FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D21-2378

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LOUIS DEL FAVERO ORCHIDS,

INC.,

Appellant,

v.

FLORIDA DEPARTMENT OF 

HEALTH, OFFICE OF MEDICAL 

MARIJUANA USE, COURTNEY 

COPPOLA, in her official capacity 

as Director of the Office of 

Medical Marijuana Use, and

JOSEPH A. LADAPO, in his official 

capacity as the State Surgeon 

General and Secretary of the 

Department of Health,

Appellees.

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On appeal from the Circuit Court for Leon County.

J. Layne Smith, Judge.

September 7, 2022

PER CURIAM.

Appellant seeks review of a trial court order granting 

Appellees’ motion to dismiss Appellant’s complaint. In its

complaint, Appellant demanded Appellees, the Florida 
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Department of Health (Department), issue them a Medical 

Marijuana Treatment Center (MMTC) license under the default 

licensure mechanism in section 120.60(1), Florida Statutes (2019). 

Section 120.60(1) is a general statute that applies to all state

agencies. It states “[a]n application for a license must be approved 

or denied within 90 days after receipt of a completed application” 

or the application is “considered approved.” Id. The trial court 

denied relief because it found section 120.60(1) inapplicable to 

MMTC licenses as described in section 381.986. Because the trial 

court was right, we affirm.*

This Court considered the same issue presented here in 

MedPure, LLC v. Dep’t of Health, 295 So. 3d 318 (Fla. 1st DCA 

2020). The MedPure appellants sought an MMTC license under 

section 120.60(1)’s default licensure provision. This Court denied 

relief for several reasons:

1) the Department’s rule [ ] put parties on notice that 

applications were not being accepted at that time; 2) the 

letters were not filed on an application form prepared by 

the Department; 3) the bare bones filing did not 

demonstrate compliance with the minimum licensure 

requirements; and 4) allowing the appellants to file for 

licenses during an undesignated period for filing would 

contravene the competitive structure for licensing 

contemplated in section 381.968, Florida Statutes (2019).

Id. at 322. Here, Appellant filed its application on an application 

form prepared by the Department and has invested significant 

resources into preparing and documenting its compliance with 

section 381.986’s licensure requirements. But the two other 

problems, lack of an open application window and contravention of 

the competitive structure, remain and serve as independent bases 

for denying Appellant relief.

The Department’s emergency rule has not been successfully 

challenged and carries the force of law. As we stated in MedPure, 

“[t]he Emergency Rule specifically provides that the Department 

would publish notice to the public of when it would begin accepting 

* We deny Appellees’ motion for attorney’s fees.
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applications, along with the deadline to submit applications for 

registration as an MMTC.” Id. An application is not complete if it 

does not comply with all relevant regulations and procedures. And

as we held in MedPure, section 120.68(1)’s default licensure 

provision does not apply to licenses based on need and of a limited 

number because doing so “would automatically exclude other 

applicants from consideration.” Id. at 323.

Appellant has not distinguished its application from those

considered in MedPure. We reaffirm that decision.

AFFIRMED.

WINOKUR and LONG, JJ., concur; BILBREY, J., specially concurs 

with opinion.

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Not final until disposition of any timely and 

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

9.331.

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BILBREY, J., specially concurring.

I concur in the majority opinion. Appellant is understandably 

frustrated with the ongoing failure of the Department of Health to 

open the application window and issue Medical Marijuana 

Treatment Center licenses as required by the Florida 

Constitution.* See Art. X, § 29(d), Fla. Const. The emergency rule 

referenced in the majority opinion and in MedPure, LLC v. 

* Appellants are not the only potential MMTC licensees 

frustrated by the delay. See Black Farmers Feel Left Out of 

Medical Marijuana System, https://www.usnews.com/news/beststates/florida/articles/2022-08-07/black-farmers-feel-left-out-ofmedical-marijuana-system (last visited Aug. 11, 2022). The article 

asserts that the delay in issuing licenses to other MMTCs has 

allowed three MMTCs to control two-thirds of the Florida medical 

marijuana market. 
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Department of Health, 295 So. 3d 318, 321 (Fla. 1st DCA 2020), 

was issued on September 19, 2017. See Fla. Admin. Code R. 

64ER17-2. Almost five years after the emergency rule was issued, 

the MMTC license application window remains closed.

At oral argument in MedPure in March 2020, the 

Department’s counsel at the time was asked when the MMTC 

license application window would be opened. See

https://www.1dca.org/Oral-Arguments/Oral-Argument-VideoArchives, 19-2736 (last visited Aug. 11, 2022). The panel hearing 

the argument was told that the issues in a different case, Florida 

Department of Health v. Florigrown, LLC, 317 So. 3d 1101 (Fla. 

2021), then pending at the Florida Supreme Court, were the reason 

for the delay in allowing applications. The MedPure court was 

further told that the Department wanted to open the application 

window and that the Department was preparing for what would 

happen after Florigrown was decided. But the Florigrown case 

was resolved over a year ago, and the MMTC license application 

window remains closed. 

We are correct to decline Appellant’s demand to open the 

application window and provide it a MMTC license. To grant 

Appellant default licensure would undermine the “competitive 

process” discussed in MedPure. 295 So. 3d at 323–24. But, as the 

Department conceded during oral argument in MedPure, 

aggrieved potential MMTC licensees are not without a remedy if 

the Department refuses to comply with its duties under the Florida 

Constitution. See Art. X, § 29(d)(3), Fla. Const; see also MedPure, 

295 So. 3d at 324. I respectfully suggest that the Department 

comply with its representations at the MedPure oral argument —

either open the application window referenced in the emergency 

rule or promulgate a superseding rule allowing for MMTC license 

applications. Otherwise, it may be necessary for a potential 

licensee to “seek judicial relief to compel compliance with the 

Department’s constitutional duties.” Art. X, § 29(d)(3), Fla. Const. 

 

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Seann M. Frazier and Kristen Bond Dobson of Parker, Hudson, 

Rainer & Dobbs, LLP, Tallahassee, for Appellant.
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Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen 

LLP, Tallahassee; and John Wilson, General Counsel, and Michael 

J. Williams, Chief Legal Counsel, Office of the General Counsel, 

Florida Department of Health, Tallahassee, for Appellees.