Filing # 64457145 E-Filed 11/21/2017 10:06:57 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA

CASE NO.:

Bills Nursery, Inc., a Florida Corporation, and

Michael Bowen, an individual,

Plaintiffs,

v.

The FLORIDA DEPARTMENT OF HEALTH,

an agency of the state of Florida; CELESTE
PHILIP, Floridas Surgeon General, in her
official capacity; and Christian Bax, Director of
the Office of Medical Marijuana Use, in his
official capacity.

Defendants.
/

COMPLAINT
This is in action brought by Plaintiffs against Floridas Department of Health and certain

Florida officials that seeks to remedy numerous violations of Floridas Constitutional Medical

Marijuana Amendment and Medical Use of Marijuana Act. The Plaintiffs in this case are Bills

Nursery Inc., an intended applicant for a license to cultivate, process and dispense medical

marijuana pursuant to Florida law, and Michael Bowen, an individual who relies on medical

marijuana to prevent and treat his epileptic seizures. Under Florida law, Defendants are required

to license sufficient medicinal marijuana treatment centers (MMTCs) to ensure that sick patients

have access to this medication. The Florida legislature specifically required the Department of

Health to license ten additional MMTCs by October 3, 2017. Despite these clear constitutional and

statutory directives, Defendants have failed to act as required by law. Specifically, as of November

20 2017, they have licensed only six of the ten MMTCs required by October 3, 2017. Indeed, the
Defendants have halted all efforts to comply with the requirement, including refusing to accept

and consider applications for the additional four licenses (reaching a total of ten additional

MMTCs). These violations form the basis of this complaint for writ of mandamus, declaratory

relief and permanent mandatory injunction.

JURISDICTION
1. Jurisdiction in this Court is proper under Art. 5 5 and Art. 10 29 of the Florida

Constitution, 86.011, Fla. Stat., and Rule 1.630, Florida Rules of Civil Procedure, because this

is a civil action for writ of mandamus, injunctive and declaratory relief arising from the Florida

Department of Healths violations of the Florida Constitution, Art. 10 29, and 381.986, Fla. Stat.

2. All conditions precedent to this action have been met, sustained, or waived by the

actions of Defendant as alleged herein.

VENUE
3. Venue is proper in this Court pursuant to Laws 2017, c. 2017-232, 14 that provides

for venue in Leon County, and pursuant to 47.011 Fla. Stat. as Defendants reside there.

PARTIES
4. Plaintiff, Bills Nursery Inc. (Bills) is a Florida corporation with its principal

place of business in Miami-Dade County, Florida. Bills is a plant nursery that applied for a license

to become a Medicinal Marijuana Dispensing Organization in 2015. The Florida Department of

Health (DOH) denied Bills application using a scoring method later found to be arbitrary and

capricious by administrative law judge, John Van Laningham in Plants of Ruskin et. al., v.

Department of Health Case. No. 17-0116, 2017 WL 2333315, at *1. Bills is prepared to and

intends to reapply for a license to become a Medical Marijuana Treatment Center (MMTC)

under Florida Constitution Art. 10 29 and 381.986 Fla. Stat.

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 5. Plaintiff, Michael Bowen is a Florida citizen that suffers from epilepsy and requires

medicinal marijuana to prevent his seizures. Without adequate access to this medication, his life

is at risk.

6. Defendant, The Florida DOH is an executive agency of the State of Florida. The

Florida Constitution charges the DOH with the duty to promulgate regulations in a timely

fashion that ensure the availability . . . of medical marijuana and that provide procedures for

the registration of MMTC . . . . Fla. Const. Art. 10, 29.

7. Defendant, Dr. Celeste Philip, in her official capacity as Floridas Surgeon General,

is the head of the DOH. See Fla. Stat. 20.43.

8. Defendant, Mr. Christian Bax in his official capacity, is the Director of the DOHs

Office of Medical Marijuana Use (OMMU). Pursuant to Fla. Stat. 385.212, the OMMU shall

administer and enforce s. 381.986.

GENERAL ALLEGATIONS
Florida Law
9. In recent years, Florida has amended its Constitution and passed various other laws

to provide safe access to medicinal marijuana.

Compassionate Medical Cannabis Act of 2014

10. In 2014, the Compassionate Medical Cannabis Act was signed into law. This act

ordered the DOH to issue five Dispensing Organization licenses for the cultivation and distribution

of low tetrahydrocannabinol (THC) medicinal marijuana for patients suffering from cancer or

seizures.

11. The DOH promulgated regulations delineating an application process which

resulted in approximately twenty-two plant nurseries submitting applications. The DOH awarded

seven Dispensing Organization licenses.

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Right to Try Act of 2016

12. In 2016, the Florida Legislature expanded Florida citizens right to medicinal

marijuana by passing the Right to Try Act, which allowed patients suffering from terminal illnesses

access to full potency medical marijuana.

Constitutional Amendment to Allow Medical Marijuana

13. On November 8, 2016, Florida voters passed The Florida Medical Marijuana

Legalization Initiative (Amendment 2) with an overwhelming super-majority of 71% of the vote,

which created Article 10, section 29 of the Florida Constitution. Amendment 2 expanded the list

of eligible patients beyond those authorized in the Right to Try Act. The amendment provided that

low-THC and full-potency medical marijuana would now be available to a larger group of patients

suffering from specified Debilitating Medical Conditions, like Multiple Sclerosis, Epilepsy,

Crohns Disease, and AIDS.

14. Pursuant to this amendment, Floridas constitution requires the DOH to issue

regulations that provide for the licensing of MMTCs to ensure the availability and safe use of

medical marijuana by qualifying patients. Fla. Const. Art. X, 29. The Constitution imposes

hard deadlines:

a. By July 3, 2017, the DOH must promulgate regulations that provide for

[p]rocedures for the registration of MMTCs that include procedures for the

issuance . . . of registration . . . . Id.

b. By October 3, 2017, the DOH shall begin . . . registering MMTC . . . . Id.

15. Furthermore, the Constitution provides that [i]f the Department does not issue

regulations, or if the Department does not begin . . . registering MMTCs within the time limits set

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in this section, any Florida citizen shall have standing to seek judicial relief to compel compliance

with the Departments constitutional duties. Id.

Medical Use of Marijuana Act

16. In 2017, the Florida Legislature amended 381.986, Fla. Stat., to implement

Amendment 2.

17. The law directs the DOH to license ten additional MMTCs by October 3, 2017 in

order to ensure sufficient supply to meet the medical needs of Florida patients. See Fla. Stat.

381.986(8)2.a.-c.

18. Fla. Stat. 381.986 dictates how some of those ten licenses should be awarded.

a. First, the DOH was ordered to give a license to any applicant who had applied

under the 2014 regime, was denied a license, and had either (i) an administrative

or judicial challenge pending as of January 1, 2017, or (ii) had a final ranking

within one point of the highest final ranking in its region under the 2014 regime.

b. Second, the DOH was ordered to give one of the additional ten (10) licenses to

an applicant that was both (i) a class member of Pigford v. Glickman or In Re

Black Farmers Litigation, and (ii) who was also a member of the Black Farmers

and Agriculturalists Association - Florida Chapter (Black Farmer Provision).

c. Finally, the DOH was ordered that for two of these ten licenses, the DOH shall

give a preference to applicants who would be converting their farming from

molasses/citrus to medicinal marijuana.

19. Pursuant to this statute, the DOH has notified six applicants that they will receive a

license by virtue of pending litigation and/or as being within one point of the highest final ranking

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in its region. Specifically, Plants of Ruskin, 3 Boys Farm, Loops Nursery, Treadwell Nursery, Sun

Bulb Nursery, and Keith St. Germain Nursery Farms received licenses.

DOHs Violation of Florida Law

20. Having allocated six of the ten MMTC licenses required, The DOH is obligated to

issue four more MMTC licenses by October 3, 2017. But it has not done so.

21. More egregiously, the DOH has no intention of complying with this mandate in the

near future.

22. On October 24, 2017, at a hearing before the Florida Senate Health Committee,

Christian Bax unequivocally informed the Committee that the DOH would not issue the additional

licenses until pending litigation over the constitutionality of the Black Farmer Provision is

resolved:

Chairwoman Senator Dana D. Young: Are you saying that you are willing to hold off
on issuing any further licenses as required by statute because you have litigation filed? Is
that what youre saying that youre going to wait until this litigation is resolved before
you issue any additional licenses.

Director Bax: Yes.

23. Director Bax and DOH General Counsel could not articulate a single justifiable

reason why they have ignored the clear legislative mandate to issue ten licenses by October 3,

2017. The following exchange between Vice Chair Senator Kathleen Passidomo and, Ms. Nichole

Geary, the DOHs General Counsel, is illustrative:

Vice Chairwoman Passidomo: We passed a law that had a certain date for a state agency
to comply with . . . what is the downside, what . . . valid reasons could you have for ignoring
a directive, a statutory directive . . . [?] I mean almost every time we pass a law somebody
files a lawsuit, and we still continue to pursue it . . . what could happen to the state of
Florida if these lawsuits that are holding you up, come to fruition . . . [?]

Ms. Geary: . . . At the moment the problem is twofold. One is an operational problem . . . it
is difficult . . . to pull the Pigford class litigant completely out. But that piece aside, the
department could potentially maneuver through that. At the moment there is a pending
motion . . . to stay the departments award of the license. We dont know how the judge is

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 going to view that right? . . . If hell look at it as enjoining the department from moving
forward as a whole, or if he will look at it in a more discrete narrow sense in terms of just
the Pigford class.

Vice Chairwoman Passidomo: Presuming you just continue to follow the law, which is
to go through the process of granting these licenses. Whats the downside? I mean
Theres a timeframe here. . . . October 3 is coming on. People are going to file suit saying
you didnt comply with the law, so what would happen to the state if you continued, or if
you did the process. What would be the downside?

Ms. Geary: Its difficult to articulate at the moment because . . . we dont know what the
judge is going to do with the temporary restraining order request, right? . . . So we could
be in a situation where the restraining order is issued mid-application process which would
put both the applicants and the department at a disadvantage both from a financial
perspective . . . where we may pay additional cost . . . . We also may be in a difficult posture
in terms of section 120.60. The department has a certain amount of time upon which it
must act once it receives an application . . . .

Vice Chairwoman Passidomo: . . . Well the applicant, thats a business decision.

Whether or not they want to file the application knowing that there is some litigation out
there. That is a business decision. From a states perspective, you know you face that every
day. . . So there doesnt seem to be, youre just talking about additional administrative costs
or time constraint costs . . . That doesnt seem like a downside to me.

24. As properly expressed by Chairwoman Young, the DOH, an executive agency, is

purporting to improperly exercise the injunctive powers of the judicial branch of government to

absolve itself from its obligation to follow the laws of this State:

Chairwoman Young: Doesnt it seem a bit complacent for you to simply throw your
hands up and say oh we cannot issue, weve been sued, oh no. You all get sued all the time.
. . . You have a duty under our state laws to issue these licenses regardless of whether some
plaintiff files a lawsuit.

Director Bax: . . . The problem is that, you know, there is a branch of government that is
not represented in this room right now. And they have a say over whether or not something
is procedurally correct, administratively correct, or constitutionally correct. . . .

Chairwoman Young: Isnt the job of the judiciary to interpret the law, and your job is to
execute the law. To carry out the law?

Director Bax: Yes maam it is.

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 25. The law is clear. The DOH was to license ten MMTCs by October 3, 2017. The

DOHs disregard for this legislative command violates Florida law.

26. The DOHs purported justification for this flagrant violation, that there may be

some increased cost if an injunction is granted at a later date, or that it may be placed in the position

of being unable to comply with another statute if the Court enters an injunction, is ridiculous.

Harm to Florida Citizens and Businesses

27. Amendment 2 and its implementing legislation were adopted to provide safe and

consistent access to potentially lifesaving medication to patients suffering from debilitating

medical conditions.

28. By setting deadlines, the legislature recognized that the speedy licensure of

sufficient MMTCs was necessary to ensure a properly functioning marketplace.

29. But the marketplace currently has little more than half of the participants that the

Florida legislature determined necessary to ensure adequate supply.

30. The DOHs failure to issue licenses and open the application process violates the

constitutional and statutory rights of Florida citizens and businesses.

31. It also directly affects the ability of patients to treat their ailments.

32. Research has shown that different cannabis strains have different health effects

depending on lineage, genetics, terpene profile, ratios of cannabinoids, and use of cutting agents.

Just like other medications, the variant of medicinal marijuana that works for one patient may not

work for another.

33. Each MMTC carries different rotating strains and uses different cutting agents. The

more MMTCs, the more strains and cutting agent varieties available to patients. The DOHs failure

to license all ten of the required MMTCs has therefore limited the available strains on the market,

and diminished patients ability to find strains that work for them.

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 34. The DOH failure is also harming competition in the marketplace by delaying the

entrance of new businesses, like Plaintiff Bills, into the market and thereby strengthening the

monopoly hold the current seven MMTCs have on the market. This problem will only be

exacerbated with the passage of time as the DOH continues to refuse to comply with its legal

obligations.

COUNT I
(Mandamus Fla. Stat. 381.986)

35. Plaintiffs adopt and reallege paragraphs 1 through 34 and incorporate them in this

count.

36. Florida Statute 381.986 requires the DOH to license medical marijuana

treatment centers to ensure reasonable statewide accessibility and availability as necessary . . . Id.

at 381.986(8)(a).

37. The statute leaves no room for discretion and is written in clearly mandatory terms:

[a]s soon as practicable, but no later than October 3, 2017, the department shall license applicants

that meet the requirements of this section in sufficient numbers to result in 10 total licenses issued

under this subparagraph . . . . Id. at 381.986(8)(a)(2)(c) (emphasis added). See also

381.986(8)(a)(2) ([t]he department shall license as medical marijuana treatment centers 10

applicants that meet the requirements of this section . . . .) (emphasis added).

38. Thus, Plaintiffs have a clear, certain, and indisputable legal right to have the DOH

perform its ministerial and nondiscretionary statutory duty to issue these ten MMTC licenses by

October 3, 2017.

39. The DOH has failed to perform this public duty despite adequate request, and has

in fact, halted its efforts to comply with its duty.

40. Plaintiffs have no other adequate remedy or legal method for obtaining relief.

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 WHEREFORE, Plaintiffs request this Court issue an alternative writ in mandamus

pursuant to Fla. R. Civ. Pro. 1.630(d)(2) together with such other relief as this Court deems just

and proper.

COUNT II
(Mandamus - Fla. Const. Art. 10, 29)

41. Plaintiffs adopt and reallege paragraphs 1 through 34 and incorporate them in this

count.

42. Fla. Const. Art. 10, 29 requires the DOH to promulgate no later than six (6)

months after the effective date of this section . . . . [p]rocedures 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.

43. It is [t]he 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. Id.

44. If the Department does not issue regulations, or if the Department does not

begin . . . 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 Departments constitutional

duties. Id.

45. Thus, the Constitution demands that the DOH will timely register sufficient

MMTCs to meet the public need by October 3, 2017.

46. But, the DOH has failed to comply with its constitutional obligations. Although it

previously registered some MMTCs, it has stopped the process of registering the additional

number of MMTCs that are needed to ensure availability for qualifying patients.

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 47. In other words, the DOH has halted all efforts to register the number of MMTCs

required by law and that would ensure the availability and safe use of medical marijuana by

qualifying patients, as determined by the Florida legislature.

48. Plaintiffs have a clear, certain, and indisputable legal right to have the DOH

perform its nondiscretionary constitutional duty to accept applications and register MMTCs within

the time limits set by the Florida constitution.

49. The DOH has failed to perform its nondiscretionary constitutional duties within the

time limits, and it has halted its efforts to comply with its duties.

50. Plaintiffs have reasonably and properly requested that the DOH comply with its

constitutional mandate, but the DOH has failed and refused to comply with Plaintiffs request.

51. Plaintiffs have no other adequate remedy or legal method for obtaining relief.

WHEREFORE, Plaintiffs request this Court issue an alternative writ in mandamus

pursuant to Fla. Const. art. X, 29 and Fla. R. Civ. Pro. 1.630(d)(2) together with such other relief

as this Court deems just and proper.

COUNT III
(Mandatory Injunction Fla. Stat. 381.986)

52. Plaintiffs adopt and reallege paragraphs 1 through 34 and 36 through 37 as though

set forth herein.

53. This is an action for injunctive relief to enforce Florida Statute 381.986.

54. Plaintiffs have a clear legal right for ten MMTC licenses to have been issued.

55. The DOHs failure to comply with Floridas statutory requirement to issue these

ten licenses by October 3, 2017 will continue to cause irreparable harm to Plaintiffs absent

injunctive relief.

56. There is no adequate remedy at law.

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 WHEREFORE, Plaintiffs request this Court enter mandatory injunctive relief compelling

Defendants to comply with their statutory duty to issue ten licenses to MMTCs, together with other

relief this Court deems just and proper.

COUNT IV
(Mandatory Injunction - Fla. Const. art. X, 29)

57. Plaintiffs adopt and reallege paragraphs 1 through 34 and 42 through 44, as though

set forth herein.

58. This is an action for injunctive relief to enforce Article X, 29 of the Florida

Constitution.

59. The DOH has failed to issue sufficient licenses to MMTCs to ensure the availability

and safe use of medical marijuana as required by Article 10, 29 of Floridas Constitution.

60. Further, the DOH has halted all efforts to comply with its duty to issue timely

regulations relating to the registration of further MMTCs necessary to ensure the availability and

safe use of medical marijuana, as required by Article 10, 29 of Floridas Constitution.

61. Plaintiffs have a clear legal, and constitutional, right to have additional licenses be

issued and to have the DOH continue the application process.

62. The DOHs failure to comply with its clear constitutional mandate, has violated the

requirements of the Florida Constitution, and will continue to cause Plaintiffs irreparable harm

absent the injunctive relief authorized by the Constitution.

63. There is no adequate remedy at law.

WHEREFORE, Plaintiffs are entitled to mandatory injunctive relief compelling the

defendant DOH to comply with its constitutional duty to (1) finalize the regulatory regime

necessary for the granting of additional licenses, (2) immediately begin accepting applications for

additional MMTCs, and (3) award additional licenses necessary to ensure the availability and safe

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use of medical marijuana, as required by Article 10, 29 of Floridas Constitution, together with

any other relief this Court deems just and proper.

COUNT V
(Declaratory Judgment - Fla. Stat. 381.986)

64. Plaintiffs adopt and reallege paragraphs 1 through 34 and incorporate them in this

count.

65. There is bona fide, actual, present, practical need for the declaration to resolve a

bona fide dispute between Plaintiffs and the DOH regarding the DOHs duties and obligations

under Fla. Stat. 381.986.

66. The declaration deals with a present and ascertained state of facts regarding the

DOHs duty and obligation to comply with its statutory mandate under Fla. Stat. 381.986.

67. Plaintiffs rights are dependent upon the law applicable to the facts.

68. Plaintiff Bills is an applicant for a license to operate a medical marijuana treatment

center, and as such, it has, or reasonably may have an actual and present interest in the subject

matter of this declaration.

69. Plaintiff Bowen is a patient who requires access to medicinal marijuana to prevent

and treat epileptic seizures, and as such, he has an actual and present interest in ensuring an

adequate supply of medicinal marijuana in the marketplace as determined by the Florida

legislature.

70. The antagonistic and adverse interests are all before the Court by proper process.

71. The relief sought is not merely giving of legal advice by the courts or the answer to

questions propounded by curiosity.

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 72. The DOHs refusal to accept applications and issue licenses pursuant to 381.986

has created a bona fide conflict giving rise to a present, practical need for a declaration concerning

the DOHs mandatory obligations under Fla. Stat. 381.986.

WHEREFORE, Plaintiffs seek an order from this Court declaring that (i) the DOH is in

violation of Florida Statues, and that (ii) the DOH must re-open the application process and issue

at least four more MMTC licenses forthwith, together with any other relief this Court finds just

and proper.

COUNT VI
(Declaratory Judgment Fla. Const. Art. 10, 29)

73. Plaintiffs adopt and reallege paragraphs 1 through 34 and incorporate them in this

count.

74. There is bona fide, actual, present, practical need for the declaration to resolve a

bona fide dispute between Plaintiffs and the DOH regarding the DOHs duties and obligations

under Florida Constitution, Art. 10, 29.

75. The declaration deals with a present and ascertained state of facts regarding the

DOHs duty and obligation to comply with its constitutional mandate under Fla. Const. Art. 10,

29.

76. Plaintiffs rights are dependent upon the law applicable to the facts.

77. Plaintiff Bills is an applicant for a license to operate a medical marijuana treatment

center, and as such, it has, or reasonably may have an actual and present interest in the subject

matter of this declaration.

78. Plaintiff Bowen is a patient who requires access to medicinal marijuana to prevent

and treat epileptic seizures, and as such, he has an actual and present interest in ensuring an

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adequate supply of medicinal marijuana in the marketplace as determined by the Florida

legislature.

79. The antagonistic and adverse interests are all before the Court by proper process.

80. The relief sought is not merely giving of legal advice by the courts or the answer to

questions propounded by curiosity.

81. The DOHs refusal to accept applications and issue licenses pursuant to Fla. Const.

Art. 10, 29 has created a bona fide conflict giving rise to a present, practical need for a declaration

concerning the DOHs mandatory obligations under Fla. Const. art. X, 29.

WHEREFORE, Plaintiffs seek an order from this Court declaring that (i) the DOH is in

violation of the Florida Constitution, and that (ii) the DOH must re-open the application process

and issue at least four more MMTC licenses forthwith, together with any other relief this Court

finds just and proper.

PLAINTIFFS DEMAND TRIAL BY JURY FOR ALL ISSUES TRIABLE BY RIGHT.

BOIES SCHILLER FLEXNER LLP.

Attorneys for Plaintiffs
100 S.E. 2nd Street, Suite 2800
Miami, Florida 33131
Telephone: (305) 539-8400
Facsimile: (305) 539-1307

By: /s/ Devin Velvel Freedman

Devin (Velvel) Freedman, Esq.
Florida Bar No: 99762
Email: [email protected]
Kristina Infante, Esq.
Florida Bar No: 112557
Email: [email protected]

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