Florida Department of Health v. Joseph Redner, an individual

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D18-1505
_____________________________

FLORIDA DEPARTMENT OF
HEALTH,

Appellant,

v.

JOSEPH REDNER, an individual,

Appellee.
_____________________________

On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

April 3, 2019

PER CURIAM.

This appeal concerns whether Article X, section 29 of the
Florida Constitution authorizes a qualified patient to cultivate and
process marijuana for his own medical use under state law. Mr.
Redner convinced the trial court that the Florida Constitution
granted him this authority. We find no such authorization and
reverse.

Because this Court has been asked to interpret a
constitutional provision, our review is de novo. Lewis v. Leon Cty.,
73 So. 3d 151, 153 (Fla. 2011). When we interpret constitutional
provisions, we generally follow the same rules that govern
statutory interpretation. Brinkmann v. Francois, 184 So. 3d 504,
509 (Fla. 2016). We begin our interpretation by examining the
language used in the constitution, and if that language is clear,
unambiguous, and addresses the question at issue, we must
enforce the provision as written. Graham v. Haridopolos, 108 So.
3d 597, 603 (Fla. 2013). When “construing multiple constitutional
provisions addressing a similar subject, the provisions must be
read in pari materia to ensure a consistent and logical meaning
that gives effect to each provision.” Zingale v. Powell, 885 So. 2d
277, 283 (Fla. 2004) (internal quotations omitted).

Both parties argue that the plain language of the constitution
supports their position. Article X, section 29 of the Florida
Constitution states in relevant part:

(a) PUBLIC POLICY.

(1) The medical use of marijuana by a qualifying patient
or caregiver in compliance with this section is not subject
to criminal or civil liability or sanctions under Florida
law.

....

(3) Actions and conduct by a Medical Marijuana
Treatment Center registered with the Department, or its
agents or employees, and in compliance with this section
and Department regulations, shall not be subject to
criminal or civil liability or sanctions under Florida law.

(b) DEFINITIONS. For purposes of this section, the
following words and terms shall have the following
meanings:

....

(2) “Department” means the Department of Health or
its successor agency.

....

(4) “Marijuana” has the meaning given cannabis in
Section 893.02(3), Florida Statutes (2014), and, in
addition, “Low-THC cannabis” as defined in Section
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 381.986(1)(b), Florida Statutes (2014), shall also be
included in the meaning of the term “marijuana.”

(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.

(6) “Medical use” means the acquisition, possession,
use, delivery, transfer, or administration of an amount of
marijuana not in conflict with Department rules, or of
related supplies by a qualifying patient or caregiver for
use by the caregiver’s designated qualifying patient for
the treatment of a debilitating medical condition.

In 2014, section 893.02(3) stated:

(3) “Cannabis” means all parts of any plant of the genus
Cannabis, whether growing or not; the seeds thereof; the
resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or
preparation of the plant or its seeds or resin. The term
does not include “low-THC cannabis,” as defined in s.
381.986, if manufactured, possessed, sold, purchased,
delivered, distributed, or dispensed, in conformance with
s. 381.986.

Mr. Redner argues, and the trial court held, that because Mr.
Redner was a qualified patient, he had the right to possess and use
marijuana, which included the whole growing plant and seeds. He
argues the right to possess and use the whole growing plant and
seeds includes the right to cultivate and process his own
marijuana. This interpretation of section 29 is not supported by
the plain language of the constitution and renders portions of the
constitution meaningless. In addition, this interpretation ignores
the detailed framework set forth by the drafters to establish the

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role that MMTCs play in producing and distributing medical
marijuana and to provide for the regulation of those MMTCs.

Mr. Redner’s argument is not supported by the plain language
of section 29, which provides qualified users (like Mr. Redner) with
immunity from criminal or civil liability under Florida law for the
“medical use of marijuana” that is “in compliance” with the
amendment (emphasis added). Qualified users are permitted to
acquire, possess, use, deliver, transfer, and administer marijuana
in amounts that do not conflict with the Department’s rules. Mr.
Redner argues that the term “use” contained in the medical use
definition permits him to cultivate and process marijuana. The
term “use” is not defined by the amendment. However, it is clear,
when one examines the entire amendment, that “use” does not
mean “grow” or “process,” as Mr. Redner argues.

In examining section 29 as a whole, we must recognize the
distinctions made by the drafters between the activities permitted
to be performed by MMTCs and the activities permitted to be
performed by qualified patients. We must also recognize the role
the drafters gave to MMTCs to play in the production and
distribution of medical marijuana. The framers explicitly
authorized MMTCs to cultivate, process, and distribute medical
marijuana. Art. X, § 29(b)(5), Fla. Const. Unlike the express
language concerning MMTCs, there is no explicit language
authorizing qualified patients to grow, cultivate, or process
marijuana. Had the drafters intended for qualified patients to be
able to cultivate or process medical marijuana, that language
would have been included in the definition of medical use; it was
not.

When we read the constitutional provisions, as a whole, we
find that the language of section 29 is clear, unambiguous, and
addresses the issue on appeal. A qualified patient’s ability to use
and possess marijuana does not include authorization to grow,
cultivate, and/or process marijuana. Article X, section 29 of the
Florida Constitution only authorizes MMTCs to grow, cultivate,
and process marijuana for qualified patients.

We are further convinced that our interpretation is correct
based upon the duties conferred upon the Department in section
29, which states:
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(d) DUTIES OF THE DEPARTMENT. 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:

a. Procedures for the issuance and annual renewal
of qualifying patient identification cards to people with
physician certifications and standards for renewal of such
identification cards. Before issuing an identification card
to a minor, the Department must receive written consent
from the minor’s parent or legal guardian, in addition to
the physician certification.

b. Procedures establishing qualifications and
standards for caregivers, including conducting
appropriate background checks, and procedures for the
issuance and annual renewal of caregiver identification
cards.

c. Procedures for the registration of MMTCs that
include procedures for the issuance, renewal, suspension
and revocation of registration, and standards to ensure
proper security, record keeping, testing, labeling,
inspection, and safety.

d. A regulation that defines the amount of
marijuana that could reasonably be presumed to be an
adequate supply for qualifying patients’ medical use,
based on the best available evidence. This presumption
as to quantity may be overcome with evidence of a
particular qualifying patient’s appropriate medical use.

....

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 (e) LEGISLATION. Nothing in this section shall limit
the legislature from enacting laws consistent with this
section.

Subsection (d)(1)c. states that the Department shall set
standards to ensure that MMTCs are providing safe marijuana,
securing their marijuana, testing and inspecting their marijuana,
and accounting for their marijuana. Subsection (d) does not confer
this type of authority to the Department over qualified patients.
At oral argument, Mr. Redner argued that the broad statement
contained in subsection (d) about the purpose of the regulation
conferred authority on the Department to ensure that qualified
patients secured and accounted for their marijuana. Mr. Redner’s
interpretation would render the enumerated subparagraphs
contained in subsection (d)(1)d. containing the regulations the
Department was tasked with developing superfluous. Because we
are forbidden from interpreting constitutional provisions in such a
manner, we find Mr. Redner’s argument unpersuasive.

Even if we found the language contained in section 29 unclear
and/or ambiguous, we would still hold that the constitution does
not allow a qualified patient to grow, cultivate, and process
marijuana. If a constitutional provision is ambiguous or does not
address the issue raised, a court must construe the constitutional
provision in a manner that is consistent with the intent of the
framers and voters. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d
1, 9 (Fla. 2012). If an ambiguity exists, courts should look to the
rules of statutory construction, which may include the purpose and
legislative history in order to construe the provision in a manner
consistent with the intent of the framers and voters. Id.

With this framework in mind, we first look at the purpose of
section 29. The only purpose stated in section 29 is the
implementation of regulations that ensure the availability and
safe use of medical marijuana. The amendment provides the
Department with the duty (and ability) to regulate the cultivation
practices of MMTCs. The amendment does not provide the same
authority to the Department concerning qualified patients.
Without the ability to regulate the cultivation practices of qualified
patients, the Department would not be able to ensure that
qualified patients are safely using marijuana.

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 We also look to the ballot summary to determine the purpose
of the amendment and the will of the voters because a ballot
summary provides the purpose of the amendment and has to
present the scope of an amendment in order to be valid. See
Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So. 2d 798,
804 (Fla. 1998) (if a ballot summary does not accurately describe
the scope of the amendment, then it fails to accurately describe the
purpose of the amendment). The Florida Supreme Court found the
ballot summary for Article X, section 29 of the Florida Constitution
fairly informed the voters of the purpose of the proposed
amendment. In re Advisory Op. to Att’y Gen. re Use of Marijuana
for Debilitating Med. Conditions, 181 So. 3d 471, 478-79 (Fla.
2015). The ballot summary read as follows:

Allows medical use of marijuana for individuals with
debilitating medical conditions as determined by a
licensed Florida physician. Allows caregivers to assist
patients' medical use of marijuana. The Department of
Health shall register and regulate centers that produce
and distribute marijuana for medical purposes and shall
issue identification cards to patients and caregivers.
Applies only to Florida law. Does not immunize violations
of federal law or any non-medical use, possession or
production of marijuana.

Id. at 476. There is no language contained in the ballot summary
that would have allowed the voters to surmise that the passing of
this amendment would permit qualified patients to cultivate and
process their own medical marijuana. Therefore, Mr. Redner’s
position is not consistent with the purpose of the amendment or
the will of the voters.

Based on the foregoing, we find that the Florida Constitution
does not allow qualified patients and caregivers to grow, cultivate,
and/or process their own marijuana. Accordingly, we REVERSE and
REMAND this cause to the trial court to enter judgment for the
Department.

WETHERELL and MAKAR, JJ., and BRASINGTON, MONICA J.,
ASSOCIATE JUDGE, concur.

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 _____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

Jason B. Gonzalez, Rachel E. Nordby, and Amber Stoner Nunnally
of Shutts & Bowen, LLP, Tallahassee, for Appellant.

Luke Lirot of Luke Charles Lirot, P.A., Clearwater, and Amanda
L. Derby-Carter of Werksman Jackson Hathaway & Quinn LLP,
Los Angeles, CA, for Appellee.

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