FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-4471

_____________________________

FLORIDA DEPARTMENT OF 

HEALTH, OFFICE OF MEDICAL 

MARIJUANA USE, COURTNEY 

COPPOLA, in her official capacity 

as Director of the Office of 

Medical Marijuana Use, SCOTT 

RIVKEES, M.D., in his official 

capacity as State Surgeon 

General and Secretary of the 

Florida Department of Health, 

and THE STATE OF FLORIDA,

Appellants,

v.

FLORIGROWN, LLC, a Florida 

limited liability company and 

VOICE OF FREEDOM, INC., d/b/a

Florigrown,

Appellees.

_____________________________

On appeal from the Circuit Court for Leon County.

Charles W. Dodson, Judge.

August 27, 2019

ON MOTION FOR CERTIFICATION

PER CURIAM.
2

The panel grants the motion for certified question. We 

determine that the following question proposed by appellant is one 

of great public importance:

WHETHER THE PLAINTIFFS HAVE DEMONSTRATED A 

SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS OF 

THEIR CLAIMS THAT THE STATUTORY REQUIREMENTS OF 

VERTICAL INTEGRATION AND CAPS ON THE NUMBER OF 

MEDICAL MARIJUANA TREATMENT CENTER LICENSES AS SET 

FORTH IN SECTION 381.986(8), FLORIDA STATUTES, ARE IN 

DIRECT CONFLICT WITH ARTICLE X, SECTION 29, OF THE 

FLORIDA CONSTITUTION?

WOLF, MAKAR, and JAY, JJ., concur.

ON MOTION FOR REHEARING EN BANC

On the motion of a party, a judge in regular active service on 

the Court requested that a vote be taken on the motion in 

accordance with Florida Rule of Appellate Procedure 9.331(d)(1).

All judges in regular active service that have not been recused

voted on the motion. Less than a majority of those judges voted in 

favor of rehearing en banc. Accordingly, the motion for rehearing 

en banc is denied. 

WOLF, LEWIS, MAKAR, and BILBREY, JJ., concur.

MAKAR, J, concurs with written opinion.

B.L. THOMAS, OSTERHAUS, JAY, and M.K. THOMAS, JJ., dissent.

B.L. THOMAS, J., dissents with written opinion.

RAY, C.J., and ROBERTS, ROWE, KELSEY, and WINOKUR, JJ., 

recused.

_____________________________

MAKAR, J., concurring in the denial of rehearing en banc. 
3

Florida’s constitution grants the ultimate power to decide 

state policy to the people, who have chosen by citizens’ initiative1

to constitutionalize “Medical marijuana production, possession 

and use.” Art. X, § 29, Fla. Const.; see id. art. XI, § 5(e) (providing 

that proposals to change the state constitution must be approved 

by sixty percent vote of the electors). In doing so, the people have 

in large measure elbowed out the legislative branch as the arbiter 

of medical marijuana policy by giving the Department of Health 

the compulsory and detailed authority to “issue reasonable 

regulations necessary for the implementation and enforcement” of 

the medical marijuana amendment to “ensure the availability and 

safe use of medical marijuana by qualifying patients.” Id. art. X, 

§ 29(d) (“Duties of the Department”).

A subset of the Department’s constitutional duties is to 

oversee all entities involved in the production and distribution of 

marijuana for medical use in Florida. Dubbed Medical Marijuana 

Treatment Centers (MMTCs), these include any:

entity that acquires, cultivates, possesses, processes 

(including development of related products such as food, 

tinctures, aerosols, oils, or ointments), transfers, 

transports, sells, distributes, dispenses, or administers 

marijuana, products containing marijuana, related 

supplies, or educational materials to qualifying patients 

or their caregivers and is registered by the Department.

Id. § 29(b)(5) (emphasis added). The constitution requires that the 

Department establish “[p]rocedures for the registration of MMTCs 

that include procedures for the issuance, renewal, suspension and 

revocation of registration, and standards to ensure proper 

 1 See P.K. Jameson & Marsha Hosack, Citizen Initiatives in

Florida: An Analysis of Florida's Constitutional Initiative Process,

Issues, and Alternatives, 23 FLA. ST. U. L. REV. 417, 418 (1995) 

(“Initiatives generally allow the public to bypass the legislature 

and reserve direct lawmaking power in the voters of the state. 

Citizens propose constitutional amendments by initiative, and the 

general electorate adopts or rejects the proposed amendment at 

the polls.”). 
4

security, record keeping, testing, labeling, inspection, and safety.” 

Id. § 29(d)(1)c. (emphasis added).

As the highlighted language makes obvious, the people have 

lodged wide-ranging power and control in the Department’s hands 

to set substantive standards for regulating MMTCs that protect 

the public by ensuring the security, safety and testing/inspection 

of medical marijuana production, possession and use in Florida. 

This constitutional authority is presumptively self-executing. Fla.

Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 486 (Fla. 2008)

(noting that “modern doctrine favors the presumption 

that constitutional provisions are intended to be self-operating.”) 

(citation omitted).2 It requires no legislative action because it 

effects an immediate change in the law governing access to medical 

marijuana, establishes a detailed regulatory regime with 

definitions of key terms, and sets forth in reasonable detail the 

means for accomplishing its purpose without the need of 

legislation. Id. (“The amendment's language makes evident that it 

was intended to effect an immediate change in the law governing 

access to medical records without the need for legislative action.”).

The Department’s constitutional authority over medical 

marijuana production, possession and use does not entirely 

displace the legislature’s role. That’s because the amendment does 

not “limit the legislature from enacting laws consistent with this 

section.” Art. X, § 29(e) (emphasis added).3 Our constitution 

envisioned this type of inter-branch power-sharing arrangement 

by saying that the “powers of the state government shall be divided 

into legislative, executive and judicial branches. No person 

 2 The reason for the presumption is that in its absence “the 

legislature would have the power to nullify the will of the people 

expressed in their constitution, the most sacrosanct of all 

expressions of the people.” Buster, 984 So. 2d at 486 (quoting Gray

v. Bryant, 125 So. 2d 846, 851 (Fla. 1960)).

3 Of course, “simply because the right conferred by 

the amendment could be supplemented by legislation does not 

prevent the provision from being self-executing.” Buster, 984 So. 

2d at 486.
5

belonging to one branch shall exercise any powers appertaining to 

either of the other branches unless expressly provided herein.” Art. 

II, § 3, Fla. Const. (emphasis added). The people–not our judicial 

panel—expressly granted to the executive branch (i.e., the 

Department of Health) a defined portion of what would otherwise 

have been the Legislature’s plenary power to establish statewide 

medical marijuana policy, leaving room for limited legislation that 

is consistent with the amendment itself. The people, by limiting 

the legislative branch’s policy-making role power over medical 

marijuana, have not done “exceptional violence” to their own right 

to petition the legislature for gap-filling, harmonious legislation; 

instead, the people have bypassed the legislature, directed the 

Department to implement their political will, art. I, § 1, Fla. Const.

(“All political power is inherent in the people.”), and corralled 

legislative power by limiting it to only “consistent” enactments 

(which is unsurprising given the potential for wayward legislation 

to frustrate the people’s will), Gray, 125 So. 2d at 852 (“We have 

no reason to believe, and we do not intend to imply, that the 

legislature will not always follow the dictates of [the constitutional 

provision at issue],” but noting the possibility that a legislature 

might “fail to act in accordance with the [provision]” and thereby 

“frustrate the people's will.”).

In light of the amendment’s language and structure, the 

paramount question in this case—the only one that both parties 

urge that we answer—is whether legislation that limits 

registration to only MMTCs that are fully vertically-integrated is 

inconsistent with the amendment’s language. The original panel 

unanimously agreed that section 381.986(8)(e), Florida Statutes, 

which requires full vertical integration, directly conflicts with the 

language in article X, section 29(b)(5). The former says that an 

MMTC “shall cultivate, process, transport, and dispense 

marijuana for medical use,” while the later contrarily says that an 

MMTC is an entity that “acquires, cultivates, possesses, processes 

. . ., transfers, transports, sells, distributes, dispenses, or

administers” medical marijuana. The power of the legislature does 

not include rewriting clear language in the constitution, 

transforming a disjunctive “or” into a conjunctive “and.” The 

reason is that the use of “the word ‘or’ is usually, if not always, 

construed judicially as a disjunctive,” the rare exception being 

where it is “necessary” to conform to the “clear intention” of its 
6

drafters. Pompano Horse Club, Inc. v. State, 111 So. 801, 805 (Fla. 

1927); see also Telophase Soc’y of Fla., Inc. v. State Bd. of Funeral

Dirs. & Embalmers, 334 So. 2d 563, 565, 566–67 (Fla. 1976)

(upholding disjunctive use of “or” where statute defined “funeral 

directing” as the “profession of directing or supervising funerals for 

profit, or the profession of preparing dead human bodies for burial 

or cremation by means other than embalming, or the disposition 

or shipping of dead human bodies, or the provision or maintenance 

of a place for the preparation of dead human bodies.”); Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 116 (2012) (“The conjunctions and and or are two of 

the elemental words in the English language. Under the 

conjunctive/disjunctive canon, and combines items while or creates 

alternatives. Competent users of the language rarely hesitate over 

their meaning.”).

No evidence exists that the people via the elemental language 

of the medical marijuana amendment clearly intended a market 

limited to only a few fully vertically-integrated medical marijuana 

companies. Indeed, one looks in vain for any modern American 

commodities industry in which all sellers are fully-vertically 

integrated; partial vertical integration is common, but not the type 

of seed-to-store structure that section 381.986(8)(e) requires of all 

MMTCs. For this reason, the legislature cannot force every MMTC 

seeking registration to grow marijuana and then cultivate, 

process, package, transport, distribute, sell, and dispense medical 

marijuana. Prior to passage of the medical marijuana amendment 

it could advance such a market policy, but doing so now is 

inconsistent with the amendment’s clear language to the contrary.

Because section 381.986(8)(e) so clearly conflicts with the 

constitution, en banc review is unwarranted and would serve only 

to further delay the inevitable, which is to allow for our supreme 

court to weigh in and definitively pass upon the matter, which the 

panel has promptly accommodated. The parties have signaled the 

importance of having the merits of the legal issue addressed, the 
7

state moving for certification of one question on only that point of 

law,4 which the panel has granted.

Until supreme court review occurs, the existing legislativelyestablished oligopolistic vertically-integrated market structure 

will remain operative due to all but certain stays of the trial court’s 

and this Court’s decisions. Even if the supreme court denies 

review, and the panel opinion becomes operative, no floodgates will 

open that threaten ruination on society—akin to Reefer Madness—

as might be feared.5 Properly regulated, medical marijuana serves 

an important public health goal in accord with the intent of a 

super-majority of Florida’s voters. Remember, the people gave the 

 4 The only certified question sought by the Department of 

Health, which was approved by the panel, is:

Whether the plaintiffs have demonstrated a 

substantial likelihood of success on the merits of their 

claims that the statutory requirements of vertical 

integration and caps on the number of medical marijuana 

treatment center licenses as set forth in section 

381.986(8), Florida Statutes, are in direct conflict with 

Article X, section 29, of the Florida Constitution?

5 This case is about medical marijuana, not the dangers of 

unrestricted recreational use highlighted in the 1936 film. See

Reefer Madness, WIKIPEDIA, 

https://en.wikipedia.org/wiki/Reefer_Madness (last visited August 

22, 2019). That said, marijuana law and policy is a deeply serious 

subject upon which profound questions remain. See generally

Robert A. Mikos, Marijuana Law, Policy, and Authority 6 (2017) 

(“Given all the reasons to care about marijuana law and policy, 

policymakers face a host of questions about how they should 

regulate the drug: Is marijuana beneficial? What are its harms? 

Which of those benefits and harms should inform policy decisions? 

Should marijuana be allowed or banned, and if allowed, for whom? 

How can jurisdictions prevent diversion of the drug to nonapproved uses? How do different policies affect the use of 

marijuana and any harms associated with such use? What are the 

costs of competing approaches to regulating marijuana?”).
8

Department broad constitutionally-grounded powers to establish 

“standards to ensure proper security, record keeping, testing, 

labeling, inspection, and safety” in this new industry, a provision 

unaffected by the panel opinion and self-operative without any

legislation. Art. X, § 29(d)(1)c. Had the legislature passed no law, 

the Department’s constitutional mandate to bring about the 

orderly production, possession and use of medical marijuana in 

Florida remained the same. Nothing prevents the Legislature, of 

course, from enacting laws that are consistent with the people’s 

directive.

Importantly, the panel opinion on the merits did nothing other 

than to say that limiting the medical marijuana marketplace to 

only a few vertically-integrated entities conflicts with the language 

of the constitution; no language in the amendment (or ballot 

summary for that matter)6 compels MMTCs to be verticallyintegrated and limited in number. A wide range of regulatory 

approaches remains available, none compelled by the panel’s 

decision, which in no way obliges the Department to register 

street-level drug dealers or dorm-room pot cultivators. Instead, the 

only change will be that a broader and more competitive 

marketplace will develop, one that the Department—as 

supplemented by non-conflicting legislation—will actively 

regulate for the public’s security and safety via its control over 

MMTCs. See Fla. Dep’t of Health v. Florigrown, LLC, 44 Fla. L. 

Weekly D1744 (Fla. 1st DCA July 9, 2019) (“That the portion of the 

statute establishing a vertically-integrated industry structure is 

impermissible doesn't reduce or interfere with the Department of 

Health's ongoing regulatory authority to protect the public 

generally.”) (Makar, J., concurring).

B.L. THOMAS, J., dissenting from the denial of hearing en banc.

 6 In its legal filings, the Department made no mention of the 

amendment’s ballot summary, probably because (a) its language 

does not advance the Department’s position and (b) the language 

of the constitution is what matters in assessing whether a conflict 

exists with section 381.986(8)(e).
9

The Governor, the Florida Department of Health, and four 

judges of this court think the panel opinion in this case is a matter 

of great public importance meriting en banc consideration. But by 

a 4-4 vote,1 this court has decided that the monumental issue of 

whether the Florida Legislature and the Governor have the 

authority to regulate Medical Marijuana Treatment Centers 

(“MMTC”) is not a case of great public importance meriting 

rehearing en banc before the entire court.2 Thus, this court has 

now decided that the rational and careful policies enacted by the 

legislature and approved by the governor to regulate medical 

marijuana are temporarily invalid, despite the specific authority 

under the constitutional provision authorizing the legislative and 

executive branches to regulate medical marijuana under article X, 

section 29 of the Florida Constitution.

I respectfully but vigorously dissent from this court’s decision 

declining to rehear this case en banc. 

The federal government has categorized marijuana as a 

Schedule I drug, meaning it has a high potential for abuse, there 

is no currently accepted medical use of the drug in treatment in the 

United States, and there is a lack of accepted safety for use of the 

drug under medical supervision. 21 U.S.C. § 812(b)(1)A-C, 

Schedule I(c)(10) (emphasis added). As the panel’s dissenting 

opinion stated:

The majority states that the injunction “allows the 

Department a reasonable period of time to exercise its 

duties under the constitutional amendment,” [] but that 

is not how I read the injunction. Indeed, because the 

injunction states that the Department is “immediately” 

 1 Two judges did not participate in the court’s decision to deny 

rehearing en banc, Judges Winsor and Wetherell, having 

previously been confirmed by the United States Senate as United 

States District Judges for the Northern District of Florida. Judge 

Wetherell served on the original panel decision and dissented from 

the majority’s decision to affirm the preliminary injunction issued 

by the circuit judge below. 

2 Five judges of this court recused themselves from 

consideration of this motion for rehearing en banc. 
10

enjoined from registering or licensing MMTCs under the 

legislative scheme in section 381.986, Florida Statutes, it 

appears to me that the injunction will create a regulatory 

vacuum that will need to be immediately filled by an 

entirely new regulatory scheme in order to avoid an 

unregulated marketplace for medical marijuana. 

Fla. Dep’t of Health v. Florigrown, LLC, No. 1D18-4471, 2019 WL 

2943329, at *6 n.4 (Wetherell, J., concurring in part and dissenting 

in part) (emphasis added) (citations omitted).

This is manifestly a case of great public importance as the 

erroneous panel decision will have a profound impact on public 

safety and is in violation of the separation of powers under article 

II, section 3 of the Florida Constitution, because the preliminary 

injunction usurps the constitutional authority of the of the 

legislature, which carefully considered and approved those 

policies, and the governor, who signed this legislation and has 

acted to implement those policies through the Department of 

Health. The concurring opinion further demonstrates this 

violation of the separation of powers by recommending an 

economic model for regulating medical marijuana, which is 

obviously within the sole policy-making authority of the legislative 

branch. (“As such, the public interest is best served, not by 

allowing an unconstitutional market structure to remain in place, 

but to gravitate carefully and expeditiously away from the unlawful 

vertically-integrated oligopoly model to the non-integrated market 

structure the amendment envisions.” (Fla. Dep’t of Health v. 

Florigrown, LLC, No. 1D18-4471, 2019 WL 2943329, at *5 (Makar, 

J., concurring)) (emphasis added)). 

As our supreme court has emphatically stated: “In the final 

analysis, ‘[t]he preservation of the inherent powers of the three 

branches of government, free of encroachment or infringement by 

one upon the other, is essential to the effective operation of our 

constitutional system of government.” Fla. Senate v. Fla. Pub. 

Empl. Council 79, AFSCME, 784 So. 2d 404, 408 (Fla. 2001)

(quoting In re Advisory Opinion to the Governor, 276 So. 2d 25, 30 

(Fla. 1973)).

The amendment at issue requires the Department to adopt 

“[p]rocedures for the issuance, renewal, suspension and revocation 
11

of registration of Medical Marijuana Treatment Centers and 

standards to ensure proper security, record keeping, testing, 

labeling, inspection, and safety.” Art. X, § 29(d)(1)c., Fla. Const. A 

Medical Marijuana Treatment Center is defined in the 

Amendment as “an entity that acquires, cultivates, possesses, 

processes . . . transfers, sells, distributes, dispenses, or administers 

marijuana . . . and is registered by the Department.” Art. X, § 

29(b)(5), Fla. Const. The Amendment unambiguously states that 

“[n]othing in [the Amendment] shall limit the legislature from 

enacting laws consistent with this section.” Art. X, § 29(e), Fla. 

Const. (emphasis added). The statute at issue is “consistent with 

this section” because it properly implements the constitutional 

amendment by correctly limiting the registration of Medical 

Marijuana Treatment Centers. 

Thus, because there is no conflict between the statute and the 

amendment, the Appellees cannot prevail on the merits, the 

injunction is not in the public interest, and there is no “irreparable 

harm” in reversing the injunction. Quite the contrary, the 

preliminary injunction will impose irreparable harm on the public

by injecting chaos and creating an unregulated environment for 

the use and abuse of marijuana. 

The majority decision approving this injunction in part is 

contrary to the public interest, as the dissenting panel opinion 

noted: 

However, I respectfully dissent from the remainder 

of the opinion because, in my view, Appellees failed to 

establish that the portion of the injunction affirmed by 

the majority is in the public interest. . . . The portion of 

the injunction affirmed by the majority will effectively 

mandate an immediate change in the entire structure of 

the medical marijuana industry in Florida. Although such 

a change may ultimately be warranted, the trial court did 

not articulate—and Appellees did not show—how the 

public interest would be served by mandating this change 

through a preliminary injunction. 

Florigrown, LLC, 2019 WL 2943329, at *5-6 (Wetherell, J., 

concurring in part and dissenting in part) (emphasis added) 

(footnote omitted). 
12

The preliminary injunction will result in the increased 

potential for the unregulated use of marijuana, a dangerous drug

which has been shown in numerous studies to present a significant 

harm to both young people and others who may be now permitted 

unfettered access to this drug. See Nora D. Volkow, M.D., Letter 

from the Director, NATIONAL INSTITUTE ON DRUG ABUSE, (July 

2019), https://www.drugabuse.gov/publications/research 

reports/marijuana/letter-director: 

Because marijuana impairs short-term memory and 

judgment and distorts perception, it can impair 

performance in school or at work and make it dangerous 

to drive. It also affects brain systems that are still 

maturing through young adulthood, so regular use by 

teens may have negative and long-lasting effects on their 

cognitive development, putting them at a competitive 

disadvantage and possibly interfering with their wellbeing in other ways. Also, contrary to popular belief, 

marijuana can be addictive, and its use during 

adolescence may make other forms of problem use or 

addiction more likely. Whether smoking or otherwise 

consuming marijuana has therapeutic benefits that 

outweigh its health risks is still an open question that 

science has not resolved.

(Emphasis added). 

Without any proper factual findings or any showing of 

irreparable harm, the circuit court’s preliminary injunction 

invalidates the comprehensive regulation of a controlled 

substance, Section 381.986(8)(a)1, Fla. Stat. (2017). The injunction 

endangers public safety and the physical and mental health of 

adults and children who will now likely have greater access to 

unregulated marijuana use and abuse. The preliminary injunction 

also violates settled law governing a trial court’s authority to grant 

preliminary injunctions, which are an “extraordinary remedy 

which should be granted sparingly.” City of Jacksonville v. Naegele 

Outdoor Advertising Co., 634 So. 2d 750, 752 (Fla. 1st DCA 1994)

(quoting Thompson v. Planning Comm’n, 464 So. 2d 1231 (Fla. 1st 

DCA 1985) (emphasis added)). 
13

As argued by Appellants citing black-letter law, a “trial court 

must determine that (i) the movant is substantially likely to 

succeed on the merits, (ii) irreparable harm absent injunction is 

likely, (iii) an adequate remedy at law is unavailable, and (iv) the 

balance of the public interest favors the injunction.” Id.; see also 

St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So. 3d 728, 731 (Fla. 1st 

DCA 2009) (party seeking a temporary injunction bears the burden 

of providing substantial, competent evidence on each element). 

I agree with Appellants that the trial court’s order is fatally 

flawed “on almost every possible ground.” But the majority opinion 

upholds a significant part of this fatally flawed injunction. This 

Court’s decision denying rehearing en banc compounds that error. 

The trial court’s injunction and this Court’s partial approval 

of the injunction have erroneously decided that any entity that 

engages in any of the defined activities described in the 

amendment may constitute a self-executing Medical Marijuana 

Treatment Center. But a fair reading of the amendment can only 

conclude that a “treatment center” cannot mean that anyone who 

merely “cultivates” marijuana is thereby entitled to demand 

registration under the amendment. 

The contrary holding of the panel opinion approving the 

injunction also conflicts with the rationale of this court’s prior 

decision in Department of Health v. Redner, in which we held that 

a person had no privilege under the amendment to grow his own 

marijuana:

Mr. Redner argues, and the trial court held, that 

because Mr. Redner was a qualified patient, he had the 

right to possess and use marijuana, which included the 

whole growing plant and seeds. He argues the right to 

possess and use the whole growing plant and seeds 

includes the right to cultivate and process his own 

marijuana. This interpretation of section 29 is not 

supported by the plain language of the constitution and 

renders portions of the constitution meaningless. In 

addition, this interpretation ignores the detailed 

framework set forth by the drafters to establish the role 

that MMTCs play in producing and distributing medical 
14

marijuana and to provide for the regulation of those 

MMTCs.

Mr. Redner's argument is not supported by the plain 

language of section 29, which provides qualified users 

(like Mr. Redner) with immunity from criminal or civil 

liability under Florida law for the “medical use of 

marijuana” that is “in compliance” with the amendment 

(emphasis added). Qualified users are permitted to 

acquire, possess, use, deliver, transfer, and administer 

marijuana in amounts that do not conflict with the 

Department's rules. Mr. Redner argues that the term 

“use” contained in the medical use definition permits him 

to cultivate and process marijuana. The term “use” is not 

defined by the amendment. However, it is clear, when one 

examines the entire amendment, that “use” does not 

mean “grow” or “process,” as Mr. Redner argues.

In examining section 29 as a whole, we must 

recognize the distinctions made by the drafters between 

the activities permitted to be performed by MMTCs and 

the activities permitted to be performed by qualified 

patients. We must also recognize the role the drafters 

gave to MMTCs to play in the production and distribution 

of medical marijuana. The framers explicitly authorized 

MMTCs to cultivate, process, and distribute medical 

marijuana. Art. X, § 29(b)(5), Fla. Const. Unlike the 

express language concerning MMTCs, there is no explicit 

language authorizing qualified patients to grow, 

cultivate, or process marijuana. Had the drafters 

intended for qualified patients to be able to cultivate or 

process medical marijuana, that language would have 

been included in the definition of medical use; it was not.

When we read the constitutional provisions, as a 

whole, we find that the language of section 29 is clear, 

unambiguous, and addresses the issue on appeal. A 

qualified patient's ability to use and possess marijuana 

does not include authorization to grow, cultivate, and/or 

process marijuana. Article X, section 29 of the Florida 

Constitution only authorizes MMTCs to grow, cultivate, 

and process marijuana for qualified patients.
15

273 So. 3d 170, 172-73 (Fla. 1st DCA 2019) (emphasis added).

As noted by our Court in Redner, the logic of the panel opinion

and the preliminary injunction conflict with the ballot summary 

provided to the voters who considered this amendment:

We also look to the ballot summary to determine the 

purpose of the amendment and the will of the voters 

because a ballot summary provides the purpose of the 

amendment and has to present the scope of an 

amendment in order to be valid. See Advisory Op. to Att'y 

Gen. re Term Limits Pledge, 718 So. 2d 798, 804 (Fla. 

1998) (if a ballot summary does not accurately describe 

the scope of the amendment, then it fails to accurately 

describe the purpose of the amendment). The Florida 

Supreme Court found the ballot summary for Article X, 

section 29 of the Florida Constitution fairly informed the 

voters of the purpose of the proposed amendment. In re 

Advisory Op. to Att'y Gen. re Use of Marijuana for 

Debilitating Med. Conditions, 181 So. 3d 471, 478-79 (Fla. 

2015). The ballot summary read as follows:

Allows medical use of marijuana for 

individuals with debilitating medical conditions 

as determined by a licensed Florida physician. 

Allows caregivers to assist patients' medical use 

of marijuana. The Department of Health shall 

register and regulate centers that produce and 

distribute marijuana for medical purposes and 

shall issue identification cards to patients and 

caregivers. Applies only to Florida law. Does not 

immunize violations of federal law or any nonmedical use, possession or production of 

marijuana.

Id. at 476. There is no language contained in the ballot 

summary that would have allowed the voters to surmise 

that the passing of this amendment would permit 

qualified patients to cultivate and process their own 

medical marijuana. Therefore, Mr. Redner's position is 

not consistent with the purpose of the amendment or the 

will of the voters.
16

273 So. 3d at 174 (emphasis added). 

Given the logic and rationale of Redner, the preliminary 

injunction here may produce the inevitable conclusion that the 

amendment was approved under a flag of “false colors” when the 

ballot summary informed the voters that the legislature and 

governor could adopt and implement reasonable restrictions on the 

use of marijuana. See Armstrong v. Harris, 773 So. 2d 7, 16 (Fla. 

2000) (“A ballot title and summary cannot ‘fly under false colors’ 

or hide the ball’ as the amendment’s true effect”). 

For all the above reasons, this Court should have agreed to

rehear this case en banc and reverse the fatally flawed preliminary 

injunction. Thus, I dissent from the denial of rehearing en banc.

_____________________________

Jason Gonzalez, Rachel Nordby, and Amber Stoner Nunnally of 

Shutts & Bowen LLP, Tallahassee; Joe Jacquot and John MacIver 

of the Executive Office of Governor Ron DeSantis, Tallahassee; and 

Louise Wilhite-St Laurent, General Counsel, Florida Department 

of Health, Tallahassee, for Appellants.

Katherine E. Giddings, BCS of Akerman LLP, Tallahassee, 

Jonathan S. Robbins of Akerman LLP, Fort Lauderdale, Ari H. 

Gerstin of Akerman LLP, Miami, and Luke Lirot, Clearwater, for 

Appellees.

John M. Lockwood, Thomas J. Morton, and Devon Nunneley of The 

Lockwood Law Firm, Tallahassee, for amici curiae DFMMJ 

Investments, LLC d/b/a Liberty Health Sciences, Acreage Florida, 

Inc., 3 Boys Farm, LLC d/b/a 3 Boys Farm, and MME Florida, LLC

d/b/a MedMen.

James A. McKee of Foley & Lardner LLP, Tallahassee, for amici 

curiae Perkins Nursery, Inc., Deleon’s Bromeliads, Inc., San 

Felasco Nurseries, Inc. d/b/a Harvest, and Better-Gro Companies, 

LLC d/b/a Columbia Care Florida. 

William D. Hall, III and Daniel R. Russell, of Dean Mead & 

Dunbar, Tallahassee, for amicus curiae Dewar Nurseries, Inc.