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

• Court: Supreme Court of Florida
• Decided: May 27, 2021
• Docket: SC19-1464
• Status: Published

Opinion

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

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

with Florigrown as to each argument and entered a temporary

injunction.

-2- 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

system for providing access to marijuana for certain patients

suffering from debilitating medical conditions. Art. X, § 29, Fla.

-3- 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

-4- 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).

-5- 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),

-6- 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. . . .

-7- 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

-8- 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

-9- 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

- 10 - 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

- 11 - 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

- 12 - 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,

- 13 - 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.

- 14 - 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

- 15 - 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.

- 16 - 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

- 17 - 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:

- 18 - 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

- 19 - 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

- 20 - 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

- 21 - 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

- 22 - 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

- 23 - 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

- 24 - 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.

- 25 - 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 804, 809

(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

- 50 - 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

- 51 - 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)

- 52 - 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,

- 53 - Amicus Curiae Liner Source, Inc.

Jeff Kottkamp of Jeff Kottkamp, P.A., Tallahassee, Florida,

Amicus Curiae Triangle Capital, Inc.

- 54 -