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,

CELESTE PHILIP, M.D., M.P.H.,

in her 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.

July 9, 2019
2

PER CURIAM.

The Department of Health (Department) challenges the trial 

court’s entry of a temporary injunction which:

(1) immediately enjoin[ed] the Department of Health 

from registering or licensing any [Medical Marijuana 

Treatment Centers] pursuant to the unconstitutional 

legislative scheme set forth in Section 381.986, Florida 

Statutes, (2) requir[ed] the Department by 5:00 PM 

Friday, October 19, 2018 to commence registering 

MMTCs in accordance with the plain language of the 

Medical Marijuana Amendment, and (3) requir[ed] the 

Department to register F1origrown as an MMTC by 5:00 

PM Friday, October 19, 2018, unless the Department 

c[ould] clearly demonstrate [] that such registration 

would result in unsafe use of medical marijuana by 

qualifying patients.

We determine that certain aspects of the injunction are

overbroad and unsupported by the evidence and factual findings.

We, however, uphold the injunction to the extent it requires the 

Department to consider Florigrown’s request for licensure without 

applying the portions of the statutory scheme which this opinion

identifies as being unconstitutional.

PROCEDURAL HISTORY

In 2016, voters amended the Florida Constitution to protect the 

production, possession, and use of medical marijuana. Art. X, § 29, 

Fla. Const. The amendment went into effect on January 3, 2017, 

and states, in relevant part:

(b)(5) “Medical Marijuana Treatment Center” 

(MMTC) means an 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. 
3

. . . .

(d) The Department shall issue reasonable regulations 

necessary for the implementation and enforcement of this 

section. The purpose of the regulations is to ensure the 

availability and safe use of medical marijuana by 

qualifying patients. It is the duty of the Department to 

promulgate regulations in a timely fashion. 

(1) Implementing Regulations. In order to allow the 

Department sufficient time after passage of this section, 

the following regulations shall be promulgated no later 

than six (6) months after the effective date of this section: 

. . . .

(3) If the Department does not issue regulations, or 

if the Department does not begin issuing identification 

cards and registering MMTCs within the time limits set 

in this section, any Florida citizen shall have standing to 

seek judicial relief to compel compliance with the 

Department’s constitutional duties.

Art. X, § 29(b)(5) and (d)(1), (3), Fla. Const.

Two weeks after the amendment went into effect, appellee 

sent the Department a letter seeking to register as an MMTC. The 

Department denied the request because it had not yet promulgated 

any regulations pursuant to the amendment.

In June 2017, the Legislature passed a bill later signed by the 

governor amending section 381.986, Florida Statutes, which set 

forth a statutory framework for the registration of MMTCs by:

• Directing the Department to convert the existing 

licenses of low-THC and medical cannabis dispensing 

organizations into MMTC licenses so long as the 

organizations still maintained all of the criteria set 

forth in section 381.986(8)(a)1., Florida Statutes.

• Providing for ten additional MMTC licenses for 

applicants that were (1) previously denied a 
4

dispensing organization license under the prior 

version of section 381.986 so long as the organization 

had a pending a judicial or administrative challenge 

pending as of January 1, 2017, or had a final ranking 

within one point of the highest final ranking in its 

region; (2) in compliance with the requirements of the 

amended statute; and (3) able to provide the 

Department with documentation that they could begin 

cultivating marijuana within 30 days of registration 

as an MMTC. See § 381.986(8)(a)2., Fla. Stat. 

• Stating that a licensed medical marijuana treatment 

center shall cultivate, process, transport, and dispense 

marijuana for medical use. See § 381.986(8)(e), Fla. 

Stat. 

• Requiring the Department to adopt rules to establish 

a procedure for issuing MMTC licenses in accordance 

with the amended statute. See § 381.986(8)(b), Fla. 

Stat. 

In December 2017, appellee filed suit requesting a declaratory 

judgment and a permanent injunction declaring these provisions

unconstitutional and mandating the Department register appellee 

as an MMTC.

During this suit, appellee filed a motion for a temporary 

injunction. The trial court initially denied appellee’s motion

without prejudice despite finding that appellee had a substantial 

likelihood of success on the merits, because it found that appellee 

could not prove irreparable harm or that a temporary injunction 

would be in the public’s best interests.

Three months later, appellee filed a renewed motion for a 

temporary injunction. The trial court granted this motion, finding 

that the Department’s unwillingness to draft rules for registering 

MMTCs in accordance with the plain language of the amendment 

in the three months since it denied appellee’s original motion for a 

temporary injunction required a different result and incorporating 

the findings of its earlier order.
5

STANDARD OF REVIEW

We review a trial court’s order on a request for temporary 

injunction in a hybrid format: “The court’s factual findings are 

reviewed for an abuse of discretion, whereas its legal conclusions 

are reviewed de novo.” State, Dep’t of Health v. Bayfront HMA Med. 

Ctr., LLC, 236 So. 3d 466, 471 (Fla. 1st DCA 2018) (citing 

Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258 (Fla. 

2017)).

ANALYSIS

To obtain a temporary injunction, a party must provide 

specific facts establishing four elements: “(1) a substantial 

likelihood of success on the merits, (2) a lack of an adequate 

remedy at law, (3) the likelihood of irreparable harm absent the 

entry of an injunction, and (4) that injunctive relief will serve the 

public interest.” Id. at 472 (citing Sch. Bd. of Hernando Cty. v. 

Rhea, 213 So. 3d 1032, 1040 (Fla. 1st DCA 2017)).

SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

A statute enacted by the legislature may not restrict a right 

granted under the constitution and, to the extent that a statute 

conflicts with express or implied mandates of the constitution, the 

statute must fall. Notami Hosp. of Florida, Inc. v. Bowen, 927 So.

2d 139, 142 (Fla. 1st DCA 2006), aff’d sub nom. Florida Hosp. 

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

the State is not permitted to alter the definition or meaning of a 

term laid out in the constitution. See Dep’t of Envtl. Prot. v. 

Millender, 666 So. 2d 882 (Fla. 1996) (holding that the industryaccepted definition of a term trumps a statutory or rule-based 

definition when the effect of the statutory or rule-based definition 

would severely restrict or diminish the industry the constitutional 

amendment is designed to regulate).

The Department contends that appellee did not prove it had a 

substantial likelihood of success on the merits because section 

381.986 does not conflict with the amendment, and the 

amendment does not prohibit the legislature from placing a cap on 

the number of MMTCs the Department may register. We disagree.
6

The amendment defines a Medical Marijuana Treatment 

Center as:

an 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.

Art. X, § 29(b)(5) Fla. Const. (emphasis added).

Meanwhile section 381.986(8)(e), Florida Statutes, states, in 

pertinent part, “A licensed medical marijuana treatment center 

shall cultivate, process, transport, and dispense marijuana for 

medical use.” (emphasis added).

Section 381.986(8)(e) thus creates a vertically integrated 

business model which amends the constitutional definition of 

MMTC by requiring an entity to undertake several of the activities 

described in the amendment before the Department can license it. 

Under the statute, an entity must conform to a more restricted 

definition than is provided in the amendment; therefore, all 

MMTCs under the statute would qualify as MMTCs under the 

constitutional amendment, but the reverse is not true.

We thus find the statutory language directly conflicts with the 

constitutional amendment, and appellee has demonstrated a 

substantial likelihood of success in procuring a judgment declaring 

section 381.986(8)(e) unconstitutional. See Notami Hosp., 927 So. 

2d at 142.

As a direct result, we are constrained to find that appellee has

also established a substantial likelihood of success in its challenge 

to the statutory cap of MMTCs under section 381.986(8)(a)1.-2., 4., 

Florida Statutes.

The State may not regulate an industry governed by a 

constitutional amendment in such a manner that would severely 

restrict or diminish the industry. Millender, 666 So. 2d at 887.

Here, the amendment requires the Department to issue 
7

“reasonable regulations necessary for the implementation and 

enforcement of this section. The purpose of the regulations is to 

ensure the availability and safe use of medical marijuana by 

qualifying patients.” Art. X, § 29(d), Fla. Const. The statute 

provides for the registration of seventeen MMTCs in the entire 

state, with a requirement that within six months of an additional 

100,000 patients registering with the Department another four 

MMTCs shall be licensed. § 381.986(8)(a)1.-2., 4., Fla. Stat.

Our ruling that the vertically integrated system conflicts with 

the constitutional amendment thus renders the statutory cap on 

the number of facilities in section 381.986(8)(a) unreasonable. It is 

therefore unnecessary for us to address the Department’s 

authority to establish any caps.

IRREPARABLE HARM AND INADEQUATE REMEDY AT LAW

A trial court is required to provide specific reasons for 

entering a temporary injunction which must be supported by 

specific factual findings. Fla. R. Civ. P. 1.610(c); Milin v. Nw. 

Florida Land, L.C., 870 So. 2d 135, 136 (Fla. 1st DCA 2003). We 

find that the trial court made sufficient findings supported by the 

record to establish that appellee will suffer irreparable harm 

without injunctive relief and that appellee has no adequate remedy 

at law.

The irreparable harm and inadequate remedy at law prongs

are established by the fact that appellee is being 

unconstitutionally prevented from participating in the process for 

obtaining a license to operate as an MMTC. The amendment itself 

recognizes there is no adequate remedy at law where, as here, a 

state agency or actor refuses to abide by its express duties 

mandated under the constitution. The amendment specifically 

provides a cause of action to seek to “compel compliance with the 

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

Even if there were a remedy at law, the law recognizes that a 

continuing constitutional violation, in and of itself, constitutes 

irreparable harm. The law also recognizes that implementation of 

an unconstitutional statute for which no adequate remedy at law 

exists leads to irreparable harm, which is the case here. 

Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1264 (Fla. 
8

2017). And where time is of the essence, as the Medical Marijuana 

amendment clearly provides, “[i]t truly can be said in this type of 

litigation that relief delayed is relief denied.” Capraro v. Lanier 

Bus. Products, Inc., 466 So. 2d 212, 213 (Fla. 1985) (concluding 

that irreparable injury is presumed in non-compete cases because 

“[i]mmediate injunctive relief is the essence of such suits and 

oftentimes the only effectual relief.”). Moreover, because all of the 

defendants are either state governmental entities or state 

governmental actors, absent a waiver of sovereign immunity in the 

amendment, which is not present, no monetary damages could be 

recovered at law for the constitutional violations. See, e.g., Tucker 

v. Resha, 634 So. 2d 756, 759 (Fla. 1st DCA 1994). As the trial court 

found here, there is simply no remedy available to appellee in such 

circumstances. Nothing argued by the Department suggests 

otherwise.1

 1 The Department cites the decisions in State, Department of 

Health v. Bayfront HMA Medical Center, LLC, 236 So. 3d 466 (Fla. 

1st DCA 2018); State Agency for Health Care Admin. v. Continental 

Car Services, Inc., 650 So. 2d 173, 175 (Fla. 2d DCA 1995); Stand 

Up for Animals, Inc. v. Monroe Cty., 69 So. 3d 1011, 1013 (Fla. 3d 

DCA 2011), for the proposition than an ability to seek monetary 

damages makes it nearly impossible for a party seeking a 

temporary injunction to establish that it has suffered irreparable 

harm. However, the circumstances underlying those decisions are 

readily distinguishable. None involve the specific violation of a

constitutional amendment, and none involve a total inability to 

participate in the licensing process. See Bayfront, 236 So. 3d at 

475-76 (Alleged irreparable harm was contingent on the approval 

of an application of a competitor to operate a trauma center); 

Continental Car, 650 So. 2d at 175 (Plaintiff alleged that a contract 

for transportation with another entity was executed without 

authority); Stand Up for Animals, 69 So. 3d at 1013 (court 

explained that the claims in this case comprised “no more than a

claim for damages stemming from a breach of contract”).
9

PUBLIC INTEREST

To sustain a temporary injunction a party must also establish 

that injunctive relief will serve the public interest. Bayfront HMA 

Med. Ctr., LLC, 236 So. 3d at 472.

The trial court’s temporary injunction requires the 

Department to undertake three specific actions previously 

discussed. We determine that the trial court’s factual findings 

support the conclusion that it is in the public interest to require

the Department to registering or license MMTCs without applying 

the unconstitutional statutory provisions which appellee has 

challenged. However, the public interest does not support

requiring the Department to immediately begin registering 

MMTCs or registering appellee at this stage of the proceedings.

The amendment specifically directs the Department to establish 

“standards [for MMTCs] to ensure proper security, record keeping, 

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

Const.

While it is in the public interest for the Department to 

promulgates rules that do not thwart the purpose of the

amendment, it is also clear that the public interest would not be 

served by requiring the Department to register MMTCs pursuant 

to a preliminary injunction without applying other regulations to 

uphold the safety of the public.

We thus AFFIRM that portion of the injunction that precludes 

appellants from enforcing the unconstitutional provisions but 

allows the Department a reasonable period of time to exercise its 

duties under the constitutional amendment.

WOLF, J., concurs; MAKAR, J., concurs with opinion; WETHERELL,

J., concurs in part and dissents in part with opinion.

_____________________________

Not final until disposition of any timely and 

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

9.331.

_____________________________
10

MAKAR, J., concurring with opinion.

I fully concur but add one point. A good case can be made for 

why the public interest is served without an injunction, but a 

better case is made that the public interest is best served with 

injunctive relief as modified by the per curiam opinion. A high 

likelihood of success on the merits exists on the primary 

constitutional claim and the people of Florida voted for this 

amendment to be implemented rapidly (with deadlines now far 

exceeded). 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 nonintegrated market structure the amendment envisions. While the 

supply-side structure of the medical marijuana market may be 

disjointed, at least in the short term, the intent of the amendment 

cannot be achieved anytime soon unless its language is put into 

operation. That the portion of the statute establishing a verticallyintegrated industry structure is impermissible doesn’t reduce or 

interfere with the Department of Health’s ongoing regulatory 

authority to protect the public generally. In short, the public 

interest is best served by allowing implementation of the market 

structure the constitutional amendment requires subject to the 

Department’s broad powers to protect the public.

WETHERELL, J., concurring in part and dissenting in part.

I agree with the majority opinion insofar as it quashes the 

portions of the preliminary injunction requiring the Department 

to immediately register Appellees—and potentially others—as 

medical marijuana treatment centers (MMTCs). 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 purpose of a preliminary injunction is to preserve the 

status quo pending the final disposition of the case. See City of 

Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750, 

754 (Fla. 1st DCA 1994) (quoting Ladner v. Plaza Del Prado 
11

Condo. Ass'n, 423 So. 2d 927, 929 (Fla. 3d DCA 1982)). The 

issuance of a preliminary injunction is “an extraordinary remedy 

which should be granted sparingly.” Id. at 752 (quoting Thompson 

v. Planning Comm’n of Jacksonville, 464 So. 2d 1231, 1236 (Fla. 

1st DCA 1985)). This is especially true where, as here, the act

being enjoined is an act of a co-equal branch of government.

The Medical Marijuana Amendment2 provides immunity from 

criminal sanctions and civil liability for the medical use of 

marijuana, but only when it is used “in compliance with [the 

Amendment].” Art. X, § 29(a), Fla. Const.; see also Fla. Dep’t of 

Health v. Redner, 2019 WL 1466883, at *2 (Fla. 1st DCA Apr. 3, 

2019). The Amendment authorizes the Department to adopt 

regulations to “ensure the availability and safe use of medical 

marijuana by qualifying patients,” art. X, § 29(d), Fla. Const., and 

it also authorizes the Legislature to “enact[] laws consistent with 

[the Amendment],” id. at § 29(e). The Amendment specifically 

contemplates the adoption of regulations pertaining to the 

registration and operation of MMTCs. See id. at § 29(d)(1)c.

The medical marijuana industry is unique in that its product 

is illegal to possess, sell, and use, both under federal law and for 

non-medical purposes under Florida law. Because of this, the state 

has a compelling interest in ensuring that the industry is highlyregulated and operating within the narrow bounds established by 

the Medical Marijuana Amendment. However, that compelling 

interest cannot justify the enactment of statutes or regulations 

that contravene the plain language of the Amendment.

The primary issue in this case is whether the statute 

requiring MMTCs to be “vertically integrated” and perform all 

activities in the medical marijuana supply chain from cultivation 

to distribution is consistent with the definition of MMTC in the 

Medical Marijuana Amendment.3 Appellees contend that the 

 2 Amend. 2 (2016) (codified in art. X, § 29, Fla. Const.).

3 Appellees also challenge the statute capping the number of 

MMTCs, see § 381.986(8)(a), Fla. Stat., but the merit of that claim 

was not addressed by the trial court. Moreover, at this stage of the 

litigation, the challenge to the caps is largely derivative of 
12

statute is inconsistent with the Amendment because, unlike the 

statute, the constitutional definition expressly contemplates that 

an entity can be engaged in as little as one aspect of the medical 

marijuana supply chain and still be an MMTC. Compare § 

381.986(8)(e), Fla. Stat. (“A licensed medical marijuana treatment 

center shall cultivate, process, transport, and dispense marijuana 

for medical use.”) (emphasis added) with Art. X, § 29(a)(5), Fla. 

Const. (“[MMTC] means an entity that acquires, cultivates, 

possesses, processes ..., transfers, transports, sells, distributes, 

dispenses, or administers marijuana ....”) (emphasis added). The 

Department responds that because the constitutional definition 

“in no way speaks to how the supply chain of medical marijuana 

must be structured,” the Legislature had the constitutional 

authority to determine as a policy matter which supply-chain 

structure best ensures not only the availability of medical 

marijuana but also its safety and security.

Although there may be sound policy reasons for requiring 

MMTCs to be vertically integrated, I agree with Appellees (and the 

majority) that the statute likely contravenes the constitutional 

definition of MMTC because an entity that meets the 

constitutional definition by performing one or more—but not all—

of the activities in the medical marijuana supply chain cannot be 

registered and operate as an MMTC under the statute. 

Accordingly, I agree with the majority that Appellees have shown 

a substantial likelihood of success on the merits of their claim that 

the statute contravenes the constitutional definition of MMTC 

and, thus, is unconstitutional.

A substantial likelihood of success on the merits is not, 

however, enough to obtain a preliminary injunction. The movant 

must also establish that it will likely suffer irreparable harm 

absent an injunction, that the movant does not have an adequate 

remedy at law, and that the injunction would serve the public 

interest. See City of Jacksonville, 634 So. 2d at 752 (quoting 

Thompson, 464 So. 2d at 1236). Here, unlike the majority, I am 

 

Appellees’ challenge to the statute requiring vertical integration 

because if the vertical integration requirement is invalid, then the 

caps are clearly indefensible.
13

not persuaded that any portion of the preliminary injunction 

entered by the trial court 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.4 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. Indeed, the trial court initially (and correctly in my 

view) denied Appellees’ motion for a preliminary injunction, 

finding that the injunction would not be in the public interest 

because an injunction would “substantially alter the status quo by 

halting the Department’s existing rulemaking process and 

procedures for the issuance of MMTC licenses as well as the 

rulemaking currently underway to initiate the application 

process.” However, several months later, without hearing any 

additional evidence, the court reversed itself and entered the

preliminary injunction. The court did not explain how an

injunction was now in the public interest, but rather simply stated 

that “[t]he public interest was clearly stated with the passage of 

the Constitution’s Medical Marijuana Amendment by over 70% of 

Florida voters.”

The trial court’s focus on the popularity of the Medical 

Marijuana Amendment misses the mark because the Amendment 

contemplated a highly-regulated medical marijuana industry, not 

unlimited availability and unrestricted access to medical 

marijuana. To that end, the statutory scheme put in place by the 

 4 The majority states that the injunction “allows the 

Department a reasonable period of time to exercise its duties under 

the constitutional amendment,” see slip op. at 9, but that is not how 

I read the injunction. Indeed, because the injunction states that 

the Department is “immediately” 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. 
14

Legislature—and implemented by the Department—appears to be 

serving the public interest because, despite the limited number of 

vertically-integrated MMTCs currently in operation, it is 

undisputed that medical marijuana is being produced and sold to 

qualifying patients. Additionally, Appellees failed to show how the 

preliminary injunction requiring the wholesale restructuring of 

the medical malpractice industry in Florida would be in the public 

interest, and on that issue, I agree with the Department that the 

confusion and uncertainty that the change would inject into the 

fledgling industry is not in the public interest. Indeed, based on 

the present record, it seems to me that the public interest would 

be best served by leaving the carefully-crafted statutory scheme 

enacted by the Legislature in place until the final disposition of 

this case and (if the statute is declared invalid) until the 

Department has an opportunity to comply with the declaration and 

adopt any necessary regulations to prevent the unchecked 

expansion of the medical marijuana industry pursuant to its 

constitutional authority “to ensure the availability and safe use of 

medical marijuana.” See art. X, § 29(d), Fla. Stat.

Accordingly, for the reasons stated above, I would quash the 

preliminary injunction in its entirety and let the litigation play out

below. This would, among other things, allow the existing MMTCs 

to join the fray because it is their golden geese that may be killed—

or at least be devalued—if the oligopolistic statutory scheme 

established by the Legislature to implement the Medical 

Marijuana Amendment is ultimately invalidated.

_____________________________

Jason Gonzalez, Rachel Nordby, and Amber Stoner Nunnally of 

Shutts & Bowen LLP, 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.