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Filing# 75877906 E-Filed 08/02/2018 11:21:08 AM
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA
FLORIGROWN, LLC, a Florida limited liability company and VOICE OF FREEDOM, INC. d/b/a Florigrown,
CASE NO.: 2017 CA 002549
FLORIDA DEPARTMENT OF HEALTH, OFFICE OF MEDICAL MARIJUANA USE,
ORDER DENYING MOTION FOR TEMPORARY INJUNCTION WITHOUT PREJUDICE; SCHEDULING CASE MANAGEMENT CONFERENCE
An evidentiary hearing was held on July 16 and 19, 2018 on the motion for temporary injunction of Plaintiffs, Florigrown, LLC, and Voice of Freedom, Inc., d/b/a Florigrown Gointly, “Florigrown”). The court has considered the testimony, the matters of record, the memoranda of the parties, and the law. Based upon those considerations, the motion for temporary injunction is
denied, without prejudice, with a case management conference scheduled for October 3, 2018, at
2:00 p.m. for one hour.
To obtain a temporary injunction the moving party must establish (1) a substantial likelihood of success on the merits, (2) lack of an adequate remedy at law, (3) irreparable harm
Gainesville Woman Care, LLC v. State, 210 So.3d 1243 (Fla. 2017). The court finds Florigrown has a substantial likelihood of success on the merits and lack of an adequate remedy at law. However, at this time the court does not find irreparable harm absent the issuance of an injunction nor that injunctive relief for Florigrown will serve the public interest. Constitution (the Medical Marijuana Amendment); (2) declare that Section 381.986(8), Florida Statutes (2017)-as well as the rules promulgated thereunder-are unconstitutional; (3) enjoin the Department from impermissibly restricting the Medical Marijuana Amendment; and (4) mandate that the Department register Florigrown in accordance with the Amendment, such that it can begin the process to obtain licensure as a Medical Marijuana Treatment Center (MMTC).
The Medical Marijuana Amendment was approved November 8, 2016, by Florida voters, with 71.32% voting in favor of it. Thus, the right to medical marijuana, as stated in the Amendment, is the law of our State. The Amendment is unusual for a Constitutional provision because it places duties on the Department of Health, not the Legislature, to ensure the availability and safe use of medical marijuana by qualifying patients. It places time limits on those duties of the Department, obviously with the intent of expediting the availability and safe use of medical marijuana.
The Amendment defines a MMTC as follows:
“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.
The critical duties assigned to the Department, in pertinent part, are as follows:
DUTIES OF THE DEPARTMENT. 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.
- 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:
c. Procedures 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.
* * *
- Identification cards and registrations. The Department shall begin issuing qualifying patient and caregiver identification cards, and registering MMTCs no later than nine (9) months after the effective date of this section.
- 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.
The Amendment became effective January 3, 2017. The Department had the duty to promulgate implementing regulations by July 3, 2017 (six months after the Amendment’s January 3, 2017 effective date) and to begin registering MMTCs by October 3, 2017 (nine months after the Amendment’s January 3, 2017 effective date).
On January 17, 2017, Florigrown submitted to the Department its attempted registration as an MMTC. On January 20, 2017, the Department denied Florigrown’s attempted registration. On or about February 8, 2017, Florigrown requested an administrative hearing on the registration denial. On February 22, 2017, the Department dismissed Florigrown’s petition.
In June 2017, the Florida Legislature enacted Senate Bill 8-A, entitled “an act relating to
medical marijuana,” which became effective June 23, 2017. The bill was the Legislature’s attempt to provide guidance to the Department with regard to the Department’s duties under the Amendment. The legislative guidance, though, was in several ways inconsistent with the Amendment. Specifically, SB 8-A amended Section 381.986(8), Florida Statutes. This provision of SB 8-A: (a) modified the definition of MMTC from the plain text of the Amendment, (b) limited the number of licenses available by placing caps on the number of MMTCs to be
ultimately licensed, and (c) required the mandatory issuance of “licenses” to a closed class of private entities that were unsuccessful applicants for a “Dispensing Organization” license.
With regard to the improper modification of the definition of a MMTC, the Amendment at Section 29(b)(5) defines “Medical Marijuana Treatment Center” as “an entity that acquires, cultivates, possesses, processes . . . transfers, transports, sells, distributes, dispenses, !!! administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department. In contrast, Section 381.986(8)(e) provides “[a] licensed medical marijuana treatment center shall cultivate,
process, transport, and dispense marijuana for medical use.” Through its use of “and” rather than “or,” Section 391.986 materially alters, restricts, and contradicts the definition of a MMTC in the Amendment.
As the Department explained during the July 16 hearing, Section 381.986 requires full vertical r “stacked”-integration, which requires every MMTC in Florida to handle all aspects of the medical marijuana supply chain, from cultivation through manufacturing and delivery. Under “horizontal” or “un stacked” integration, all of the various entities comprising the marijuana supply chain are licensed separately.
With regard to the statutory caps on the number of MMTCs, the Amendment places no limits or caps on the number of MMTCs in Florida. Section 381.986(8) does place limits on the number of MMTCs permitted in the State. In the July 16 hearing, the Department acknowledged
this distinction and stated that the only source for the limitation on the number of MMTCs is the
language of Section 381.986(8). That directly contradicts the Amendment. Such limits directly undermine the clear intent of the Amendment, which by its language seeks to prevent arbitrary restrictions on the number of MMTCs authorized to conduct business in the State. The Amendment mandates the availability and safe use of medical marijuana by qualifying patients.
The Constitution is a limitation on the power of the Legislature. Consequently, a statute
enacted by the Legislature may not restrict a right granted under the Constitution. To the extent a statute conflicts with express or clearly implied mandates of the Constitution, the statute must fall. Notami Hospital of Florida v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006). The court finds Florigrown has a substantial likelihood of success in its claim that Section 381.986 arbitrarily caps the number of MMTC’s, in conflict with the Amendment.
Subsequent to the adoption of SB 8-A, 14 entities have been registered by the Department as MMTCs. Seven of those were existing “Dispensing Organizations” under the medical marijuana program established by the Legislature in 2014 to provide “low THC marijuana,” to a very limited number of patients. They were registered pursuant to 381.986(8)(a)1.
The remaining seven were registered pursuant to 381.986(8)(a)2.a. These entities had in
common that they (a) had been registered as nurseries in the State of Florida for at least 30 consecutive years in 2015, (b) participated in the 2015 application process for Low-THC dispensing organizations, and (c) were not selected to participate in that program, and had never cultivated, processed, or dispensed medical marijuana in Florida. Section 381.986(8), Florida Statutes restricts the number of registrations the Department may issue.
The court finds the provisions set forth in Sections 381.986(8)(a)l., 381.986(8)(a)2a., and
381.986(8)(a)3 grant special rights, benefits, and advantages to certain private entities, and there has been no testimony or other evidence to suggest these provisions bear a rational relationship to ensuring the supply of safe medical marijuana to qualifying patients. Senate Bill 8-A was
passed as a general law, thus the provisions providing “licenses” to the select few described herein above constitute impermissible special laws which violate Article III, Section l l(a)(l2) of the Florida Constitution.
The Department testified that it registered and licensed no MMTCs that are not among the special classes established in Senate Bill 8-A.The Department (through Director Christian Bax and Deputy Director Courtney Coppola) testified that it was not provided any authority to evaluate the qualifications or attestations regarding the infrastructure or technical abilities of those entities registered pursuant to 381.986(8)(a)2.a., nor did they take any such action prior to registration of these entities.
The power of the Legislature is limited by the Florida Constitution, which prohibits the Legislature from passing certain special laws. Specifically, Article III, Section 1l(a)(l2) states “‘there shall be no special law or general law of local application pertaining to . . . private incorporation or grant of privilege to a private corporation.” In Lawnwood Medical Center v. Seeger, 990 So.2d 503 (Fla. 2008), our Supreme Court examined the word “privilege” and held that the term “encompasses more than a financial benefit and includes a ‘right,’ ‘benefit,’ or ‘advantage’ granted to a private corporation. This court finds Florigrown has a substantial likelihood of success in its claim that Section 38 l .986(8)(a)2.a. comprises an invalid special law. This court understands the importance of both the Legislature and the Department in developing a thorough, effective, and efficient framework within which to regulate medical marijuana, as directed by the Amendment. Florigrown has established that the Legislature and the Department have such a framework and are implementing it, currently, with other registrants. They have simply chosen to restrict access to this framework in a manner that violates the
For the reasons stated in this order, the court finds Florigrown has a substantial likelihood of success on the merits. The court further finds there is no adequate remedy at law for the harm Florigrown will suffer if it continues to be denied the opportunity to obtain MMTC registration, and consequently the ability to provide patient care to Florida citizens in need of medical marijuana treatment. There is no way to quantify the harm Florigrown will suffer by being denied its registration.
But Florigrown will not suffer irreparable harm absent the entry of a temporary injunction. It will have the ability to apply and compete for one of the remaining available MMTC licenses, and thus still has the opportunity to obtain licensure. Additionally, a temporary injunction in this case at this time is not in the public interest. An injunction should preserve the status quo during the pendency of the case. The requested injunction at this time would substantially alter the status quo by halting the Department’s existing process and procedures for the issuance of MMTC licenses as well as the rulemaking currently underway to initiate the application process.
In light of the foregoing Plaintiff Florigrown’s motion for temporary injunction is denied, without prejudice.
The reason the temporary injunction is denied without prejudice is the court is concerned
about these findings of no irreparable harm and that granting a temporary injunction at this time is not in the public interest. The passing of more time may alter those findings. Accordingly, a case management conference is scheduled in this case for October 3, 2018, at 2:00 p.m., for one
Case No. 2017 CA 2549
J ge Charles W. Dodson
C” cuit Court Judge
Copies furnished to:
All counsel of record via E-Portal
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