Florida Department of Health, etc. v. Florigrown, LLC, etc.

Supreme Court of Florida
____________
No. SC19-1464
____________
FLORIDA DEPARTMENT OF HEALTH, etc., et al.,
Petitioners,
vs.
FLORIGROWN, LLC, etc., et al.,
Respondents.
May 27, 2021
CORRECTED OPINION
PER CURIAM.
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, 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,
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
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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, 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.
BACKGROUND
In November 2016, the people of Florida amended our state
constitution to mandate the development of a carefully regulated
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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
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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
1. Marijuana is still an illegal controlled substance under
federal law, with no exception for medicinal use. 21 U.S.C. §§
812(b)(1), 812(c), 841(a), 844(a); Gonzales v. Raich, 545 U.S. 1, 14,
27, 29 (2005).
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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),
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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:
(8) MEDICAL MARIJUANA TREATMENT CENTERS.—
(a) The department shall license medical marijuana
treatment centers to ensure reasonable statewide
accessibility and availability as necessary for qualified
patients registered in the medical marijuana use registry
and who are issued physician certification under this
section.
1. As soon as practicable, but no later than July 3,
2017, the department shall license as a medical
marijuana treatment center any entity that holds an
active, unrestricted license to cultivate, process,
transport, and dispense low-THC cannabis, medical
cannabis, and cannabis delivery devices, under former s.
381.986, Florida Statutes 2016, before July 1, 2017, and
which meets the requirements of this section. . . .
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2. The department shall license as medical
marijuana treatment centers 10 applicants that meet the
requirements of this section, under the following
parameters:
a. As soon as practicable, but no later than August
1, 2017, the department shall license any applicant
whose application was reviewed, evaluated, and scored
by the department and which was denied a dispensing
organization license by the department under former s.
381.986, Florida Statutes 2014; which had one or more
administrative or judicial challenges pending as of
January 1, 2017, or had a final ranking within one point
of the highest final ranking in its region under former s.
381.986, Florida Statutes 2014; which meets the
requirements of this section; and which provides
documentation to the department that it has the existing
infrastructure and technical and technological ability to
begin cultivating marijuana within 30 days after
registration as a medical marijuana treatment center.
....
c. As soon as practicable, but no later than October
3, 2017, the department shall license applicants that
meet the requirements of this section in sufficient
numbers to result in 10 total licenses issued under this
subparagraph, while accounting for the number of
licenses issued under sub-subparagraphs a. and b.
3. For up to two of the licenses issued under
subparagraph 2., the department shall give preference to
applicants that demonstrate in their applications that
they own one or more facilities that are, or were, used for
the canning, concentrating, or otherwise processing of
citrus fruit or citrus molasses and will use or convert the
facility or facilities for the processing of marijuana.
4. Within 6 months after registration of 100,000
active qualified patients in the medical marijuana use
registry, the department shall license four additional
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medical marijuana treatment centers that meet the
requirements of this section. Thereafter, the department
shall license four medical marijuana treatment centers
within 6 months after the registration of each additional
100,000 active qualified patients in the medical
marijuana use registry that meet the requirement of this
section.
....
(e) A licensed medical marijuana treatment center
shall cultivate, process, transport, and dispense
marijuana for medical use. A licensed medical marijuana
treatment center may not contract for services directly
related to the cultivation, processing, and dispensing of
marijuana or marijuana delivery devices, except that a
medical marijuana treatment center licensed pursuant to
subparagraph (a)1. may contract with a single entity for
the cultivation, processing, transporting, and dispensing
of marijuana and marijuana delivery devices.
§ 381.986 (8) (a), (e), Fla. Stat. (2017).
As noted at the outset, Florigrown’s lawsuit challenges some of
these provisions as inconsistent with the Amendment and others as
invalid special laws granting privileges to private corporations.
Several months after filing the lawsuit, Florigrown moved for a
temporary injunction prohibiting further registration or licensure of
MMTCs under section 381.986(8) and requiring the Department to
immediately register MMTCs, including Florigrown in particular.
The trial court held an evidentiary hearing on Florigrown’s
motion in July 2018. At that time, there were fourteen MMTCs
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registered in Florida, and the Department had not issued MMTC
licenses to any entities that had not applied to be dispensing
organizations under the former law. In fact, there was no rule in
place for registering MMTCs that had not applied to be dispensing
organizations. However, the Department was pursuing rulemaking
under section 381.986 that would allow new entities to apply for
MMTC licensure.
A Department representative testified that, once rulemaking
concluded, seven MMTC licenses would be available “to any
company, including a company such as Florigrown,” except that
one such license would have to go to a member of a class that
Florigrown is not part of (and which is defined in section
381.986(8)(a)2.b., a provision not specifically at issue in this
proceeding), and two such licenses would be subject to the citrus
preference.
The trial court initially denied Florigrown’s motion without
prejudice. The trial court recognized that, to be entitled to a
temporary injunction, Florigrown needed to show (1) that it has a
substantial likelihood of success on the merits, (2) that there is no
adequate remedy at law, (3) that it would suffer irreparable harm in
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the absence of a temporary injunction, and (4) that the injunction
would serve the public interest. The trial court concluded that
Florigrown had demonstrated a substantial likelihood of success on
the merits of its constitutional claims—specifically, that the vertical-
integration requirement and statutory caps conflict with the
Amendment and that parts of the licensure scheme are invalid as
special laws granting privileges to private corporations. The trial
court also found that Florigrown has no adequate remedy at law for
these violations and for the Department’s refusal to register
Florigrown outside the statutory scheme. However, the trial court
further found that Florigrown had failed to show that the denial of
the temporary injunction would cause irreparable harm or that
granting the temporary injunction would serve the public interest.
Regarding the irreparable-harm inquiry, the trial court
observed that, without the temporary injunction, Florigrown would
still “have the ability to apply and compete for one of the remaining
available MMTC licenses.”
As for the public interest, the trial court observed that “[a]n
injunction should preserve the status quo during the pendency of
the case” and then concluded, “The requested injunction at this
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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.”
The trial court explained that the denial of the temporary
injunction was without prejudice because “[t]he passing of more
time may alter” the findings concerning irreparable harm and the
public interest. It scheduled a case management conference for two
months in the future to reassess those findings.
Shortly before the conference, Florigrown renewed its motion
for a temporary injunction, alleging that the Department had failed
to take “any meaningful action in recognition of” the trial court’s
order. At the conference, Florigrown’s counsel advised that the
Department had filed a proposed rule to implement portions of
section 381.986 that the court had found substantially likely to be
unconstitutional on the merits. In addition, Florigrown’s counsel
advised that the Department had announced at a public hearing
that it intended to move forward with rulemaking under section
381.986. Finding that the Department had failed to change course
since entry of the earlier order, the trial court entered a temporary
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injunction requiring the Department to immediately stop registering
or licensing MMTCs under section 381.986; to begin registering
MMTCs under the constitutional language alone within two weeks;
and specifically to register Florigrown as an MMTC within two
weeks unless the Department could show before that deadline that
“such registration would result in unsafe use of medical marijuana
by qualifying patients.” The trial court found irreparable harm
because the Department had not taken action in response to its
prior order. The trial court determined that the injunction was in
the public interest because the Amendment had received the
approval of over seventy percent of voters and because compliance
with the Amendment is required to ensure the availability and safe
use of medical marijuana.
The trial court’s order was stayed, and the Department
appealed to the First District. The First District agreed with the
trial court that Florigrown 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—and further agreed that all the
requirements for a temporary injunction were met. Florigrown I,
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2019 WL 2943329, at *2-*5. As a result, over a dissent, the First
District upheld the injunction “to the extent it requires the
Department to consider Florigrown’s request for licensure without
applying the portions of the statutory scheme [that the First
District’s] opinion identifies as being [preliminarily]
unconstitutional.” Id. at *1. The First District did not find it in the
public interest for the Department “to register MMTCs pursuant to
a preliminary injunction without applying other regulations to
uphold the safety of the public” and, therefore, explained that it was
affirming “that portion of the injunction that precludes [the
Department] from enforcing the [preliminarily] unconstitutional
provisions but allows the Department a reasonable period of time to
exercise its duties under the constitutional amendment.” Id. at *5.
Later, on the Department’s motion, the First District certified the
language quoted at the beginning of this opinion—pertaining to
Florigrown’s likelihood of success on the merits of its challenges to
the vertical-integration requirement and the statutory caps—as a
question of great public importance. Florigrown II, 2019 WL
4019919, at *1.
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We accepted review and, for the reasons explained below, now
quash the First District’s decision.
ANALYSIS
The Department urges us to answer the certified question in
the negative and, beyond that, challenges almost every aspect of the
trial court’s order. Florigrown defends all aspects of the trial court’s
order, including its conclusion, not addressed by the First District,
that certain provisions of section 381.986(8)(a) violate the
constitutional prohibition against special laws granting privileges to
private corporations. We are unpersuaded by Florigrown’s defense
of the trial court’s order.
A temporary injunction is extraordinary relief that should be
granted only when the party seeking the injunction has established
four elements: (1) a substantial likelihood of success on the merits,
(2) the unavailability of an adequate remedy at law, (3) irreparable
harm absent entry of an injunction, and (4) 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). We review a trial
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court’s factual findings on these elements for competent,
substantial evidence, and we review its legal conclusions de novo.
Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258, 1265
(Fla. 2017). To the extent the decision to enter a temporary
injunction involves an exercise of discretion, we defer to the trial
court unless it has abused its discretion. See id. at 1258.
In the analysis that follows, we explain our conclusion that
Florigrown has failed to show a substantial likelihood of success on
the merits of its constitutional challenges to section 381.986(8). We
need not discuss the remaining elements of the temporary
injunction test, because a movant’s failure to establish any single
element means that the injunction must be denied.
Florigrown’s Constitutional Claims
There are three claims at issue: (1) that section 381.986(8)’s
vertical-integration requirement conflicts with the Amendment; (2)
that section 381.986(8)’s caps on the number of MMTC licenses
available conflicts with the Amendment; and (3) that three aspects
of section 381.986(8)(a) violate Florida’s constitutional prohibition
against the use of a special law to grant a privilege to a private
corporation.
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All of these claims present issues of statutory or constitutional
construction, which we review de novo, and, to the extent these
texts are clear and unambiguous, we accord them their plain
meaning without resort to external sources cited in support of a
litigant’s view of what the legislators or voters intended beyond that
plain meaning. Advisory Op. to Governor re Implementation of
Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070,
1078 (Fla. 2020); Israel v. DeSantis, 269 So. 3d 491, 495 (Fla.
2019). To the extent the claims involve issues of fact, we review the
trial court’s findings for competent, substantial evidence in the
record. St. Vincent’s Med. Ctr., Inc. v. Mem’l Healthcare Grp., Inc.,
967 So. 2d 794, 799 (Fla. 2007).
Additionally, our 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
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courts are without authority to declare legislative acts invalid.”
Savage v. Bd. of Pub. Instr. for Hillsborough Cty., 133 So. 341, 344
(Fla. 1931). Third, “statutes are presumed constitutional, and the
challenging party has the burden to establish the statute’s
invalidity beyond a reasonable doubt.” Jackson v. State, 191 So. 3d
423, 426 (Fla. 2016). With these considerations in mind, we turn to
Florigrown’s constitutional challenges to section 381.986.
Vertical Integration
Florigrown argues, and the lower courts agreed, that
Florigrown has a substantial likelihood of success on the merits of
its claim that section 381.986(8)(e)’s vertical-integration
requirement conflicts with the definition of “MMTC” provided in the
Amendment. As noted earlier, the Amendment defines “MMTC” as
“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. In
pertinent part, section 381.986(8)(e) provides as follows:
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A licensed medical marijuana treatment center shall
cultivate, process, transport, and dispense marijuana for
medical use. A licensed medical marijuana treatment
center may not contract for services directly related to the
cultivation, processing, and dispensing of marijuana or
marijuana delivery devices, except that a medical
marijuana treatment center licensed pursuant to
subparagraph (a)1. may contract with a single entity for
the cultivation, processing, transporting, and dispensing
of marijuana and marijuana delivery devices.
The trial court and the First District concluded that section
381.986(8)(e) modifies or restricts a right granted under the
Amendment by requiring an MMTC to perform several specified
functions in order to be licensed as an MMTC, whereas the
constitution defines “MMTC” using a disjunctive list of those and
other functions. We disagree. In reaching their conclusions, the
trial court and the First District misconstrued the constitution by
overlooking the context of the definition of “MMTC” provided in the
Amendment and by failing to give due consideration to the authority
that the Amendment, by its plain language and when considered
together with article III, section 1 of the Florida Constitution, leaves
to the Legislature in the establishment of policy related to MMTCs.
More specifically, Florigrown contends, and the lower courts
found, that the Amendment’s definition of “MMTC” conflicts with
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the vertical-integration requirement. Article X, section 29(b)(5) of
the Florida Constitution provides a two-part definition of “MMTC.”
That definition, in itself, gives no entity the right to be either
registered or licensed. Under that definition, an entity is an MMTC
if it “[1] 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 [2] is
registered by the Department.” Art. X, § 29(b)(5), Fla. Const. Thus,
an entity is an MMTC if it performs any one of the listed functions
and is registered by the Department. Id. Section 381.986(8)(e) does
not say otherwise.
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
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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.
Additionally, to the extent Florigrown is arguing that the
Legislature has no right to require licensure of MMTCs or that the
Department is required to register MMTCs who do not qualify for
licensure under the statute, we conclude that Florigrown does not
have a substantial likelihood of success on the merits of this claim.
Florigrown points out that the Amendment does not speak of
“licensing” MMTCs but instead directs the “registering” of MMTCs.
Art. X, § 29(d)(3), Fla. Const. However, this is not a conflict
between the statute and the constitution but a difference in the
chosen labels. It is clear from the Amendment that “registration” is
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not simply putting an entity’s name on a list as a business that
performs one of the functions of an MMTC. The constitution directs
the Department to promulgate “[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.” Art. X, § 29(d)(1)c., Fla. Const. This language establishes
that the right to register does not result directly from the
constitutional definition of MMTC, but from regulations
promulgated by the Department providing standards to be met.
Notably, the constitutional definition of “MMTC” does not provide
for unilateral registration “with” the Department; it requires an
entity to be registered “by” the Department, according to regulations
designed to ensure safety and security, before it can be considered
an MMTC and entitled to immunity from state-law liability. Art. X,
§ 29(b)(5), (d)(1)c., Fla. Const.
While the Amendment uses the term “procedures” to refer to
the regulations the Department must promulgate, the language
describing the subject matter of those procedures—including
“suspension and revocation of registration” and “standards to
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ensure proper security, record keeping, testing, labeling, inspection,
and safety”—indicates that the Amendment contemplates
substantive standards to be imposed on entities seeking registration
as MMTCs. See art. X, § 29(d)(1)c., Fla. Const. Thus, the
registration the Amendment speaks of operates as a license.
Indeed, this Court understood this language to refer to licensure
when it reviewed the Amendment for placement on the ballot as a
citizen initiative. See In re Adv. Op. to Att’y Gen. re Use of Marijuana
for Debilitating Med. Conditions, 181 So. 3d 471, 477 (Fla. 2015).
In sum, the Amendment defines “MMTC” by reference to its
“regist[ration] by the Department,” requires the Department to
promulgate substantive regulations for both the issuance and
potential revocation of such “registration,” and further, expressly
recognizes the Legislature’s authority to “enact[] laws consistent
with this section.” Art. X, § 29(e), Fla. Const. Because 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
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Amendment. Accordingly, the vertical-integration requirement of
section 381.986(8)(e) is within the Legislature’s specific authority
recognized in article X, section 29(e) and its plenary lawmaking
authority set out in article III, section 1 of the Florida Constitution.
Florigrown does not have a substantial likelihood of success on the
merits of its challenge to the statute’s vertical-integration
requirement for licensure as an MMTC.
Statutory Caps on the Number of Licenses
As for the statutory caps set out in section 381.986(8)(a),
Florigrown argues, and the lower courts agreed, that Florigrown has
a substantial likelihood of success on the merits of its claim that
these caps violate the Amendment by placing an unreasonable
restriction on the medical marijuana industry and conflicting with
the Amendment’s purpose of “ensur[ing] the availability and safe
use of medical marijuana by qualifying patients.” Art. X, § 29(d),
Fla. Const. These rulings are not based on a direct conflict between
any constitutional language and the statute. They are based partly
on a factual finding that the statutory caps have made medical
marijuana unavailable, or insufficiently available, in this state and
partly on a legal conclusion that the statutory caps are
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unreasonable in light of the Amendment’s purpose. We disapprove
of these rulings because competent, substantial evidence does not
support a finding that the statute has made medical marijuana
unavailable, and the Amendment does not preclude a limit on the
number of MMTCs that can be licensed.2
To assess Florigrown’s argument and the lower courts’ rulings,
we first review and explain the statutory caps. Under section
381.986(8)(a), the Department was required to issue a limited
number of licenses between the date of the statute’s enactment in
June 2017 and October 1, 2017, and is required, on a continuing
basis, to issue additional licenses as the number of registered
qualifying patients increases. § 381.986(8)(a)1.-4. Specifically,
section 381.986(8)(a) provides for the issuance of licenses to all
existing dispensing organizations plus ten other entities and further
provides for an expanding number of licenses, in increments of four
per 100,000 qualifying patients. § 381.986(8)(a)1.-4.
2. Florigrown concedes that the Legislature has the authority
to impose a cap but argues that the chosen cap is unreasonable,
without providing any standard for this Court to determine what
would be reasonable under the Amendment’s language.
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When the trial court issued the temporary injunction in this
case, fourteen entities had been licensed as MMTCs, at least seven
more licenses were to become available upon completion of ongoing
rulemaking, and the statute provided for even more licenses to
become available as the patient population increased. When
enacted, the statute limited the number of dispensing facilities each
entity could operate, providing a limit of twenty-five per MMTC and
a limit within that twenty-five of how many dispensing facilities
each MMTC could operate in each of five regions of the state. §
381.986(8)(a)5.a. However, the statute provided for an expanding
number of facilities in increments of five additional facilities per
MMTC each time the patient population reached an additional
100,000 patients. Id. Further, as planned from the outset by the
terms of the statute, the limitation on the number of dispensing
facilities MMTCs are permitted to operate expired on April 1, 2020.
§ 381.986(8)(a)5.d. There is now no limit. Id.
In addition to operating an unlimited number of dispensing
facilities as of April 1, 2020, MMTCs are permitted to deliver
medical marijuana to qualifying patients. § 381.986(8)(g). There
also is no limit, and there has not been a limit, on the size of a
- 26 -
dispensing facility or on the amount of medical marijuana each
MMTC may produce and sell.
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.
In an attempt to support the ruling, Florigrown points out
sixteen affidavits it submitted to the trial court, in which qualifying
patients attested to difficulties in finding the products they need,
high prices when they do find the products they need, and lack of
knowledge and professionalism in MMTC employees they have dealt
with. These affidavits are not competent, substantial evidence that
medical marijuana is not available in this state, even when viewed
- 27 -
in light of testimony by Florigrown’s witnesses that the troubles
revealed in these affidavits are consistent with what they have seen
in other vertically integrated markets. 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.
Florigrown also asserts, as support for the trial court’s finding,
that the Department has found that Florida needs 1,993 MMTCs to
serve its population of qualifying patients. However, 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. The Department arrived at this figure based on an
extrapolation from the number of facilities operating in Colorado’s
horizontal medical marijuana market, and in reaching this figure,
the Department assumed a total patient population in Florida of
440,552. In contrast, at the time of the hearing conducted on
- 28 -
Florigrown’s motion for a temporary injunction, the registry of
qualified patients had just crossed the 100,000-patient threshold.
Furthermore, the number 1,993 is not the Department’s
determination of the minimum number of facilities the state must
have to adequately serve the needs of qualifying patients, but of the
number of facilities the Department expected the state to have after
implementation of the Amendment based on Colorado’s experience
with medical marijuana. For these reasons, the 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.
Finally, Florigrown and its amici curiae assert that many
current MMTC licensees are not producing medical marijuana and
- 29 -
that others have sold their licenses for exorbitant amounts of
money, some without having produced or sold any marijuana.
However, 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.
For these reasons, we conclude that Florigrown does not have
a substantial likelihood of success on the merits of its challenge to
the statutory caps.
Special-Law Challenge
Florigrown’s last claim on the merits is that subparagraph 1,
sub-subparagraph 2.a, and subparagraph 3 of section 381.986(8)(a)
are unconstitutional under article III, section 11(a)(12) of the
Florida Constitution because they are special laws granting
privileges to private corporations. The trial court found that
Florigrown has a substantial likelihood of success on the merits of
these claims. Again, we disagree.
The statutory provisions that Florigrown challenges as special
laws granting privileges to private corporations are the following:
- 30 -
1. As soon as practicable, but no later than July 3,
2017, the department shall license as a medical
marijuana treatment center any entity that holds an
active, unrestricted license to cultivate, process,
transport, and dispense low-THC cannabis, medical
cannabis, and cannabis delivery devices, under former s.
381.986, Florida Statutes 2016, before July 1, 2017, and
which meets the requirements of this section. . . .
2. The department shall license as medical
marijuana treatment centers 10 applicants that meet the
requirements of this section, under the following
parameters:
a. As soon as practicable, but no later than August
1, 2017, the department shall license any applicant
whose application was reviewed, evaluated, and scored
by the department and which was denied a dispensing
organization license by the department under former s.
381.986, Florida Statutes 2014; which had one or more
administrative or judicial challenges pending as of
January 1, 2017, or had a final ranking within one point
of the highest final ranking in its region under former s.
381.986, Florida Statutes 2014; which meets the
requirements of this section; and which provides
documentation to the department that it has the existing
infrastructure and technical and technological ability to
begin cultivating marijuana within 30 days after
registration as a medical marijuana treatment center.
....
c. As soon as practicable, but no later than October
3, 2017, the department shall license applicants that
meet the requirements of this section in sufficient
numbers to result in 10 total licenses issued under this
subparagraph, while accounting for the number of
licenses issued under sub-subparagraphs a. and b.
3. For up to two of the licenses issued under
subparagraph 2., the department shall give preference to
- 31 -
applicants that demonstrate in their applications that
they own one or more facilities that are, or were, used for
the canning, concentrating, or otherwise processing of
citrus fruit or citrus molasses and will use or convert the
facility or facilities for the processing of marijuana.
§ 381.986(8)(a).
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.” Thus, to violate this provision, a
statute must have two features: (1) it must be either a special law or
a general law of local application, and (2) it must grant a privilege to
a private corporation. We conclude that the challenged provisions
are parts of a general law implementing a statewide regulatory
scheme and, accordingly, do not violate article III, section 11(a)(12)
of the Florida Constitution.
The Florida Constitution defines “special law” as “a special or
local law.” Art. X, § 12(g), Fla. Const. 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.” State ex rel. Landis v. Harris, 163 So. 237, 240
- 32 -
(Fla. 1934) (citation omitted). Additionally, in consideration of the
constitutional requirement that a special law not be passed without
either notice or a referendum, see art. III, § 10, Fla. Const., this
Court has made the following observation:
The terms “special or local laws” as used in the
Constitution refer ordinarily to law relating to entities,
interests, rights, and functions other than those of the
State since the organic law does not contemplate or
require previous publication of notice of proposed laws
for the exercise of State powers and functions though
they may be more or less local or special in their
operations or objects.
State ex rel. Gray v. Stoutamire, 179 So. 730, 733 (Fla. 1938).
A law that addresses state interests and operates to protect
those interests using valid classifications “based upon proper
differences which are inherent in or peculiar to the class[es]” is a
general law. Schrader v. Fla. Keys Aqueduct Auth., 840 So. 2d
1050, 1055 (Fla. 2003) (citing Dep’t of Legal Affairs v. Sanford-
Orlando Kennel Club, Inc., 434 So. 2d 879, 881 (Fla. 1983)); see also
Fla. Dep’t of Bus. & Prof’l Regulation v. Gulfstream Park Racing
Ass’n, Inc., 967 So. 2d 802, 806 (Fla. 2007). 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
- 33 -
statewide purpose. See R.J. Reynolds Tobacco Co. v. Hall, 67 So. 3d
1084, 1090-92 (Fla. 1st DCA 2011) (finding a law general where it
applied to five tobacco companies in such a way as to protect funds
used for statewide programs). The law at issue here appears to
satisfy these criteria, and Florigrown has no substantial likelihood
of proving otherwise.
Florigrown contends that the challenged provisions constitute
special laws because they operate on closed classes. Indeed, we
have often held that the closed nature of a class affected by a
particular law indicated that the law was special. E.g., Ocala
Breeders’ Sales Co. v. Fla. Gaming Ctrs., Inc., 793 So. 2d 899, 901
(Fla. 2001) (holding that a statute was a special law because it
“created an impenetrable barrier to all intertrack wagering
applicants except [one]”); Dep’t of Bus. Regulation v. Classic Mile,
Inc., 541 So. 2d 1155, 1159 (Fla. 1989) (“In determining if a
reasonable relationship exists [between the statute’s purpose and
the classification it uses], ‘[t]he fact that matters is that the
classification is potentially open to other tracks.’ ” (quoting Sanford-
Orlando Kennel Club, 434 So. 2d at 882). However, we have not
held that every statute operating on a closed class constitutes a
- 34 -
special law. See, e.g., Schrader, 840 So. 2d at 1056 (upholding a
law that operated only in Monroe County but served to protect a
“vital natural resource” of the entire state); State v. Fla. State
Turnpike Auth., 80 So. 2d 337, 343-44 (Fla. 1955) (upholding as
general a law establishing the Florida State Turnpike Authority).
Regardless, we conclude that the statute at issue 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,” Sanford-Orlando Kennel Club, 434 So. 2d
at 881, making it a general law. Florigrown’s contrary argument is
based on a myopic view of the subparagraphs and sub-
subparagraph that it pulls out of the entire statutory scheme and
fails to read the statute as a whole.
Read as a whole, and in light of the constitutional imperative
for medical marijuana to be made available in a safe manner within
nine months, the statute creates a licensure scheme designed to
ensure regulated access to medical marijuana throughout the state
within a short time frame, as contemplated by the Amendment. See
art. X, § 29(d)(2), Fla. Const. (requiring the Department to begin
- 35 -
registering MMTCS and issuing patient and caregiver identification
cards within nine months). The statute does so by giving
essentially immediate licensure to each licensed dispensing
organization—which are spread across five regions encompassing
the entire state—as long as those entities meet the current
statutory criteria governing MMTCs. § 381.986(8)(a)1. (requiring
licensure of dispensing organizations that meet the statutory
criteria); § 381.986(5)(b), Fla. Stat. (2014) (requiring the Department
to authorize the establishment of one dispensing organization in
each of five regions in the state, consisting of the northwest,
northeast, central, southeast, and southwest). Those licenses had
to be issued by July 3, 2017. § 381.986(8)(a)1. The statute also
required the licensure by August 1, 2017, of certain other entities
that had already been through the application process for becoming
dispensing organizations—as long as those entities met the
statutory criteria governing MMTCs and provided “documentation . .
. that [they had] the existing infrastructure and technical and
technological ability to begin cultivating marijuana within 30 days
after registration.” § 381.986(8)(a)2.a. These provisions essentially
- 36 -
“grandfather” the dispensing organizations and prior applicants into
the current licensure scheme.
This grandfathering is accomplished with valid classifications
that bear a “reasonable relation to the subject matter” of the
statute. See Sanford-Orlando Kennel Club, 434 So. 2d at 881.
Namely, these classifications describe entities that had already been
engaged in, or had made a substantial effort to be engaged in, the
pre-Amendment medical marijuana industry in Florida. They were
applicants who were more likely than most to be prepared to join
the industry efficiently, and they were applicants the Department
was already familiar with.
The grandfathering provisions of section 381.986(8) are
analogous to the statute upheld as a general law in St. Johns River
Water Management District v. Deseret Ranches of Florida, Inc., 421
So. 2d 1067, 1069 (Fla. 1982). That statute, read in isolation,
applied to a limited geographical area of the state. Id. at 1067-68.
It was nevertheless a general law because it was one part of a
statewide system of water management contained within the Florida
Statutes. Id. at 1068-69. Thus, focusing on one statute within a
chapter of the Florida Statutes addressing a comprehensive
- 37 -
legislative scheme was an improper approach to the question of
whether a law was special or general. See id.Similarly, when analyzing whether a law is special or general,
it is improper to isolate subparagraphs of a statutory section
embodying a broad regulatory scheme. The provisions of section
381.986 requiring the MMTC licensure of all dispensing
organizations and certain prior applicants for dispensing-
organization licensure—specifically, subparagraph (a)1. and sub-
subparagraph (a)2.a.—are components of a statewide system of
medical-marijuana management. As in St. Johns River Water
Management District, those provisions, though limited in direct
application, “materially affect[] the people of the state” as part of a
comprehensive approach to a statewide concern. 421 So. 2d at
1069.
Importantly, the 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
- 38 -
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. Cf. City
of Coral Gables v. Crandon, 25 So. 2d 1, 2-3 (Fla. 1946) (holding
that a law was not special where it was applicable to only one
county when it was enacted but where other counties were expected
to meet the criteria to join the class in the future); Classic Mile, 541
So. 2d at 1158 n.4 (finding a law special because its “classification
scheme . . . [was] fixed so as to preclude additional parties from
satisfying the requirements for inclusion within the statutory
classification at some future point in time”).
- 39 -
Thus far in our special-law analysis, we have addressed only
two of the three challenged provisions. In addition to challenging
the grandfathering provisions of section 381.986(8)(a)1. and 2.a.,
Florigrown challenges section 381.986(8)(a)3., which provides a
licensure preference to an open class of entities that intend to
convert a citrus-processing facility into a marijuana-processing
facility. The basis for this classification in relation to the purpose of
the statute is unclear. However, even assuming (without deciding)
that this portion of the statute does not operate on a valid
classification and that its existence within a broader scheme
allowing the licensure of an ever-expanding open class does not
defeat Florigrown’s challenge, we conclude that this
subclassification itself is open. 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. Cf. Knight v. Bd. of Pub.
Instr. for Hillsborough Cty., 136 So. 631, 631 (Fla. 1931). Therefore,
we have no reason to believe this portion of the statute, even if
- 40 -
properly viewed in isolation, is a special law enacted in the guise of
a general law. 3
For the foregoing reasons, we hold that Florigrown does not
have a substantial likelihood of success on the merits of its
constitutional challenge to section 381.986(8)(a)1, 2.a., and 3. as
special laws granting privileges to private corporations in violation
of article III, section 11(a)(12) of the Florida Constitution.
CONCLUSION
Florigrown does not have a substantial likelihood of success
on the merits of its constitutional challenges to section 381.986(8).
Accordingly, Florigrown’s request for a temporary injunction should
have been denied. We quash the First District’s decision and
remand this case to the First District with instructions to further
remand to the trial court for vacation of the temporary injunction.
3. We understand that the citrus preference is the subject of
separate litigation. Accordingly, we note that this opinion is not
intended to announce a final conclusion on whether the citrus
preference is an invalid special law or has any other constitutional
infirmities. Our conclusions as to the citrus preference, like all of
our conclusions on the merits of Florigrown’s claims, should be
understood as limited to the point that Florigrown has not
established a substantial likelihood of success on the merits of its
claims, based on the arguments and evidence presented in this
proceeding.
- 41 -
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LAWSON, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LAWSON, J., concurring in part and dissenting in part.
I agree with the majority’s conclusions that Florigrown has not
demonstrated a substantial likelihood of success on the merits as to
its arguments (1) that section 381.986(8)’s vertical-integration
requirement conflicts with the 2016 medical marijuana amendment
added to the Florida Constitution as article X, section 29 (the
Amendment); and (2) that section 381.986(8)’s caps on the number
of MMTC licenses available conflicts with the Amendment. Unlike
the majority, however, I conclude that Florigrown has demonstrated
a substantial likelihood of success on the merits of its challenge to
section 381.986(8)(a)1. and 2.a. as special laws granting privileges
to private corporations in violation of article III, section 11(a)(12) of
the Florida Constitution.
As stated by the majority, a violation of article III, section
11(a)(12) has two components: (1) the law is a special law or a
- 42 -
general law of local application; and (2) the law grants a privilege to
a private corporation. The latter inquiry is straightforward in this
case. A privilege is a “right,” “benefit,” or “advantage.” Lawnwood
Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 512 (Fla. 2008). The
provisions in question, section 381.986(8)(a)1. and 2.a., grant
certain private corporations—described so precisely that they might
as well be named in the statute—the right to MMTC licensure
without entering the competition that others must enter for a
statutorily capped number of licenses. Because the law grants this
clear benefit to these private corporations, it violates the Florida
Constitution unless it can be properly construed as a general law.
Our case law firmly establishes that, with limited exceptions
not applicable here but discussed below, a statute that operates on
a closed class is a special law. Fla. Dep’t of Bus. & Prof’l Reg. v.
Gulfstream Park Racing Ass’n, Inc., 967 So. 2d 802, 809 (Fla. 2007)
(recognizing that a statute prohibiting intertrack wagering by
certain pari-mutuel wagering permitholders applied the prohibition
based on conditions that had no reasonable possibility of ever
applying outside a small, specific area of the state and that, as a
result, the statute was a special law); St. Vincent’s Med. Ctr., Inc. v.
- 43 -
Mem’l Healthcare Grp., Inc., 967 So. 2d 794, 802 (Fla. 2007)
(holding that a statute providing an exemption for hospitals meeting
certain criteria was a special law because it applied to only one
hospital and could not reasonably be expected to apply to others in
the future); Ocala Breeders’ Sales Co. v. Fla. Gaming Ctrs., Inc., 793
So. 2d 899, 901 (Fla. 2001) (holding that a statute was a special law
because it “created an impenetrable barrier to all intertrack
wagering applicants except [one]”); Dep’t of Bus. Reg. v. Classic Mile,
Inc., 541 So. 2d 1155, 1159 (Fla. 1989) (“In determining if a
reasonable relationship exists [between the statute’s purpose and
the classification it uses], ‘[t]he fact that matters is that the
classification is potentially open to other tracks.’ ” (quoting Dep’t of
Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So. 2d 879,
882 (Fla. 1983)); cf. City of Coral Gables v. Crandon, 25 So. 2d 1, 2-
3 (Fla. 1946) (holding that a statute that applied to any county with
a population greater than 260,000 was not a special law even
though it applied to only one county at the time of enactment,
where other counties were rapidly approaching that population
size). This clear principle of law makes sense.
- 44 -
The use of a closed class in a statute is “no different” from
identifying the entities to which it applies by name, and that makes
the statute a special law under a definition this Court has used
since at least the early 20th century, in that the law “relate[s] to, or
[is] designed to operate upon, particular persons or things.” City of
Miami v. McGrath, 824 So. 2d 143, 148 (Fla. 2002) (quoting State ex
rel. Landis v. Harris, 163 So. 237, 240 (Fla. 1934)). There has been
no request for us to reconsider this precedent, and the majority
does not say it is doing so. Indeed, this precedent is firmly
embedded in our law, existing as it has for almost a century, even
while the constitution has undergone numerous revisions without
any that undermine this understanding of what a special law is. Cf.
City of Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000)
(explaining that, when adopting a new version of a law, the
Legislature is presumed to know the prior judicial constructions of
it and to have adopted those constructions unless a contrary
intention is expressed).
Neither the claimed existence of a reasonable relation between
the statute’s purpose and the closed class nor the operation of the
broader statute throughout the state is sufficient in itself to change
- 45 -
the character of a statute from special to general when the statute
operates on a closed class. See Classic Mile, 541 So. 2d at 1159(explaining that the “fact that matters” in determining whether a
reasonable relationship exists and, thus, whether the law is a
special law is whether it creates an open or a closed class) (quoting
Sanford-Orlando, 434 So. 2d at 882). Nor is the combination of
these two attributes. And, neither any participant in this case nor
the majority has cited any precedent of this Court to the contrary.
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. For
example, this Court has relied on the reasonable relationship, or
lack thereof, between a classification and the purpose of a statute to
show why a statute constituted a special law despite the theoretical
openness of its classification scheme. Knight v. Bd. of Pub.
Instruction for Hillsborough Cnty., 136 So. 631, 631-32 (Fla. 1931).
This Court has also cited the reasonable relation between an open
classification and the purpose of a statute to support the point that
a statute was a general law. See Sanford-Orlando, 434 So. 2d at
881-82 (holding, after finding that a reasonable relationship existed
- 46 -
between the classification in the statute and the classification it
adopted, that the “controlling point” driving this Court’s
determination that the statute at issue was not a special law was
that the classification at issue was “open and ha[d] the potential of
applying to other[s]”); Biscayne Kennel Club, Inc. v. Fla. State Racing
Comm’n, 165 So. 2d 762, 763 (Fla. 1964) (holding that an act
granting licenses for harness racing was a general law “[b]ecause all
of the classifications effected by this act [were] made on the basis of
factors which [were] potentially applicable to others and which
[were] not purely arbitrary in relation to the subject regulated or the
conduct authorized”). 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. 4
4. The First District reached such a holding in R.J. Reynolds
Tobacco Co. v. Hall, 67 So. 3d 1084 (Fla. 1st DCA 2011), but in so
doing, the First District ignored that the statute gave a benefit to a
closed class, focusing instead on a separate, open class, affected by
the statute.
- 47 -
Such a holding would nullify the constitutional prohibition
against enacting special laws without following the specific
procedural requirements applicable to them, see art. III, § 10, Fla.
Const., because the Legislature is already independently precluded
from creating arbitrary classifications, as a matter of equal
protection, see Jackson v. State, 191 So. 3d 423, 426 (Fla. 2016).
This Court’s precedent instructs that a classification generally must
be both open and reasonable in relation to the statute’s purpose for
the law to be considered general. See Sanford-Orlando, 434 So. 2d
at 881-82; Biscayne Kennel Club, 165 So. 2d at 764; see also
License Acquisitions, LLC v. DeBary Real Estate Holdings, LLC, 155
So. 3d 1137, 1143 (Fla. 2014). The exception to this rule exists in
cases addressing statutes that perform essential state functions
and operate on the basis of closed classes of public property or
geographic locations in such a way as to have a statewide effect.
See, e.g., Schrader v. Fla. Keys Aqueduct Auth., 840 So. 2d 1050,
1056 (Fla. 2003) (statute protecting nearshore waters of the Florida
Keys); St. Johns River Water Mgmt. Dist. v. Deseret Ranches of Fla.,
Inc., 421 So. 2d 1067, 1069 (Fla. 1982) (statute creating a water
management district as part of a comprehensive scheme); State v.
- 48 -
Fla. State Turnpike Auth., 80 So. 2d 337, 343-44 (Fla. 1955) (statute
creating the Florida State Turnpike Authority to establish the
turnpike in a limited geographic area); Cantwell v. St. Petersburg
Port Auth., 21 So. 2d 139, 140 (Fla. 1945) (statute authorizing the
Railroad Commission to grant franchises for the construction of
bridges and operation of ferries and similar enterprises for travel
over and through waters connected to the Gulf of Mexico).
We have explained that a law is a general law despite its
limited direct application if it pertains to state property, such as
state buildings, lands, funds, and other “absolute property.” State
ex rel. Gray v. Stoutamire, 179 So. 730, 733 (Fla. 1938). And, we
have expressly recognized the following rule pertaining to cases
involving the protection of vital natural resources or the
construction of basic infrastructure affecting travel and tourism
throughout the state: “[I]f a law utilizes a classification that is
geographical in its terms but the purpose of the statute is one of
statewide importance and impact, and the classification is
reasonably related to the law’s purpose, it is a valid general law.”
Schrader, 840 So. 2d at 1056; see Fla. State Turnpike Auth., 80 So.
2d at 343-44; Cantwell, 21 So. 2d at 140. The reason such laws are
- 49 -
general even though they operate on closed classes is that the
closed classes themselves consist of aspects of the very fabric of the
state, not “particular persons or things.” Landis, 163 So. at 240.
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. Cf. Classic Mile, 541 So. 2d
at 1159 (rejecting the argument that a pari-mutuel wagering statute
was general despite its use of a closed class extending to a single
county because it was “part of the overall statewide regulatory
scheme for the parimutuel industry” and would generate revenue
for the state); St. Vincent’s Med. Ctr., 967 So. 2d at 801-02 (holding
that a law granting a licensure exemption to a hospital was a
special law because it applied to a closed class of one hospital).
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
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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. See DeBary Real Estate Holdings, LLC
v. State Dep’t of Bus. & Prof’l Regulation, 112 So. 3d 157, 165 (Fla.
1st DCA 2013), rev’d on other grounds sub nom. License Acquisitions
v. Debary Real Estate Holdings, 155 So. 3d 1137, 1143-5 (Fla.
2014). 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).
In addition, I note that the Department claimed at oral
argument that the class is not closed because any entity can sell its
license once the license is obtained. The idea is that anyone can
effectively join the classes established by section 381.986(8)(a)1.
and 2.a. by purchasing a license from one of the entities that
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obtained their licenses under those provisions. This argument, of
course, does not show that the classes created by section
381.986(8)(a)1. and 2.a. are open. It only underscores that the
privilege those classes have been granted—access to a limited
number of licenses to sell an unlimited amount of marijuana—is a
valuable commodity.
In sum, I conclude that Florigrown has a substantial
likelihood of success on the merits of its claims that section
381.986(8)(a)1. and 2.a. constitute special laws. It is undisputed
that these provisions give specific, identifiable entities who
participated in the dispensing organization application process the
opportunity for licensure without competition and that no other
entities can qualify for the licenses designated for these entities.
Therefore, Florigrown is likely to succeed on its claim that these
provisions are invalid as special laws, enacted in the guise of a
general law, that grant privileges to private corporations.
Application for Review of the Decision of the District Court of Appeal
– Certified Great Public Importance
First District - Case No. 1D18-4471
(Leon County)
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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,
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Amicus Curiae Liner Source, Inc.
Jeff Kottkamp of Jeff Kottkamp, P.A., Tallahassee, Florida,
Amicus Curiae Triangle Capital, Inc.
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