical marijuana by qualifying patients.”[xi] At the same time, the Amendment also provided that the Legislature was authorized to “enact[] laws consistent with” its provisions.[xii]

 

Among the regulations the DOH was required to issue under the 2016 Amendment are procedures for the registration of Medical Marijuana Treatment Centers (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.”[xiii] The Amendment defined an MMTC as:

 

[A]n 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.[xiv]

 

In June 2017, the Legislature passed and the Governor signed Senate Bill 8-A, which amended Section 381.986 of the Florida Statutes in light of the 2016 Amendment.[xv] The statutory amendments created the vertically integrated system of MMTC licensees, as well as the caps on the number of MMTC licenses, that Florigrown LLC and other unsuccessful license applicants subsequently challenged in the courts.[xvi]

 

  1. The Florigrown Litigation

 

Florigrown and others seeking a more open and expansive framework for medical marijuana licensure and regulation filed their lawsuit challenging numerous provisions of Florida’s licensing scheme for medical marijuana. Several months after filing the lawsuit, the plaintiffs moved for a temporary injunction prohibiting further registration or licensure of MMTCs under Section 381.986(8), and requiring the DOH to immediately register additional MMTCs, including Florigrown.

 

The trial court initially denied Florigrown’s injunction motion without prejudice for technical reasons, although in doing so it concluded that the plaintiffs had demonstrated a substantial likelihood of success on the merits of several constitutional claims, including the arguments that the statutory vertical-integration requirement and caps on MMTC licenses were in conflict with the 2016 Amendment.

 

Several months later, when the plaintiffs renewed their demands for injunctive relief based on DOH’s alleged inaction to remedy asserted deficiencies in medical marijuana availability and accessibility under the statutory system, the trial court reversed course and issued a temporary injunction requiring the DOH to immediately stop registering or licensing MMTCs under Section 381.986; instead, the regulators were ordered to begin registering MMTCs under the constitutional language of the 2016 Amendment.

 

The trial court’s injunction order was stayed when the DOH appealed to the Florida First District Court of Appeal (the 1st DCA). The appellate court subsequently agreed with the trial court that the Florigrown plaintiffs/appellees had demonstrated a substantial likelihood of success as to two grounds of unconstitutionality—namely, the statutory requirements of vertical integration and caps on the number of MMTC licenses. The 1st DCA also concluded that the plaintiffs/appellees had satisfied all the requirements for a temporary injunction.[xvii] However, in light of the great public importance surrounding its decision, the appellate court also granted the DOH’s motion to certify the following question for review by the Florida Supreme Court:

 

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.[xviii]

 

In rejecting the lower courts’ analyses and quashing the previously issued injunction, the Florida Supreme Court made clear that the existing statutory scheme for licensing and regulating marijuana in Florida would not be changing anytime soon – at least not by judicial fiat. Of greater import from a legal vantage, the Court’s clear and emphatic deference to the Legislature reflects the significant influence of conservative justices appointed to the bench by successive Republican governors.

 

  1. WHAT THE SUPREME COURT SAID

 

In a straight win for the DOH, the Florida Supreme Court’s May 27th decision ruled that the Florigrown plaintiffs/respondents had not demonstrated a substantial likelihood of success on the merits of any of their constitutional claims. Moreover, the Court quashed the 1st DCA’s decision.

 

Most telling and important as a larger insight into the Court’s current perspective on the balance of powers within Florida government, the Court’s decision made clear that deference to the Legislature is a guiding lodestar. In the words of the May 27th decision:

 

[O]ur consideration of Florigrown’s likelihood of success on the merits of these claims is guided by a few overarching considerations. First, article III, section 1 of the Florida Constitution vests “[t]he legislative power of the state” in the Legislature. Second, “[t]he Legislature may exercise any lawmaking power that is not forbidden by [the Constitution],” which means that, “unless legislation be clearly contrary to some express or necessarily implied prohibition found in the Constitution, the courts are without authority to declare legislative acts invalid.” Third, “statutes are presumed constitutional, and the challenging party has the burden to establish the statute’s invalidity beyond a reasonable doubt.”[xix]

 

The Court started its rejection of the Florigrown plaintiffs/respondents’ arguments by dismissing the contention that an entity qualifies for an MMTC license simply because it performs any one of the myriad functions described by the 2016 Amendment as being the responsibility of an MMTC. According to the Court:

 

In fact, section 381.986 does not undertake to define “MMTC” at all. What it does is set forth requirements that an MMTC must meet in order to be licensed. One of those requirements, the one pertinent here, is that the MMTC must “cultivate, process, transport, and dispense marijuana for medical use” and “may not contract for services directly related to the cultivation, processing, and dispensing of marijuana or marijuana delivery devices,” with certain exceptions. § 381.986(8)(e). Because the Amendment nowhere says that any entity that performs one of the listed functions is entitled to registration or licensure, the statute’s requirement that an entity perform several of those functions to be licensed does not conflict with the Amendment.

 

Because there is no conflict between the MMTC definition and the statute’s vertical-integration requirement, and the Amendment expressly left the Legislature its authority to “enact[] laws consistent with this section,” art. X, § 29(e), Fla. Const., Florigrown’s challenge to section 381.986(8)(e) does not have a substantial likelihood of success on the merits.[xx]

 

From there, the Court went on to refute every additional technical and conceptual argument raised by Florigrown and its allies. According to the Court’s decision, the Amendment’s language regarding DOH’s responsibility to register was not intended to limit the regulators’ substantive responsibilities.[xxi] Nor can the Amendment’s characterization of DOH’s responsibility to promulgate regulations be minimized as merely procedural, when the subject matter of those procedures, including (i) suspension and revocation of registration, (ii) standards to ensure proper security, (iii) record keeping, (iv) testing, (v) labeling, (vi) inspection, and (vii) safety, collectively demonstrate that the Amendment contemplated substantive standards to be imposed on entities seeking registration as MMTCs.[xxii] As the final deathblow to the Florigrown plaintiffs/respondents’ attack on vertical integration of the Florida marijuana market, the Court returned to the power of the Legislature, observing that “[b]ecause the Amendment does not entitle an entity to either registration or licensure simply because it intends to perform one of the listed functions, and the Amendment contemplates licensure according to substantive standards, the Legislature’s enactment of standards that include vertical integration is not inconsistent with the Amendment.”[xxiii]

 

Similarly, the Florida Supreme Court dispensed with the Florigrown plaintiffs/respondents’ challenge to the statutory cap on MMTC licenses in much the same fashion, i.e., construing the record in a manner most protective of the Legislature’s actions. The repeated rebuttal to each of Florigrown’s challenges either posited an alternative interpretation of the record, or invoked insufficiency of evidence as a justification for rejection of the claim:

 

  • ARGUMENT: Under the current license caps, medical marijuana is essentially unavailable in the state, which is inconsistent with the intent of the 2016 Amendment and language of the Section 381.986(8)(a)5 of the Florida Statutes.

 

RULING: “Given the provision in the statute for at least twenty-one vertically integrated MMTCs—the fourteen that were licensed at the time of the trial court’s decision and the seven others that could become licensed upon completion of rulemaking—and the statutorily planned expansion of that number in proportion to an increase in the patient population, with no limit on the amount of marijuana that can be produced and sold per MMTC, the trial court’s finding that the statute violates the Amendment by making medical marijuana essentially unavailable in the state is inconsistent with the language of the statute. It also lacks record support.”[xxiv]

 

  • ARGUMENT: The record produced in the lower courts contains sixteen affidavits the Florigrown plaintiffs submitted in which qualifying patients attested to difficulties in finding the medical marijuana products they needed, the high prices when they did find the products they needed, and the lack of knowledge and professionalism in MMTC employees with whom they dealt.

 

RULING: “These affidavits and this testimony would support a finding that Florida’s fledgling medical marijuana market is not functioning seamlessly, but not that the statute renders medical marijuana essentially unavailable for safe use in this state. ”[xxv]

 

  • ARGUMENT: DOH early on concluded that Florida required 1,993 MMTCs to serve Florida’s population of qualifying patients in 2017. The statutory caps on MMTC licenses frustrate that objective.[xxvi]

 

RULING: “Florigrown has taken this number out of context. This number was calculated by the Department before the Amendment became effective and before section 381.986 created a vertically integrated market, and it was calculated for the purpose of estimating the costs of implementing the Amendment. . . . [T]he out-of-context number emphasized by Florigrown does not support its claim that the statute was making medical marijuana essentially unavailable at the time of the trial court’s order. And, in any event, because the statute’s limitation on the number of dispensing facilities that each MMTC could operate has now expired, any claim that medical marijuana is somehow unavailable because the state does not have 1,993 facilities is even less supportable. Florigrown has not shown that the statute precludes the opening of a sufficient number of facilities to meet the demands of the population of qualifying patients.”[xxvii]

 

  • ARGUMENT: Many current MMTC licensees are not producing medical marijuana and others have sold their licenses for exorbitant amounts of money, some without having produced or sold any marijuana.

 

RULING: “Florigrown has not argued that there is a constitutional infirmity in the statute’s allowance for the sale of licenses, and any lack of production is the result of failure or inaction by the licensees, not a statutory block to production or distribution of marijuana.”[xxviii]

 

Finally, the Florida Supreme Court’s decision addressed the Florigrown plaintiffs/respondents’ contention that by creating a vertically-integrated market with a highly restrictive cap on available licenses, the barriers to entry constituted an impermissible abuse of special laws to bestow privileges on private corporations – a practice prohibited by article III, section 11(a) (12) of the Florida Constitution. At the heart of this contention is the notion that the Legislature effectively created a new cartel, i.e., the small number of MMTC license holders who together controlled the entire medical marijuana market in Florida from seed to sale.[xxix]

 

Despite a dissent by Justice Lawson, the other six justices on the Court made it clear that Florida’s medical marijuana statute, when examined in its totality and in the context of its passage by the Legislature, stands as a justifiable “licensure scheme designed to ensure regulated access to medical marijuana throughout the state within a short time frame, as contemplated by the Amendment.”[xxx]

 

Article III, section 11(a) (12) of the Florida Constitution provides that “[t]here shall be no special law or general law of local application pertaining to . . . private incorporation or grant of privilege to a private corporation.” To violate this provision, a statute must have two features: (i) it must be either a special law or a general law of local application, and (ii) it must grant a privilege to a private corporation. The Florida Constitution defines “special law” as “a special or local law.”[xxxi] A “special law” is “one relating to, or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal.”[xxxii]

 

The Court defended the Legislature’s actions in three ways. According to the Court:

 

  1. Florida’s medical marijuana statute is not a “special law” because it creates an open class of entities that may be eligible for MMTC licensure and, within that open class, creates subclassifications based upon proper distinctions and differences that inhere in or are peculiar or appropriate to the class, thus making it a general law.[xxxiii] In the case of Sections 381.986(8)(a)2.c. and 4, the law creates a separate class of MMTC applicants that is open and who may compete for the referenced licenses.
  2. Even if the law is limited in direct application, it is still a general law as long as the limitation on its application bears a reasonable relationship to its statewide purpose, which Section 381.986(8) appears to do.[xxxiv]
  3. Even though past precedents from the Florida Supreme Court have held that closed classes are an indicium of a special law,[xxxv] the Court chose to ignore its own precedents and instead rule in Florigrown that “we have not held that every statute operating on a closed class constitutes a special law.”[xxxvi] In this case, the Court observed, the class of MMTC licensees should not be viewed as closed because:

 

[T]he statute as a whole does not limit MMTC licensure to the applicants that were eligible to receive licensure by July and August of 2017 based on their participation in the process for becoming dispensing organizations. Section 381.986(8)(a)2.c. provides for licensure by October 3, 2017, of additional applicants beyond those that participated in the prior process, until a total of ten licenses have been issued under section 381.986(8)(a)2., including those issued to prior dispensing-organization applicants and another group identified in section 381.986(8)(a)2.b., which is not at issue in this proceeding. In addition, any other entity that wishes to apply for a license in the future may do so, and may potentially receive one, as the number of available licenses expands under section 381.986(8)(a)4. to meet the needs of the state.

 

All future licensees will receive licenses equal to the ones initially issued during this early stage of Florida’s medical marijuana industry. The fact that other entities may join the class of licensed MMTCs in the future as circumstances in the state change means that the class is open and the law general.[xxxvii]

 

The Court even went so far as to suggest that the marijuana statute’s special “grandfathering” provisions,[xxxviii] which provide preferential advantage in qualifying to MMTC applicants who convert citrus processing facilities to medical marijuana production,[xxxix] do not create a closed, special class. Rather, according to the Court, the citrus facility owners can be viewed merely a subclassification of the broader open class of applicants.[xl]

 

In sum, the Florida Supreme Court went to great lengths to uphold the existing statutory structure for licensing and regulating Florida’s medical marijuana industry. In doing so, the Court did more than reject the Florigrown plaintiffs/respondents’ challenges and quash the lower court’s rulings. It also demonstrated that for the foreseeable future, the Florida Legislature likely will enjoy substantial deference from the state’s judiciary.

 

III. AN INCREASINGLY CONSERVATIVE FLORIDA JUDICIARY

 

When Republican Governor Ron DeSantis took office in January of 2019, he was welcomed by three vacancies on the Florida Supreme Court. Justices Barbara Pariente, R. Fred Lewis and Peggy Quince – all viewed as moderate to liberal in their judicial temperament — had reached the mandatory retirement age. In their places, Governor DeSantis appointed Barbara Lagoa, Robert Luck and Carlos Muñiz – all three viewed as conservative jurists favoring judicial restraint and deference to the elected members of the Legislature.

 

Justices Lagoa and Luck subsequently were chosen by then-President Trump to sit on the U.S. Court of Appeals for the Eleventh Circuit. This gave Governor DeSantis a second opportunity to make additional appointments to the Florida Supreme Court. In 2020, DeSantis appointed two more conservative jurists, John Couriel and Jamie Grosshans, to fill the two additional vacancies.

 

The result is a Florida Supreme Court dominated by conservatives who generally subscribe to “textualism”[xli] and “originalism”[xlii] principles, and embrace the views of the Federalist Society.[xliii] In addition to Governor DeSantis’ appointees, the Court today counts among its more conservative members Chief Justice Charles Canady, and justices Ricky Polston and Alan Lawson. The sixth and remaining justice, Jorge LaBarga, is deemed by many observers to be a swing vote, although he has increasingly sided with the conservative majority – as he did in the Florigrown case.

 

This latest decision from the Court appears to demonstrate how that shift in judicial perspective is likely to impact Florida law for years to come. The decision in Florigrown repeatedly and emphatically announced the Court’s clear deference to four “overarching considerations,” which it defined as:

 

  • Only the Legislature can legislate;
  • The Legislature may exercise any lawmaking power that is not forbidden by the Constitution;
  • Unless legislation is clearly contrary to some express or necessarily implied prohibition found in the Constitution, the courts are without authority to declare legislative acts invalid;” and
  • Statutes are presumed constitutional, and the challenging party has the burden to establish the statute’s invalidity beyond a reasonable doubt.[xliv]

 

That deference is especially stark in the decision’s rejection of the compelling dissent from Justice Lawson regarding the impermissible use of a special law to benefit a closed class:

 

Private corporations that produce and sell medical marijuana are not aspects of the fabric of the state. They are not property of the state, and they do not individually execute functions that naturally affect the entirety of the state. Therefore, a law operating on a closed class of private corporations in the context of a medical marijuana regulation is a special law. Plainly, this statute contains provisions — section 381.986(8)(a)1. and 2.a. — that apply only to closed classes. That the statute, through section 381.986(8)(a)2.c. and 4., also creates a separate class of applicants that is open and may compete for the licenses designated for that class does not change the analysis of whether the provisions guaranteeing licenses to particular entities without competition are special laws. The majority’s holding to the contrary renders article III, section 11(a) (12) of the Florida Constitution ineffective as the limitation on legislative power that it is. Under the majority’s holding, the Legislature can avoid the prohibition against granting a privilege to a private corporation through a special law by simply pairing any effort to do so with an open, even contingent, class. We should not cast article III, section 11(a)(12) aside and ignore the closed class contained within the broader scheme of section 381.986(8).[xlv]

 

Yet, even in the face of a strongly evidenced argument bolstered by precedent, the Court in Florigrown chose to stand by the Legislature and sustain the medical marijuana statute over the Florida Constitution.

 

  1. QUO VADIS?

 

Legal observers from across the political spectrum differ strongly over the potential impact and practical consequences of the Florida Supreme Court’s current composition.[xlvi] However, observers of the Court’s jurisprudence seem unified in their conclusion that the Court is undoubtedly less judicially activist, more judicially restrained, and certainly more deferential to the Legislature.[xlvii]

 

As recently noted in the Harvard Law Review:

 

Florida’s legislature has a history of ignoring Florida’s voters. When sixty-eight percent of voters chose to amend the state constitution to regulate polluters in the Everglades, the legislature “effectively neuter[ed]” the provision. After seventy-one percent voted to amend the state constitution to legalize medical marijuana, the legislature banned smoking it. In 2018, this trend persisted when Florida voters chose to amend the state’s constitution to allow most people with felony convictions to vote after completing their sentences. In response, the legislature enacted a statute conditioning reenfranchisement on the payment of hundreds, sometimes thousands, of dollars in court fees — effectively barring from voting the vast majority of the 1.4 million people whom the constitutional amendment sought to reenfranchise.[xlviii]

 

Florida’s judges, legislators and lawyers, as well as its citizens, will be watching to see how the Florida Supreme Court’s current conservative bench applies its “overarching considerations” to decide issues that will affect deeply the rights and liberties of all Floridians.

 

Richard M. Blau leads GrayRobinson’s Regulated Products Department, as well as the firm’s Cannabis Law Group. He focuses on the laws that govern the manufacture, importation, processing distribution, marketing, sale and consumption of cannabis and its derivatives, including hemp and CBD. Richard devotes a substantial portion of his practice to trade regulation, legislative lobbying, and compliance guidance associated with mergers, acquisitions and investments in the heavily regulated cannabis industry.

 

Robyn Vines spent 20 years practicing Marital and Family Law and as a civil litigator in South Florida before expanding her focus to join the firm’s Cannabis Law Group. Her experience includes counseling new industry members to the complexities of Florida’s nascent, heavily-regulated cannabis industry. Robyn’s work encompasses guidance regarding medical marijuana as well as hemp and CBD products.

 

 

[i] A “Per Curiam” decision is issued in the name of the Court generically, rather than a decision attributed to one or more specific judges. In this case, although no particular justice authored the decision, all seven justices concurred in the decision’s conclusions that Florigrown, LLC failed to demonstrate a substantial likelihood of success for challenging the constitutionality of Florida’s existing medical marijuana statutes either based on the vertically-integrated nature of the licensure structure or the structure’s limits on numbers of licensees. With regard to a third constitutional challenge, arguing that Florida’s medical marijuana laws unconstitutionally bestowed special privileges to private entities, six justices rejected that challenge as well, while only Justice Alan Lawson issued a dissent arguing that Florigrown had produced evidence and arguments which could substantiate a claim that the Florida Legislature violated Article III of the Florida Constitution when it created the statutory framework for regulating medical marijuana by using special laws to create a closed class of privileged corporations. Florida Dept. of Health v. Florigrown, LLC et al., No. SC19-1464, slip op. at 42-52 (Fla. S. Ct. May 27, 2021) (Lawson, J., dissenting).

[ii]   Ch. 2014-157, § 1, Laws of Fla.

[iii] Id. § 381.986(1)(a), (b)-(d), (5), (7)(a).

[iv] Id. § 381.986(1)(a).

[v] Id. § 381.986(5)(b).

[vi] Id.

[vii] §381.986(1)(f), (5)(c), Fla. Stat. (2016); ch. 2016-123, § 1, Laws of Fla.

[viii] § 499.0295(2), Fla. Stat (2016).

[ix] Art. X, § 29(b)(1), Fla. Const.

[x] Art. X, § 29, Fla. Const.

[xi] Id. § 29(d).

[xii] Id. § 29(e).

[xiii] Id. § 29(d)(1)c.

[xiv] Art. X, § 29(b)(5), Fla. Const. (emphasis added). Among its constitutional challenges, Florigrown, LLC argued that the Legislature and DOH failed to give credence to the Amendment’s disjunctive use of the word “or,” contending that licenses should have been authorized and made available to qualified entities that performed any of the listed functions, rather than limiting MMTC licenses only to qualified entities that performed all the listed functions.

[xv] Ch. 2017-232, § 3, Laws of Fla.

[xvi] See § 381.986 (8) (a), (e), Fla. Stat. (2017).

[xvii] A temporary injunction is extraordinary relief that should be granted only when the party seeking the injunction has established four elements: (i) a substantial likelihood of success on the merits, (ii) the unavailability of an adequate remedy at law, (iii) irreparable harm absent entry of an injunction, and (iv) that the injunction would serve the public interest. Provident Mgmt. Corp. v. City of Treasure Island, 796 So. 2d 481, 485 (Fla. 2001) (extraordinary relief); Reform Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla. 2004) (elements of a claim for a temporary injunction).

[xviii] Florida Department of Health v. Florigrown et al., 2019 WL 4019919, at *1.

[xix] Id. at 17-18 (Citations omitted).

[xx]   Id. at 20-21.

[xxi] Id. at 21-23 (“It is clear from the Amendment that “registration” is not simply putting an entity’s name on a list as a business that performs one of the functions of an MMTC”).

[xxii] Id. at 22-23.

[xxiii] Id. at 23-24.

[xxiv] Id. at 26.

[xxv] Id. at 28.

[xxvi] It is noteworthy that Florida was already experiencing a substantial increase in qualified medical marijuana patients since passage of the Amendment in November of 2016 and the Legislature’s subsequent actions in 2017. According to OMMU’s website, on December 29, 2017 there were 13 licensed MMTCs, 25 approved dispensing locations, and 63,896 registered qualified patients. As the Florida Supreme Court noted in its opinion, “at the time of the hearing conducted on Florigrown’s motion for a temporary injunction, the registry of qualified patients had just crossed the 100,000-patent threshold.” Florida Dept. of Health v. Florigrown, LLC et al., slip op. at 28-29. Yet by May 7, 2021, there are 551,563 registered patients and 22 licensed MMTCs. OMMU data regarding the number of MMTC licensees, dispensaries and registered qualified patients are accessible online at: https://knowthefactsmmj.com/about/weekly-updates/

[xxvii] Id. at 28-29.

[xxviii] Id. at 30.

[xxix] See Florida Department of Health v. Florigrown, LLC, 2019 WL 2943329, 44Fla. L. Weekly D1744 (Fla. 1st DCA 2019), quashed, Case No. SC19-1464 (Fla. S. Ct. May 27, 2021), at *5 (Makar, J., concurring) (describing Florida’s current marijuana statutory scheme as having created an “unlawful vertically-integrated oligopoly model”).

[xxx] Id. at 35.

[xxxi] Art. X, § 12(g), Fla. Const.

[xxxii] Florida Dept. of Health v. Florigrown, LLC et al., No. SC19-1464, slip op. at 32-33 (Fla. S. Ct. May 27, 2021), citing State ex rel. Landis v. Harris, 163 So. 237, 240 (Fla. 1934).

[xxxiii] Id. at 33, citing Sanford-Orlando Kennel Club, 434 So. 2d 879, 881 (Fla. 1983).

[xxxiv] Id. at 34, citing R.J. Reynolds Tobacco Co. v. Hall, 67 So. 3d 1084, 1090-92 (Fla. 1st DCA 2011).

[xxxv] See, e.g., Ocala Breeders’ Sales Co. v. Fla. Gaming Ctrs., Inc., 793 So. 2d 899, 901 (Fla. 2001); Dep’t of Bus. Regulation v. Classic Mile, Inc., 541 So. 2d 1155, 1159 (Fla. 1989).

[xxxvi] The Court in Florigrown cites Florida Dept. of Health v. Florigrown, LLC et al., No. SC19-1464, slip op. at 32-33 (Fla. S. Ct. May 27, 2021), citing Schrader, v. Fla. Keys Aqueduct Auth., 840 So. 2d 1050, 1056 (Fla. 2003); State v. Fla. State Turnpike Auth., 80 So. 2d 337, 343-44 (Fla. 1955); Cantwell v. St. Petersburg Port Auth., 21 So. 2d 139, 140 (Fla. 1945). However, as Justice Lawson noted in his partial dissent focused solely on the final portion of the Court’s recent Florigrown decision: “When this Court has discussed the reasonable relationship between a classification and the purpose of a statute, it has done so in the context of statutes that created open classifications. . . However, I am aware of no case in which this Court has held that a statute using a closed class of private entities can be saved from a determination that it is a special law simply because the classification scheme is reasonable in relation to the statute’s purpose.” Florida Dept. of Health v. Florigrown, LLC et al., No. SC19-1464, slip op. at 46-47 (Fla. S. Ct. May 27, 2021) (Lawson, J., dissenting) (Footnote omitted).

[xxxvii] Id. at 38-39.

[xxxviii] §381.986(8)(a)1 and 2.a.

[xxxix] §381.986(8)(a)3.

[xl] Id. at 40 (“This provision does not appear to be limited to entities who owned citrus facilities at the time of the statute’s enactment, and we are aware of no reason to conclude that, even though the class is technically open, it applies to and was designed to apply to a narrow set of entities for no reason rationally related to the statute’s purpose.”).

[xli] Textualism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text. See, e.g., Tara L. Grove, “Which Textualism,” 134 Harv. L. Rev. 265 (Nov. 2020).

[xlii] Originalism or “Original Intent” is the judicial philosophy that the Constitution or any statute has a fixed meaning, a meaning determined when it was adopted; should anything be ambiguous, the conclusive meaning should be determined by historical accounts and how those who wrote the law would have interpreted it. See Robert H. Bork, “The Constitution, Original Intent, and Economic Rights,” 23 San Diego L. Rev. 823 (1986).

[xliii] According to its Website, the Federalist Society “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” Information on the Federalist Society is accessible via its Website at: https://fedsoc.org/about-us

[xliv] See Florida Dept. of Health v. Florigrown, LLC et al., No. SC19-1464, slip op. at 17-18 (Fla. S. Ct. May 27, 2021).

[xlv] Florigrown, slip op. at 50-51 (Lawson, J., dissenting) (Citations omitted).

[xlvi] See, e.g., Adam Richardson, “Florida Republicans Are Passing Unconstitutional Laws That Threaten the State Supreme Court’s Legitimacy,” Slate.com (March 15, 2021); this article is accessible online at: https://slate.com/news-and-politics/2021/03/florida-supreme-court-desantis-republicans-precedent.html; Noreen Marcus, “Florida justices rewrite rules to scrap high court’s liberal legacy,” Florida Bulldog (June 18, 2020); this article is accessible online at:

https://www.floridabulldog.org/2020/06/florida-justices-rewrite-rules-to-scrap-high-courts-liberal-legacy/; Steve Contorno, “Florida’s Supreme Court is more conservative than ever. Here’s what it could do,” Tampa Bay Times (December 5, 2019); this article is accessible online at: https://www.tampabay.com/florida-politics/buzz/2019/12/05/floridas-supreme-court-is-more-conservative-than-ever-heres-what-they-could-do/

[xlvii] See, e.g.,Zach Schlein, “How Florida’s Remade — and Conservative — Supreme Court Will Affect State Law,” Law.com (March 1, 2019); this article is accessible online at: https://www.law.com/dailybusinessreview/2019/03/01/how-floridas-remade-and-conservative-supreme-court-will-affect-state-law/?slreturn=20210428133929; Noreen Marcus, “Conservatives Note That Ron DeSantis Has Turned Florida Into 1 of the Most Conservative Courts in America,” U.S. News & World Report (Sept. 8, 2020); this article is accessible online at https://www.usnews.com/news/best-states/articles/2020-09-08/conservatives-note-that-ron-desantis-has-turned-florida-into-the-most-conservative-court-in-america; Jerry Lambe, “‘An Earthquake in Florida’s Criminal Justice System’: Conservatives on Florida Supreme Court Overturn Decades-Old Death Penalty Precedent,” LawandCrime.com (October 29, 2020); this article is accessible online at: https://lawandcrime.com/high-profile/an-earthquake-in-floridas-criminal-justice-system-conservatives-on-florida-supreme-court-overturn-decades-old-death-penalty-precedent/

[xlviii] Note, Jones v. Governor of Florida: Eleventh Circuit Upholds Statute Limiting Constitutional Amendment on Felon Reenfranchisement.” 134 Harv. L. Rev 2291 (April 2021); this article is accessible online at https://harvardlawreview.org/2021/04/jones-v-governor-of-florida/

Top 200 Cannabis Lawyers

Cannabis Law Journal – Editorial Board Members

Editor – Sean Hocking

Author Bios

Canada
Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Nicaragua
Elvin Rodríguez Fabilena

USA

General
Julie Godard
Carl L Rowley -Thompson Coburn LLP

Arizona
Jerry Chesler – Chesler Consulting

California
Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Colorado
Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Florida
Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

Illinois
William Bogot – Fox Rothschild

Massachusetts
Valerio Romano, Attorney – VGR Law Firm, PC

Nevada
Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Oregon
Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Pennsylvania
Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild