FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D20-1372

_____________________________

TROPIFLORA, LLC, as agent for 

MariJ Agricultural, Inc., and 

Dennis and Linda Cathcart, 

d/b/a TropiFlora Nursery,

Appellant,

v.

FLORIDA DEPARTMENT OF 

HEALTH,

Appellee.

_____________________________

On appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

September 7, 2022

RAY, J.

This appeal arises from a final judgment for the Florida 

Department of Health in an action brought by TropiFlora, LLC, as 

agent for MariJ Agricultural, Inc. and Dennis and Linda Cathcart

d/b/a TropiFlora Nursery, seeking a declaration that it is entitled 

to licensure as a medical marijuana treatment center under 

section 381.986(8)(a)2.1., Florida Statutes (2019). For the reasons 

below, we affirm. 
2

I.

In July 2015, TropiFlora applied for one of five regional 

licenses in the state to cultivate and distribute medical marijuana 

as a dispensing organization (“DO”) under the now-repealed 

Compassionate Medical Cannabis Act of 2014 (the “2014 Law”). 

Only nurseries meeting certain statutory criteria could apply for 

DO licensure. § 381.986(5)(b)1., Fla. Stat (2015). As part of the 

application process, the nurseries needed to provide certified 

financial statements to the Department to show “[t]he financial 

ability to maintain operations for the duration of the 2-year 

approval cycle.” § 381.986(5)(b)5., Fla. Stat. Through negotiated 

rulemaking, the Department established procedures for DO 

application, approval, and authorization. Fla. Admin. Code R. 64-

4.001(1), 64-4.002(2)(f)1. (2015). These rules included a warning 

that if applicants failed to provide the required documentation, 

their application would be denied prior to scoring. Fla. Admin. 

Code R. 64-4.002(4).

TropiFlora’s application included a certificate of nursery 

registration issued to TropiFlora, but it did not include certified 

financial statements for TropiFlora itself. Instead, it relied on 

financial statements for MariJ, a separate corporate entity from 

TropiFlora. Neither MariJ nor the Cathcarts applied for licensure, 

and neither of them satisfies the requirements for licensure. 

The Department notified TropiFlora that the company’s 

application failed to include the statutorily required financial 

statements. Although the Department gave TropiFlora fourteen 

days to cure the deficiency, TropiFlora failed to do so. Instead, it 

contended that because MariJ was a “shareholder” of TropiFlora, 

it believed the financial statements of MariJ were enough to 

comply with the statute and rules. In November 2015, the 

Department notified TropiFlora that its application was denied for 

failure to cure the cited deficiency.

TropiFlora filed a formal written protest under chapter 120, 

Florida Statutes, challenging the denial of its license application 

(the “2015 Petition”). The Department referred the petition to the 

Division of Administrative Hearings, which consolidated 

TropiFlora’s proceeding with the proceedings of other challengers 
3

for the same regional license. But two months before the scheduled 

final hearing, TropiFlora instituted the circuit court action at issue 

in this appeal and voluntarily dismissed its administrative 

petition, abandoning its administrative remedy before the process 

was completed.

TropiFlora later filed an amended complaint in circuit court 

“as agent for” MariJ and the Cathcarts. Both the complaint and 

amended complaint stemmed from chapter 2016-123, Laws of 

Florida (the “2016 Law”), a then-recent statutory amendment that 

authorized a limited expansion of available DO licenses within the 

five regions. In TropiFlora’s view, the 2016 Law allowed an 

applicant that was previously denied DO approval to sue in circuit 

court and obtain a de novo determination on entitlement to 

licensure. 

While the amended complaint was pending, the legislature 

completely rewrote section 381.986, Florida Statutes (the “2017 

Law”), to implement a constitutional amendment approved by the 

voters in late 2016. The amendment allows qualifying patients to 

access medical marijuana with higher THC content and authorizes 

the use of medical marijuana to treat a broader range of medical 

conditions than the 2014 Law. See art. X, § 29(b)(1), (b)(4), Fla. 

Const. 

Relevant to this appeal, the 2017 Law no longer provided for 

the licensure of DOs, replacing them with medical marijuana 

treatment centers (MMTCs) that have additional requirements.

The 2017 Law provided for the conversion of existing DO licenses 

to MMTC licenses and for the Department to issue additional 

MMTC licenses to certain former DO applicants whose 

applications were “reviewed, evaluated, and scored by the 

Department” under the 2014 Law. § 381.986(8)(a)2.a., Fla. Stat. 

(2017). The 2017 Law also retained (and moved) the requirement 

that applicants submit certified financial statements to the 

Department. § 381.986(8)(b)7., Fla. Stat. (2017). 

After the 2017 Law went into effect, TropiFlora filed a second 

amended complaint, this time seeking a declaratory judgment that

TropiFlora, MariJ, and the Cathcarts, collectively, were entitled to 

MMTC licensure under the 2017 Law. TropiFlora contended that 
4

its application should have been scored by the Department in 2015 

and if it were scored by the Department now, TropiFlora would be 

entitled to an MMTC license.

Then, in August 2018, while the declaratory judgment action 

was still pending, TropiFlora sent a formal request to the 

Department for MMTC licensure under the 2017 Law. The 

Department denied the request, and TropiFlora filed an 

administrative petition contesting that denial (the “2018 

Petition”). In short, TropiFlora raised the same argument at issue 

in its circuit court action—that “but for” the Department’s 

improper refusal to score its 2015 application, TropiFlora would be 

entitled to an MMTC license under the 2017 Law. 

The Department dismissed TropiFlora’s petition with 

prejudice and denied its request for MMTC licensure. The 

Department found that TropiFlora did not (and cannot) meet the 

criteria for MMTC licensure because its 2015 application was not 

“reviewed, evaluated, and scored,” as required for MMTC licensure 

under the 2017 Law. The Department also concluded that by 

voluntarily dismissing its 2015 Petition, TropiFlora had waived 

any challenge to the Department’s decision not to score its 

application. Although the final order included the statutorily 

required notice advising TropiFlora of its right to judicial review, 

TropiFlora let that right expire without filing an appeal.

About nine months later, the circuit court held a bench trial 

on TropiFlora’s second amended complaint. In the end, the court 

concluded that TropiFlora was not entitled to relief based on five 

independent and alternative grounds. First, TropiFlora lacked 

standing to bring the action as an agent for MariJ and the 

Cathcarts. Second, TropiFlora’s claim is barred by the doctrines of 

administrative finality and the exhaustion of administrative 

remedies. Third, TropiFlora does not and cannot satisfy the 

minimum statutory requirements for MMTC licensure under the 

2017 Law. Fourth, the Department did not have to score 

incomplete applications. And fifth, the court could not compel the 

Department to score TropiFlora’s application under the nowrepealed 2014 Law. This appeal followed.
5

II.

Of the five independent and alternative rulings of the trial 

court, we conclude that each was sufficient on its own to support 

an entry of final judgment in favor of the Department.

A.

We turn first to the issue of standing; that is, whether 

TropiFlora could bring this action “as agent for” MariJ and the 

Cathcarts. Whether a party has standing is a pure question of law

that we review de novo. McCarty v. Myers, 125 So. 3d 333, 336 (Fla. 

1st DCA 2013). “Florida Rule of Civil Procedure 1.210(a), the real 

party in interest rule, ‘permits an action to be prosecuted in the 

name of someone other than, but acting for, the real party in 

interest.’” Robinson v. Nationstar Mortg., LLC, 301 So. 3d 1059, 

1062 (Fla. 2d DCA 2019) (quoting Russel v. Aurora Loan Servs., 

LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015)). The “real party in 

interest” is “the person in whom rests, by substantive law, the 

claim sought to be enforced.” Fla. R. Civ. P. 1.210 cmt. 

Here, TropiFlora sought to act as a nominal plaintiff, bringing 

the declaratory judgment action on behalf of or as the agent for

MariJ and the Cathcarts. But the undisputed evidence showed 

that MariJ and the Cathcarts are not the real parties in interest. 

TropiFlora was the entity that applied for DO licensure in 2015, 

not MariJ or the Cathcarts. Neither MariJ nor the Cathcarts ever 

applied for a license. Nor could they, because they did not and 

cannot satisfy the requirements for either DO or MMTC licensure. 

Thus, individually, MariJ and the Cathcarts have no personal and 

individual stake in DO licensure, and the trial court correctly 

determined that TropiFlora cannot sue on their behalf. See Reibel 

v. Rolling Green Condo. A, Inc., 311 So. 2d 156, 158 (Fla. 3d DCA 

1975) (holding that the trial court erred by denying the defendant’s 

motion to dismiss when the plaintiffs seeking a declaratory 

judgment were not the real parties in interest and thus lacked 

standing). 
6

B.

Even if TropiFlora had standing to sue on behalf of MariJ and 

the Cathcarts, we would affirm the order on appeal because 

TropiFlora failed to challenge all of the independent, alternative 

reasons the trial court relied on for granting final judgment in the 

Department’s favor. See B.T. v. Dep’t of Child. & Fams., 300 So. 3d 

1273, 1278–79 (Fla. 1st DCA 2020); see also Boggs v. Aetna Cas. & 

Sur. Co., 341 So. 2d 1071, 1071 (Fla. 1st DCA 1977) (explaining 

“that when an order of the trial court purports to be based upon 

several alternative grounds it will not be disturbed on appeal if one 

of the grounds is sufficient for the action taken even though 

another recited alternative ground is erroneous”).

In particular, TropiFlora failed to challenge the trial court’s 

determination that TropiFlora does not satisfy the statutory 

requirements for MMTC licensure under the 2017 Law. Nor can it. 

The statute expressly limits licensure to those applicants whose 

applications were “scored” by the Department. § 381.986(8)(a)2.a., 

Fla. Stat. So regardless of whether TropiFlora’s application should 

have been scored when it was submitted in 2015, the fact remains 

that it was not. Thus, TropiFlora is ineligible, as a matter of law, 

for the MMTC license that it seeks. 

C.

We also agree with the trial court that TropiFlora’s complaint

is barred by the doctrines of administrative finality and exhaustion 

of administrative remedies. TropiFlora abandoned its first 

administrative remedy and let the second one expire.

“The doctrine of decisional finality provides that there must 

be a ‘terminal point in every proceeding both administrative and 

judicial, at which the parties and the public may rely on a decision 

as being final and dispositive of the rights and issues involved 

therein.’” Fla. Power Corp. v. Garcia, 780 So. 2d 34, 44 (Fla. 2001). 

An issue is precluded from being relitigated between the same 

parties when there are common facts and issues presented in 

different proceedings and there has not been a significant change 

in circumstances. Id.
7

The exhaustion of administrative remedies doctrine requires 

that “with rare exception relating usually to matters not 

cognizable in the circuit court, a party cannot resort to the courts 

for a decision until administrative remedies are exhausted.” City 

of Sunny Isles Beach v. Publix Super Mkts., Inc., 996 So. 2d 238, 

239 (Fla. 3d DCA 2008). “The exhaustion requirement includes 

‘pursuing an appeal from an administrative ruling where a method 

of appeal is available.’” Agency for Health Care Admin. v. Best Care 

Assurance, LLC, 302 So. 3d 1012, 1015 (Fla. 1st DCA 2020)

(quoting Robinson v. Dep’t of Health, 89 So. 3d 1079, 1081 (Fla. 1st 

DCA 2012)).

Although in exceptional cases a declaratory judgment action 

may be used to collaterally attack a final agency action, this is not 

one of those cases. See Baker Cnty. Med. Servs., Inc. v. State, 178 

So. 3d 71, 74–75 (Fla. 1st DCA 2015) (recognizing such an 

exception if an agency acts in excess of its statutory authority or 

without the benefit of any rule); Sch. Bd. of Leon Cnty. v. Mitchell, 

346 So. 2d 562, 565–68 (Fla. 1st DCA 1977) (reaffirming that 

declaratory judgment actions may not replace established 

procedures of administrative appeal or review, except when 

agencies act beyond their powers or flagrantly violate the 

constitutional or statutory rights of a party).

Here, the Department’s actions were not excessive or 

arbitrary. Instead, the Department acted well within its duties 

under the rules and enabling statute when it denied TropiFlora’s 

application for DO licensure because TropiFlora failed to provide

the required financial information. The Department then provided 

TropiFlora with the statutorily required notice and opportunity to 

challenge that decision. TropiFlora pursued administrative 

review, but later voluntarily dismissed its 2015 Petition and

abandoned its remedy before the administrative process 

concluded. When the Department dismissed TropiFlora’s 2018 

Petition challenging the denial of its request seeking MMTC 

licensure, the company chose not to seek judicial review of that 

final order. Thus, TropiFlora cannot use a declaratory judgment 

action to collaterally attack those decisions now. See Hollywood 

Lakes Section Civic Ass’n, Inc. v. City of Hollywood, 676 So. 2d 500, 

501 (Fla. 4th DCA 1996) (“The ‘declaratory decree statute is no 

substitute for established procedure for review of final judgments 
8

or decrees. Nor is it a device for collateral attack upon them.’” 

(quoting deMarigny v. deMarigny, 43 So. 2d 442, 445 (Fla. 1949))).

In reaching our decision, we have not overlooked TropiFlora’s 

argument that the Department had a non-discretionary duty to 

score its application. We simply disagree. The rules and enabling 

statute require a nursery to provide certified financial statements

before its application can be considered. Despite several 

amendments, section 381.986 has always required an applicant to 

provide financial statements as a condition of licensure. Compare

§ 381.986(5)(b)5., Fla. Stat. (2014), with § 381.986(8)(b)7., Fla. 

Stat. (2021); and see Fla. Admin. Code R. 64-4.002(2)(f)1., (4)

(requiring an applicant to provide certified financials and warning 

that incomplete applications will not be scored). The statute and 

rules are in harmony, and they do not contemplate scoring or 

approving an incomplete application. The Department gave 

TropiFlora a chance to correct the deficiency in its application, but 

TropiFlora failed to do so and reasserted its belief that MariJ’s 

financial statements were sufficient. Thus, the Department 

properly denied TropiFlora’s application for failing to provide the 

required documentation.

D.

Finally, the trial court correctly concluded that it could not 

compel the Department to score TropiFlora’s application under the 

standards in effect in 2015. Even if a declaratory judgment action 

could be used to collaterally attack the Department’s decision, 

courts must apply the licensure law in effect when the licensing 

decision is made, not the law in effect when the application is 

submitted. Lavernia v. Dep’t of Pro. Regul., Bd. of Med., 616 So. 2d 

53, 53–54 (Fla. 1st DCA 1993) (“Florida follows the general rule 

that a change in a licensure statute that occurs during the 

pendency of an application for licensure is operative as to the 

application, so that the law as changed, rather than as it existed 

at the time the application was filed, determines whether the 

license should be granted.”). 

All previous versions of section 381.986 were repealed in 2017. 

See Oldham v. Rooks, 361 So. 2d 140, 143 (Fla. 1978) (“[W]hen the 

legislature makes a complete revision of a subject, it serves as an 
9

implied repeal of earlier acts dealing with the same subject unless 

an intent to the contrary is shown.”). The law now authorizes the 

licensure of MMTCs, not DOs. TropiFlora’s 2015 application 

addressed only the then-existing legal requirements for DO 

licensure, not the current requirements for MMTC licensure. 

TropiFlora seeks a DO license under a now-repealed law, and 

no court or agency can grant the requested relief. See Ocampo v. 

Dep’t of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002) (“An 

administrative agency is a creature of statute” and it “can only do 

what it is authorized to do by the Legislature.”); Fla. Ass’n of 

Rehab. Facilities, Inc. v. Dep’t of Health & Rehab. Servs., 526 F.3d

685, 690 (11th Cir. 2008) (affirming the dismissal of appellant’s 

action for declaratory relief because it was rendered moot by the 

repeal of the statute underlying the claim); see also Arick v. 

McTague, 292 So. 2d 31, 32 (Fla. 1st DCA 1973) (holding that the 

trial court reversibly erred by applying a statute that had been 

repealed after the date of an accident but before the entry of 

summary judgment). 

AFFIRMED.

JAY and TANENBAUM, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Steven R. Andrews of the Law Office of Steven R. Andrews, P.A., 

Tallahassee; and Cynthia A. Myers of the Law Office of Cynthia A. 

Myers, P.A., Tallahassee, for Appellant.

Eduardo S. Lombard and Angela D. Miles of the Radey Law Firm, 

Tallahassee, for Appellee.