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Court of Appeal Confirms Medical Marijuana Licensing Statute Unconstitutional

The Florida First District Court of Appeal issued an Order in the Florigrown case on Tuesday August 27, 2019, denying the Department of Health’s motion for en banc review, and certifying the case as a question of great importance to the Florida Supreme Court.

The operative effect of this order is that the original ruling upholding the injunction and striking down vertical integration stands, unless the Department appeals to the Florida Supreme Court.  Five judges recused themselves from opining, and the decision was a split, 4 to 4 of the remaining judges.  When there is a split en banc, the original decision stands.

Of note, in the concurring opinion, the court found that Amendment 2 is self-executing, meaning the legislature may but is not required to enact laws to implement it.  The court further found that the department has broad constitutional powers to implement the Amendment without the assistance of the legislature.  Although the court did not impose a stay or provide a timeline for the issuance of regulations by the department, it noted that it was confident stays would be put in place to allow adequate time to develop a regulatory structure for horizontal integration.  However, as noted by the dissent, the injunction itself did not provide such “reasonable time to implement,” and ordered the department to immediately issue additional licenses.  As in the original order from the court of appeal, this opinion is silent as to the issue of licensure caps under a horizontal regulatory platform.

The department has an appeal as of right to the Florida Supreme Court, and such an appeal would invoke an automatic stay.  However, the department also asked for the question to be certified as one of great importance, which if this is the basis for the request for appeal, would implement the court’s discretionary jurisdiction, would not provide for an automatic stay, and may allow the court to deny review.

Of further note, the court has yet to rule on the House of Representative’s motion to intervene.  If the decision denying intervention is reversed, it is unclear whether or not the House, as an intervenor, has standing to continue the appeal in the shoes of the department.

A link to the Order can be found here.

For more information please contact our partner Nichole Geary.

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