FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-4994

_____________________________

THE FLORIDA HOUSE OF 

REPRESENTATIVES,

Appellant,

v.

FLORIGROWN, LLC, VOICE OF 

FREEDOM, INC., FLORIDA 

DEPARTMENT OF HEALTH, etc., et 

al.,

Appellees.

_____________________________

On appeal from the Circuit Court for Leon County.

Charles W. Dodson, Judge.

September 13, 2019

B.L. THOMAS, J.

The Florida House of Representatives challenges the trial 

court’s order denying its motion to intervene in an action asserting 

that portions of section 381.986, Florida Statutes, violate article X, 

section 29 of the Florida Constitution. Because the House has a 

cognizable interest in the outcome of the declaratory action, we 

reverse. But we note that because this court recently denied 

rehearing en banc by a 4-4 vote in Fla. Dep’t of Health v. 

Florigrown, LLC, No. 1D18-4471, 2019 WL 2943329 (Fla. 1st DCA 

July 9, 2019), rehearing en banc denied, No. 1D18-4471, 2019 WL 

4019919 (Mem) (Fla. 1st DCA August 27, 2019), rejecting the 
2

motion filed by the Governor and the Florida Department of 

Health, the Florida House of Representatives will not be permitted 

to challenge the temporary injunction entered in this case: 

“Intervention is a dependent remedy in the sense that an 

intervenor may not inject a new issue into the case.” Envtl. 

Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857 So. 2d 

207, 211 (Fla. 1st DCA 2002) (citation omitted), absent further 

review by the supreme court on the order below granting the 

temporary injunction. 

Facts

Article X, section 29 of the Florida Constitution provides that 

the use of medical marijuana by a qualifying patient or caregiver 

is not subject to criminal or civil liability. This section assigns to 

the Florida Department of Health the responsibility of issuing

“reasonable regulations necessary for the implementation and 

enforcement of this section,” stating that “[i]t is the duty of the 

Department to promulgate regulations in a timely fashion.” Art. 

X, § 29(d), Fla. Const. That section requires the Department to 

promulgate procedures for issuing patient identification cards, 

qualifications for caregivers, and the registration of “Medical 

Marijuana Treatment Centers.” Art. X, § 29(d)(1)a-d, Fla. Const. 

The section 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 or marijuana products to 

qualified patients or caregivers. Art. X, § 29(b)(5), Fla. Const. This 

section also provides that “[n]othing in this section shall limit the 

legislature from enacting laws consistent with this section.” Art. 

X, § 29(e), Fla. Const.

In 2017,1 the legislature amended section 381.986, Florida 

Statutes, requiring that “[a] licensed medical marijuana treatment 

center shall cultivate, process, transport, and dispense marijuana 

for medical use.” § 381.986(8)(e), Fla. Stat. (2017). Section 381.986 

also requires the Department to license a specified amount of 

 1 Ch. 2017-232, Laws of Fla. 
3

Medical Marijuana Treatment Centers and describes the 

parameters for this licensing. § 381.986(8)(a)(2), Fla. Stat. (2017).

In December 2017, a group of plaintiffs including Appellee 

Florigrown, LLC, an entity that was denied licensure as a Medical 

Marijuana Treatment Center, filed a complaint against the 

Department’s Office of Medical Marijuana Use and the director of 

that office, the State Surgeon General and Secretary of the 

Department of Health, the Governor, and the State of Florida.2 

The complaint sought injunctive relief, compelling the defendants 

to comply with article X, section 29 of the Florida Constitution, and 

sought declaratory relief to determine whether the new provisions 

of section 381.986, Florida Statutes, were constitutional. 

The complaint alleged that the new legislative parameters for 

the licensing of treatment centers created “multiple classes of 

applicants entitled to special privileges” in the process of receiving 

one of the treatment-center licenses. The complaint alleged that 

the new provisions of section 318.986, Florida Statues, imposed 

limitations on the amount of Medical Marijuana Treatment 

Centers that the Department could register, in violation of article 

X, section 29 of the Florida Constitution. The complaint also 

alleged that new provisions in section 381.986, Florida Statutes, 

constituted an impermissible special law. 

The Appellees moved for a temporary injunction, requesting 

that the defendants be enjoined from registering Medical 

Marijuana Treatment Centers under section 381.986, Florida 

Statutes, and requiring them to register the treatment centers 

pursuant to article X, section 29 of the Florida Constitution. After 

an evidentiary hearing, the trial court denied Appellees’ motion 

without prejudice, finding that while Florigrown had shown a 

substantial likelihood of success on the merits of its claims that the 

Department was not adhering to the Florida Constitution, it could 

not show irreparable harm, as it could apply for a remaining 

treatment-center license. Approximately two months later, the 

court granted Appellees’ motion for temporary injunction. The 

injunction required the Department to cease registering Medical 

 2 The court ultimately granted motions to dismiss the 

Governor and the State. 
4

Marijuana Treatment Centers under section 381.986, Florida 

Statutes, to begin registering centers in accordance with the plain 

language of article X, section 29 of the Florida Constitution, and to 

register Florigrown as a Medical Marijuana Treatment Center. 

This Court affirmed the portion of the injunction requiring the 

Department to consider Florigrown’s request for licensure without 

applying the portions of section 381.986 that conflict with the 

constitution but quashed the portions of the injunction requiring 

the Department to immediately register Florigrown. Fla. Dep’t of 

Health v. Florigrown, LLC, No. 1D18-4471, 2019 WL 2943329 (Fla. 

1st DCA July 9, 2019), rehearing en banc denied (August 27, 2019). 

The House filed a motion to intervene as an additional 

defendant,3 arguing that article X, section 29 of the Florida 

Constitution gave implementing authority to the Department, but 

reserved policymaking authority to the Legislature. The House 

stated that it sought to intervene “to defend the Legislature’s 

prudent effort at striking the necessary, delicate balance between 

implementation of” article, X, section 29 of the Florida 

Constitution and “conflicting federal drug policy.” 

The trial court denied the House’s motion to intervene. The 

court ruled that because any policy enacted by the legislature must 

be constitutional, and thus must comport with article X, section 29 

of the Florida Constitution, the House could not lose any 

policymaking authority as a result of the declaratory action. 

Analysis

This Court reviews the denial of a motion to intervene for an 

abuse of discretion. Litvak v. Scylla Properties, LLC, 946 So. 2d 

1165, 1172 (Fla. 1st DCA 2006). Florida Rule of Civil Procedure 

1.230, which governs interventions, “may be utilized by the 

omitted party if the plaintiff has left out a necessary or proper 

party.” Fla. R. Civ. P. 1.230, Author’s Comment—1967 (emphasis 

added). The House does not dispute that the Department is the 

 3 Twenty-two Florida businesses who either were denied 

licensure as a Medical Marijuana Treatment Center or claimed 

that their applications were “not being processed,” and who argued 

that they were similarly situated to Appellee Florigrown, were 

permitted to intervene as plaintiffs. 
5

only necessary party to the underlying declaratory action. Thus, 

to be permitted to intervene, the House must be a proper party to 

the action. 

“The proper defendant in a lawsuit challenging a statute’s 

constitutionality is the state official designated to enforce the 

statute.” Atwater v. City of Weston, 64 So. 3d 701, 703 (Fla. 1st 

DCA 2011); Haridolopolos v. Alachua Cty., 65 So. 3d 577, 578 (Fla. 

1st DCA 2011) (“A suit challenging the constitutionality of a 

statute must be brought against the state agency or department 

charged with enforcing the statute at issue”).

If a government official or entity is not the enforcing authority 

of a challenged statute, courts must consider two additional factors 

in determining whether that official or entity is a proper party: (1) 

“whether the action involves a broad constitutional duty of the 

state implicating specific responsibilities of the” official or entity, 

and (2) whether official or entity “has an actual, cognizable interest 

in the challenged action.” Scott v. Francati, 214 So. 3d 742, 747 

(Fla. 1st DCA 2017); Marcus v. State Senate for the State, 115 So. 

3d 448, 448 (Fla. 1st DCA 2013) (holding the Florida Senate and 

House of Representatives were not proper defendants in an action 

for declaratory judgment where “[n]either legislative body has 

been designated as the enforcing authority” of the challenged 

statute and the action did not “involve a duty or responsibility of 

the State implicating specific responsibilities of” either legislative 

body); see also Nat’l Wildlife Fed’n, Inc. v. Glisson, 531 So. 2d 996, 

997 (Fla. 1st DCA 1988) (“‘Anyone claiming an interest in pending 

litigation may at any time be permitted to assert his right by 

intervention . . . ’” (quoting Fla. R. Civ. P. 1.230)). 

The House argues that although it is not the entity tasked 

with enforcing the challenged statute, article X, section 29 of the 

Florida Constitution also states that nothing therein “shall limit 

the legislature from enacting laws consistent with” that section. 

Thus, the House asserts it has an interest in preserving this 

authority such that it should be permitted to intervene.

Article III, section 1 of Florida Constitution vests the

legislative power of the State to the legislature. “In matters of 

state policy and law making, the Legislature has plenary powers, 

limited only by the Constitutions of the state of Florida and of the 
6

United States.” Charlotte Harbor & N. Ry. Co. v. Welles, 78 Fla. 

227, 234 (Fla. 1919). “The Legislature has a great deal of 

discretion in determining what measures are necessary for the 

public's protection,” and this discretion extends to the regulation 

of marijuana. Hamilton v. State, 366 So. 2d 8, 10 (Fla. 1978). 

Article X, section 29 expressly reserves to the legislature the 

authority to enact laws consistent with that section. The 2017 

revisions to section 381.396, Florida Statutes, represent the 

legislature’s attempt to exercise its discretion within the new 

bounds created by the constitution. The declaratory action into 

which the House seeks to intervene will determine whether the 

legislature acted permissibly within these new constitutional 

limitations. The House has an actual cognizable interest in such 

an action, which will define the scope of its constitutional authority 

to police certain narcotics. 

This interest is particularly vital considering that the conduct 

authorized by article X, section 29 of the Florida Constitution is 

prohibited by federal law. 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). In addition, 

some studies have indicated that habitual use of cannabis may 

cause violent and criminal behavior as a result of changes in brain 

function: 

However, 20% of the boys who started using pot by 

age 18 continued to use it through middle age (32-48 

years). One fifth of those who were pot smokers (22%) 

reported violent behavior that began after beginning to 

use cannabis, whereas only 0.3% reported violence before 

using weed. Continued use of cannabis over the lifetime 

of the study was the strongest predictor of violent 

convictions, even when the other factors that contribute 

to violent behavior were considered in the statistical 

analysis.

In conclusion, the results show that continued 

cannabis use is associated with a 7-fold greater odds for 
7

subsequent commission of violent crimes. The level of risk 

is equivalent to the increased risk of lung cancer from 

smoking cigarettes over a similar duration (40 years).

R. Douglas Fields, Ph.D, Marijuana Use May Increase Violent 

Behavior, PSYCHOLOGY TODAY (March 20, 2016), 

https://www.psychologytoday.com/us/blog/the-new 

brain/201603/marijuana-use-may-increase-violent-behavior

(emphasis added). Additionally, a 2016 study, conducted by 

researchers from King’s College of London and University of South 

Florida, concluded that cannabis use can predict the commission 

of subsequent violent offending, suggesting a possible causal effect. 

See Tabea Schoeler, MSc, et al., Continuity of Cannabis Use and 

Violent Offending Over the Life Course, 46 Psychological 

Medicine1663 (2016). Further, the United States Surgeon General 

published an advisory on August 29, 2019, warning that, because 

marijuana binds receptors in the brain that are critical for 

development, marijuana presents a high risk to adolescents; the 

Surgeon general stated that “[n]o amount of marijuana use during 

pregnancy or adolescence is known to be safe.” Surgeon General 

VADM Jerome Adams, U.S. Surgeon General’s Advisory: 

Marijuana Use and the Developing Brian, 

https://www.hhs.gov/surgeongeneral/reports-andpublications/addiction-and-substance-misuse/advisory-onmarijuana-use-and-developing-brain/index.html (last visited 

August 29, 2019). 

The legislature has the authority and responsibility to protect 

the public from harm by regulating the availability of a controlled 

substance that the federal government has determined is not safe 

for medical use, is susceptible to abuse, and presents a harm to the 

public. The underlying declaratory action challenges the manner 

in which the legislature has attempted to exercise its broad 

constitutional authority to enact policies to protect the public. 

Thus, the legislature has a clear and actual cognizable interest in 

defending this challenge.

In its order denying the House’s motion to intervene, the trial 

court acknowledged a legislative interest in the underlying action 

discrete from the executive’s authority, stating that “[t]he 

Legislature has absolutely no authority to either intrude on or 
8

attempt to marginalize the responsibilities of the executive branch 

that are specifically enumerated in [article X, section 29 of the 

Florida Constitution].” By positioning the executive and 

legislative branches against one another, the trial court should 

have recognized that the legislature had a cognizable interest in 

the action distinct from the executive. 

Article X, section 29 of the Florida Constitution institutes a 

dramatic sea change in the regulation of marijuana in Florida. The 

new provisions of section 381.986 demonstrate the legislature’s 

attempt to navigate these changes. The trial court abused its 

discretion in denying the House’s motion to intervene. 

We reverse and remand with instructions to permit the House 

to intervene as a defendant in the proceeding. We note that upon 

intervention “[a]n intervenor must accept the record and pleadings 

as he finds them and cannot raise new issues, although he may 

argue the issues as they apply to him as a party.” Glisson, 531 So. 

2d at 998. 

REVERSED and REMANDED.

MAKAR, J., concurs in result and concurs in part with opinion;

OSTERHAUS, J., concurs in result with opinion.

_____________________________

Not final until disposition of any timely and 

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

9.331.

_____________________________

MAKAR, J., concurring in result and concurring in part.

At issue is whether the Florida House of Representatives has 

a sufficient legal interest to intervene as an additional partydefendant in a challenge to the constitutionality of section 

381.986(8)(e), Florida Statues, which relates to the organizational 
9

structure of medical marijuana treatment centers.1 The answer 

seems clear but is muddled a bit by a few complications.

First, the House was on the sidelines and waited close to a 

year to intervene, moving to do so rapidly only after the trial court 

had issued a temporary injunction against the Department’s 

enforcement of the statute, holding that the plaintiffs had 

established a substantial likelihood of success on the merits. The 

trial judge was troubled that the House sought to join the litigation 

after the primary legal battle had already been lost; and he felt it 

odd that the House, which frequently seeks to not be a partydefendant in other civil cases, wanted to accept that responsibility 

in this case under the existing circumstances. 

Both those sentiments are understandable, but countervailing 

factors ameliorate those concerns. The first of which is that the 

House, if allowed to intervene, would not be able to change the 

parameters of the litigation on its own. Nat’l Wildlife Fed’n Inc. v.

Glisson, 531 So. 2d 996, 998 (Fla. 1st DCA 1988) (“An intervenor 

must accept the record and pleadings as he finds them and cannot 

raise new issues, although he may argue the issues as they apply 

to him as a party.”). Instead, the House’s intervention would be 

subordinated to the ongoing litigation absent a ruling to the 

contrary by the trial court. Fla. R. Civ. P. 1.230 (“Anyone claiming 

an interest in pending litigation may at any time be permitted to 

assert a right by intervention, but the intervention shall be in 

subordination to, and in recognition of, the propriety of the main 

proceeding, unless otherwise ordered by the court in its 

discretion.”). Granting intervention would give the House a seat at 

the litigation table, albeit without a host’s authority to alter the 

 1 The statute states that a “licensed medical marijuana 

treatment center shall cultivate, process, transport, and dispense 

marijuana for medical use,” which parallels to some degree the 

definition of so-called Dispensing Organizations (DOs) that—

under pre-amendment medical marijuana laws—were required to 

be vertically integrated (i.e., they must perform every function in 

the production, processing, distributing, and retail sale of medical 

cannabis). Floridians, however, rejected this structure in adopting 

the medical marijuana amendment, using an or rather than and 

in replacing DOs with newly-defined medical marijuana treatment 

centers. See art. X, § 29(b)(5), Fla. Const.
10

menu or the order of courses absent judicial permission. 

Intervention—even after preliminary relief had already been 

granted—would not disturb the orderly final adjudication of this 

important case; a lot of plaintiffs were allowed to intervene late in 

the game, making it all the more important that the House be 

given at least equivalent treatment in the final adjudicative 

process. 

Had the House waited until entry of final judgment, of course, 

intervention would be disfavored. Williams v. Nussbaum, 419 So. 

2d 715, 717 (Fla. 1st DCA 1982) (“As a general rule, it is too late to 

apply for intervention after a final decree has been entered. 

However, intervention should be permitted at such a time if the 

interests of justice require it.”). Waiting and seeking to intervene 

only after an injunction is entered, while a potentially dicey 

strategy, should not preclude the House from intervening without 

delay or disruption of the proceedings, which the trial court can 

closely control and limit in scope. Glisson, 531 So. 2d at 998 

(intervention upheld where trial set approximately 6 months later 

and subsequently rescheduled; movants “assure[d] the court that 

their desire to intervene would not delay or disrupt the 

proceedings.”).

The trial court was also puzzled about why the House wanted 

to accept the responsibility of party-defendant status in this 

constitutional challenge. Ordinarily, the legislative branch is not a 

necessary party in litigation challenging the constitutionality of a 

statute, which is why the House and Senate frequently seek to 

extricate themselves as parties from this type of litigation based 

on the general rule that the “proper defendant in a lawsuit 

challenging a statute's constitutionality is the state official 

designated to enforce the statute.” Atwater v. City of Weston, 64 So. 

3d 701, 703 (Fla. 1st DCA 2011). Which is not to say that 

legislators and the Governor “are improper parties in all

declaratory actions challenging the constitutionality of legislative 

or executive acts.” Id. at 704 (emphasis added). Indeed, they are 

necessary parties in some cases and permissible parties in others.

The House of Representatives is no ordinary litigant, making 

its desire to intervene and accept the benefits and burdens of party 

status in this litigation a significant step. Its role, even if limited 

to the case’s existing legal parameters, is of great importance, 
11

particularly given the subtle, if not subliminal, institutional 

tensions between the executive and legislative branches at play in 

this case. Not so subtle is the constitutional authority the people

granted to the Department of Health, an executive branch agency, 

to effectuate the production, distribution and sale of medical 

marijuana in a safe manner, a grant of power that diminished the 

legislative branch’s otherwise plenary authority on this topic. This 

grant of power, however, is offset by the recognition that the 

Legislature may pass laws that are consistent with the medical 

marijuana amendment: borne thereby was a delicate political 

waltz between the executive and legislative branches as to the 

relative powers of each in the field of medical marijuana. 

More subtle is the question of who, between the Department 

and the legislative branch, is in charge of the defense in this 

litigation. Consistent with the general rule, the Department—as 

the agency designated to implement the medical marijuana laws 

in question—has been the sole and principal party-defendant since 

the onset of the litigation in December 2017. That does not mean 

that the Department’s constitutional powers, set forth in the 

medical marijuana amendment, will necessarily fully align with 

the Legislature’s constitutional power to enact legislation 

consistent with the amendment. The Department’s litigation goals 

in this case potentially may dovetail with those of the legislative 

branch, making intervention by the House or Senate duplicative 

or unnecessary (as the trial judge believed). But potential changes 

in litigation priorities and interpretive tensions can alter the 

balance and require modifications, such as occurred when the U.S. 

Department of Justice announced it would not defend the 

constitutionality of the Defense of Marriage Act, resulting in the 

House of Representatives intervening with private counsel to do 

so. See Memorandum of Points and Authorities in Support of the 

Unopposed Motion of the Bipartisan Legal Advisory Group of the 

U.S. House of Representatives to Intervene for a Limited Purpose, 

Windsor v. U.S., No. 1:10-cv-8435 (BSJ) (JCF) (S.D.N.Y. Apr. 18, 

2011), 2011 WL 3164126 (unopposed motion of bipartisan advisory 

group of U.S. House of Representatives to intervene as party 

defendant to defend DOMA on equal protection grounds).

Different priorities and inter-branch tensions exist in this 

case. Here, counsel for the House told the trial judge that it sought 

intervention to defend its legislative powers and that, although the 
12

Department’s lawyers were “doing a fine job defending the 

Department of Health,” a “separation in interest in part” existed 

between the two. For example, House counsel said the Department 

“potentially or I think actually has taken the position in the past 

that without the statute or without legislative involvement, the 

Department . . . still would have the authority to make substantive 

rules or constitutional regulations to regulate the entry. The 

House takes the position that that’s not true” because the medical 

marijuana amendment did not grant the Department 

“policymaking authority.” Though made aware that a conflict of 

legal positions existed between the Department and the House, the 

trial judge denied intervention, saying he was “sure the House is 

fully capable of giving guidance to the Department of Health as to 

proceedings in the case,” which was inaccurate. Instead, the 

unique tension between the Department and the House as to 

each’s respective powers made it all the more important that the 

House be heard.2

One needn’t conclude that “the Legislature’s basic 

constitutional power to legislate appears now to be imperiled” 

to see that intervention should have been granted under the 

circumstances. In a sense, the Legislature’s basic constitutional 

power to legislate is always altered whenever a substantive 

amendment is made to the Florida Constitution. Additions to 

the state constitution—such as those dealing with a minimum 

wage, smoke-free workplaces, maximum class sizes, and even 

the cruel and inhumane treatment of pregnant pigs—each 

displaced the Legislature’s basic constitutional power to 

legislate on such topics to some degree and do not violate the 

single subject rule for citizens’ initiatives. In re Advisory Op. to

Att’y Gen. re Use of Marijuana for Debilitating Med. Conditions, 

181 So. 3d 471, 478 (Fla. 2015) (“[T]he fact that [a] branch of 

 2 This tension perhaps was heightened by the October 24, 

2018, announcement of then-candidate Ron DeSantis that he 

would “finish implementing Florida’s medical marijuana 

constitutional amendment so sufferers of chronic pain have 

access to an alternative to the use of opioids.” Help Floridians 

Struggling with Opioid Addiction, RON DESANTIS: SECURING 

FLORIDA’S FUTURE, https://rondesantis.com/healthcare/ (last 

visited Sept. 10, 2019).
13

government is required to comply with a provision of the Florida 

Constitution does not necessarily constitute the usurpation of the 

branch's function within the meaning of the single subject rule.”)

(alteration in original) (citing Advisory Op. to Att’y Gen. re Protect

People, Especially Youth, From Addiction, Disease, & Other Health

Hazards of Using Tobacco, 926 So. 2d 1186, 1192 (Fla. 2006)).

These types of constitutional amendments, which reflect the 

political will of Floridians, become super-statutes that restrict 

legislative powers in the same way as other limitations set forth in 

the state constitution; they cannot be changed by statute.3

The medical marijuana amendment is no different—it 

displaced, but did not imperil, basic legislative powers. That’s 

particularly true when one considers the medical marijuana 

amendment explicitly acknowledges the Legislature’s role to 

enact laws consistent with the amendment’s language. Art. X, 

§ 29(e), Fla. Const. (“(e) Legislation. Nothing in this section shall 

limit the legislature from enacting laws consistent with this 

section.”). Rather than imperil, the medical marijuana 

amendment embraces legislative action consistent with its 

purpose; indeed, the vast bulk of medical marijuana legislation 

has not been challenged as being inconsistent with the 

 3 Judge Osterhaus, who claims the panel’s opinion affirming 

the injunction in this case has “downgraded” legislative power, 

ignores this point. The injunction panel unanimously held that the 

plaintiffs were likely to succeed on their claim that the legislature’s 

use of and in section 381.986(8)(e) directly conflicts with the 

medical marijuana amendment’s use of or in defining medical 

marijuana treatment centers. And and or have very different 

meanings. Indeed, the constitution was amended in 1998 to change 

the prohibition against “cruel or unusual punishment” to a 

prohibition against “cruel and unusual punishment,” a change 

that “raise[d] the bar on the part of a defendant by requiring proof 

of both prohibitions rather than one or the other.” See Art. I, § 17, 

Fla. Const. (commentary to 1998 amendment). The legislature can 

no more change the or in the medical marijuana amendment to 

and by statute than change the and in the constitutional 

prohibition on “cruel and unusual punishment” to an or. The same 

could be said for any number of constitutional provisions, e.g., 

increasing maximum class sizes in the constitution by statute. 
14

amendment. See §§ 381.986, .987, .988 & .989, Fla. Stat.4

Because it explicitly acknowledges the Legislature’s power to 

enact laws consistent with the constitution, it is unsurprising 

that our supreme court concluded that the medical marijuana 

“amendment does not substantially alter or perform the functions 

of multiple branches” nor does it “have a substantial impact on 

legislative functions or powers.” In re Advisory Op. to Att’y Gen. re 

Use of Marijuana for Debilitating Med. Conditions, 181 So. 3d at

477 (emphasis added). Had the amendment left no room for 

legislation, or created a “fourth branch” of government, it would 

not have made the ballot. In re Advisory Op. to the Att’y Gen.-Save

Our Everglades, 636 So. 2d 1336, 1340 (Fla. 1994) (“Viewed in its 

entirety, the initiative creates a virtual fourth branch of 

government with authority to exercise the powers of the other 

three on the subject of remedying Everglades pollution.”). That 

said, the House needn’t show its basic constitutional powers are 

imperiled to belatedly intervene in this litigation.

In conclusion, the Florida House of Representatives should 

have been allowed to intervene in this proceeding, a result in which 

I concur. Though I do not join Judge Thomas’s opinion, I concur in 

those parts holding that the House had a separate and distinct 

interest in this case apart from the Department of Health that 

supported intervention, that it had an actual, cognizable interest 

in the proceedings, and that it must accept the record and 

pleadings as they exist and not raise new issues after intervention.

OSTERHAUS, J., concurring in result. 

 4 Section 381.986 alone is ponderous, comprising 

approximately 40 single-spaced pages and over 13,000 words 

setting forth definitions, standards, procedures and regulatory 

programs governing the medical use of marijuana, including 

subsections on qualifying medical conditions, qualifications for 

physicians and medical directors, physician certification, a medical 

marijuana use registry, caregiver registration, identification 

cards, medical marijuana treatment centers (almost half the entire 

section), inspections/administrative actions, preemption, 

penalties, unlicensed activity, exceptions, and fines/fees. Only a 

few of its provisions are at issue in this litigation.
15

I concur with the holding that the House may intervene as a 

defendant. See Fla. R. Civ. P. 1.230 (providing that “[a]nyone 

claiming an interest in pending litigation may at any time be 

permitted to assert his right by intervention”). This case raises 

important issues involving the role of the Legislature within the 

constitutional structure of our state government. The rulings in 

this case—including the temporary injunction decision of this 

court—appear to have downgraded the Legislature’s work and its 

constitutional authority to legislate below that of the executive 

agency. The Florida Supreme Court did not recognize the 

amendment, article X, section 29 of the Florida Constitution, to 

have this effect. See In re Advisory Opinion to the Att’y. Gen. re Use 

of Marijuana for Debilitating Med. Conditions, 181 So. 3d 471, 477 

(Fla. 2015 (determining that “[i]f the proposed amendment passes, 

the Department of Health would perform regulatory oversight, 

which would not . . . have a substantial impact on legislative 

functions or powers”). Because the Legislature’s basic 

constitutional power to legislate appears now to be imperiled, the 

House quite obviously satisfies the legal threshold for 

intervention.

_____________________________

Adam Scott Tanenbaum, General Counsel, Joseph Michael Maida, 

Assistant General Counsel, Tallahassee, for Appellant.

Ari H. Gerstin of Akerman LLP, Miami; Katherine E. Giddings 

and J. Martin Hayes of Akerman LLP, Tallahassee; Jonathan S. 

Robbins of Akerman LLP, Fort Lauderdale; Jason B. Gonzales of 

Shutts & Bowen, LLP, Tallahassee; Luke Lirot of Luke Lirot, P.A., 

Clearwater; for Appellees.