         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2796
                  _____________________________

FLORIDA DEPARTMENT OF
HEALTH,

    Petitioner,

    v.

TROPIFLORA, LLC, as Agent for
MARIJ AGRICULTURAL, INC. and
DENNIS and LINDA CATHCART,
d/b/a TROPIFLORA NURSERY,

    Respondents.
               _____________________________


Petition for Writ of Prohibition–Original Jurisdiction

                        January 25, 2019


PER CURIAM.

     The Florida Department of Health (“the Department”)
petitions this Court for a writ of prohibition to bar further
proceedings in the trial court because TropiFlora failed to exhaust
administrative remedies. For the reasons that follow, the petition
is denied.

                                I.

     TropiFlora filed an application with the Department to be the
exclusive low-THC cannabis dispensing organization for the
Southwest Florida region under section 381.986, Florida Statutes
(2014). Upon receipt of the application, the Department notified
TropiFlora it had failed to submit certified financial statements
required by section 381.986(5)(b)5., Florida Statutes. Although
given a time period to cure the alleged deficiency, TropiFlora did
not. The Department subsequently notified TropiFlora that its
application was denied and provided a “Notice of Rights” as
required by chapter 120, Florida Statutes, advising TropiFlora of
its ability to challenge the denial. TropiFlora filed a petition under
the Administrative Procedures Act (APA), which was consolidated
with proceedings of other challengers for the Southwest region
license. However, just prior to final hearing, TropiFlora
voluntarily dismissed its administrative petition and abandoned
the chapter 120 administrative process.

      Thereafter, TropiFlora filed a complaint for declaratory
judgment in circuit court seeking an order stating its entitlement
to a license. In response, the Department filed a motion to dismiss
the complaint, alleging TropiFlora failed to exhaust
administrative remedies. Later, the Department also filed a
motion for summary judgment on the same grounds. Without
ruling on the arguments raised by the Department in various
motions, the trial judge scheduled a trial date and allowed ongoing
discovery. In the interim, the legislature passed Senate Bill 8-A
during a special session and the bill was signed into law as chapter
2017-232, Laws of Florida (amending section 381.986, Florida
Statutes). The new law directed the Department to license as
“medical marijuana treatment centers” ten applicants who meet
certain requirements. TropiFlora filed a motion for temporary
injunction seeking to enjoin the Department from issuing any
medical marijuana licenses under the 2017 law. The Department
filed a motion for judgment on the pleadings again asserting that
TropiFlora failed to exhaust administrative remedies. Despite the
trial judge’s advising that a hearing would occur to address all
pending matters, the motions filed by the Department raising
jurisdictional arguments remain outstanding. Unable to obtain a
ruling on its motions and facing ongoing discovery, the
Department filed this petition for writ of prohibition.




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                                 II.

     Prohibition relief is not available under these facts. “Only
where a tribunal purports to exercise jurisdiction over a case
falling within a class of cases it is forbidden to consider is it
appropriate for a higher court to grant the extraordinary writ of
prohibition.” Haridopolos v. Citizens for Strong Sch., Inc., 81 So.
3d 465, 468 (Fla. 1st DCA 2011). The claims Tropiflora has
asserted—those for declaratory judgment and a writ of
mandamus—are not “within a class of cases” the trial court “is
forbidden to consider.” Indeed, as the Department acknowledges
in its brief, the failure-to-exhaust defense—if successful—would
not deprive the trial court of subject-matter jurisdiction. See Dep’t
of Health v. Curry, 722 So. 2d 874, 878 (Fla. 1st DCA 1998) (“The
doctrine which requires the exhaustion of administrative remedies
is based upon considerations of policy, rather than of
jurisdiction.”); see also Wilson v. County of Orange, 881 So. 2d 625,
631 (Fla. 5th DCA 2004) (“[F]ailure to exhaust administrative
remedies is an affirmative defense. . . .”); Bankers Ins. Co. v.
Florida Residential Prop. & Cas. Joint Underwriting Ass’n, 689 So.
2d 1127, 1129-30 (Fla. 1st DCA 1997) (affirming denial of
temporary injunction “[b]ecause adequate administrative
remedies are in place,” without questioning trial court’s subject-
matter jurisdiction); but see City of Sunny Isles Beach v. Publix
Super Markets, Inc., 996 So. 2d 238, 239 (Fla. 3d DCA 2008)
(granting writ of prohibition because respondent “had not
exhausted its administrative remedies before filing its declaratory
judgment action”).

     Likewise, the writ of prohibition “is very narrow in scope and
operation and must be employed with caution and utilized only in
emergency cases to prevent an impending injury where there is no
other appropriate and adequate legal remedy.” Mandico v. Taos
Const., Inc., 605 So. 2d 850, 854 (Fla. 1992). Here, there has been
no showing that other appropriate and adequate legal remedies
are unavailable. If the trial court should dismiss based on the
failure-to-exhaust defense and does not, the Department can
remedy that error on direct review. See Curry, 722 So. 2d at 875

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(direct appeal reviewing denial of motion to dismiss for failure to
exhaust). And to the extent the Department argues prohibition is
necessary to preclude entry of an injunction or unwarranted
depositions of high-ranking government officials, those, too, can be
remedied without prohibition. See Fla. R. App. P. 9.130(a)(3)b.
(authorizing interlocutory appeal of injunction orders); Florida
Office of Ins. Regulation v. Florida Dep’t. of Fin. Services, 159 So.
3d 945, 947 (Fla. 1st DCA 2015) (granting certiorari and quashing
order permitting Insurance Commissioner’s deposition); Univ. of
W. Florida Bd. of Trustees v. Habegger, 125 So. 3d 323, 324 (Fla.
1st DCA 2013) (granting certiorari and quashing order permitting
university president’s deposition).

     The writ of prohibition is authorized only in very narrow
circumstances, and the circumstances here do not justify the relief
requested. Accordingly, the petition for writ of prohibition is
DENIED.

LEWIS, WINSOR, and M.K. THOMAS, JJ., concur.

                  _____________________________

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


W. Robert Vezina, III, Eduardo S. Lombard, and Megan S.
Reynolds of Vezina, Lawrence & Piscitelli, P.A., Tallahassee, for
Petitioner.

Steven R. Andrews, Brian O. Finnerty, and Ryan J. Andrews of the
Law Offices of Steven R. Andrews, P.A., Tallahassee, for
Respondents.




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