         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2206
                  _____________________________

FLORIDA DEPARTMENT OF
HEALTH; CELESTE PHILIP, M.D.,
in her official capacity as
Secretary of Health for the State
of Florida; OFFICE OF MEDICAL
MARIJUANA USE; and CHRISTIAN
BAX, in his official capacity as
Director of the Office of Medical
Marijuana Use,

    Appellants,

    v.

PEOPLE UNITED FOR MEDICAL
MARIJUANA; FLORIDA FOR CARE,
INC.; DIANA DODSON; and
CATHERINE JORDAN,

    Appellees.
                  _____________________________


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

                           July 3, 2018

              ORDER ON MOTION FOR REVIEW


PER CURIAM.
     The Department of Health (DOH) and the Director of the
Office of Medical Marijuana Use (collectively the State) appealed
an order of the circuit court declaring section 381.986, Florida
Statutes (2017), unconstitutional pursuant to Article X, section
29 of the Florida Constitution (the Medical Marijuana
Amendment). When the State filed its notice of appeal in this
Court, an automatic stay of the circuit court’s judgment was
entered. Appellees filed a motion to lift the stay in the circuit
court. After hearing from the parties, the circuit court entered an
order vacating the automatic stay. The State now seeks review of
that order. For the reasons that follow, we quash the order
vacating the automatic stay and reinstate the stay during the
pendency of the appeal.

                                 I.

     In 2016, Florida voters adopted Amendment 2, a ballot
initiative resulting in the creation of the Medical Marijuana
Amendment. The Amendment authorized medical use of
marijuana for qualifying patients with certain debilitating
medical conditions but authorized DOH to issue reasonable
regulations to ensure the availability and safe use of medical
marijuana by qualifying patients. Art. X, § 29(d), Fla. Const. In
addition, section 29(e) of the Medical Marijuana Amendment
provides that “[n]othing in this section shall limit the legislature
from enacting laws consistent with this section.”

     In 2017, the Florida Legislature enacted section
381.986(1)(j), Florida Statutes, defining “medical use” as “the
acquisition, possession, use, delivery, transfer, or administration
of marijuana authorized by a physician certification.” Expressly
excluded from the definition of medical use is the “[p]ossession,
use, or administration of marijuana in a form for smoking.” §
381.986(1)(j)2.

     After the statute was enacted, Appellees brought suit in the
circuit court seeking a declaration that the exclusion of
marijuana “in a form for smoking” from the statutory definition
of medical use was a violation of the Medical Marijuana
Amendment. The circuit court issued a declaratory judgment
finding that the Medical Marijuana Amendment implied a right
for qualified patients to use smokable medical marijuana in
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private places. The State appealed the circuit court’s order, and
the order was automatically stayed pursuant to Florida Rule of
Appellate Procedure 9.310(b)(2). Appellees moved to vacate the
automatic stay.

     The circuit court entered an order vacating the automatic
stay, determining that the State had no likelihood of success on
the merits on appeal and that the individual Appellees were
“exposed to irreparable harm [because] they cannot legally access
the treatment recommended for them [and] they face potential
criminal prosecution for possession and use of the medicinal
substance.” Further, the court reasoned that by vacating the
automatic stay, the status quo would be preserved “by returning
the law to its previous state as it existed following the 2016
adoption” of the Medical Marijuana Amendment. The State now
seeks review of the order vacating the automatic stay.

                                II.

     Florida Rule of Appellate Procedure 9.310(b)(2) provides, in
pertinent part:

         Public Bodies; Public Officers. The timely filing
         of a notice shall automatically operate as a stay
         pending review . . . when the state, any public
         officer in an official capacity, board,
         commission, or other public body seeks review. .
         . . On motion, the lower tribunal or the court
         may extend a stay, impose any lawful
         conditions, or vacate the stay.

     The purpose of the automatic stay provision triggered when
a government entity or officer appeals an adverse judgment is to
accord judicial deference to governmental decisions. See St. Lucie
Cty. v. N. Palm Dev. Corp., 444 So. 2d 1133, 1135 (Fla. 4th DCA
1984) (determining that “planning-level decisions are made in the
public interest and should be accorded a commensurate degree of
deference and that any adverse consequences realized from
proceeding under an erroneous judgment harm the public
generally.”). Although a trial court may vacate an automatic stay
during the pendency of an appeal, it may only do so “under the
most compelling circumstances.” State, Dep’t of Envtl. Prot. v.
                                3
Pringle, 707 So. 2d 387, 390 (Fla. 1st DCA 1998) (quoting St.
Lucie Cty.). A party moving to vacate an automatic stay must
demonstrate that “the equities are overwhelming tilted against
maintaining the stay.” Tampa Sports Auth. v. Johnston, 914 So.
2d 1076, 1084 (Fla. 2d DCA 2005). Last, in determining whether
to vacate an automatic stay, the trial court must consider (1) the
government’s likelihood of success on appeal, and (2) the
likelihood of irreparable harm if the automatic stay is reinstated.
Id. at 1079 (citing Mitchell v. State, 911 So. 2d 1211, 1219 (Fla.
2005)).

     Appellees have not shown that compelling circumstances
exist to support the order vacating the stay in this appeal. We
begin by observing that a similar request to vacate an automatic
stay was made in Florida Department of Health v. Redner, 1D18-
1505. There, the circuit court determined that Redner, a
qualifying patient with a debilitating medical condition, was
entitled to possess, grow, and use marijuana plants for medical
treatment, consistent with his doctor’s recommendation pursuant
to the Medical Marijuana Amendment. The circuit court vacated
the automatic stay, but this Court reinstated the automatic stay
because Redner had not demonstrated a likelihood of success on
the merits as required to justify the lifting of the automatic stay.
Redner filed a petition to invoke the all writs jurisdiction of the
Florida Supreme Court to vacate the automatic stay. The Florida
Supreme Court denied the petition and explained that Redner’s
request failed to demonstrate that all writs authority was
necessary to prevent irreparable harm.

     Here, after the panel’s preliminary review of the wording of
the Medical Marijuana Amendment and the statute prohibiting
the use of medical marijuana in a smokable form, we conclude
that Appellees have not sufficiently demonstrated a likelihood of
success on the merits as required to justify vacating the
automatic stay. Mitchell v. State, 911 So. 2d 1211, 1219 (Fla.
2005). “[S]tatutes are presumed constitutional, and the
challenging party has the burden to establish the statute’s
invalidity beyond a reasonable doubt.” Jackson v. State, 191 So.
3d 423, 426 (Fla. 2016). To strike a statute as facially
unconstitutional, Appellees were required to show “that no set of
circumstances exists under which the statute would be valid.”

                                 4
Fla. Dep’t of Revenue v. City of Gainesville, 918 So. 2d 250, 256
(Fla. 2005). Appellees failed to meet their burden.

     Further, Appellees have failed to demonstrate that they will
suffer irreparable harm if the automatic stay is reinstated. On
the contrary, reinstating the automatic stay will maintain the
status quo pending appeal. *

                               III.

     Accordingly, upon consideration of the State’s motion for
review, we hold that it was an abuse of discretion for the circuit
court to vacate the automatic stay. The circuit court’s order
vacating the automatic stay is quashed and the automatic stay
provided by rule 9.310(b)(2) is reinstated and shall remain in
effect pending the outcome of the appeal.

LEWIS, ROWE, 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.
               _____________________________


Pamela Jo Bondi, Attorney General, Rachel Nordby, Senior
Deputy Solicitor General, and Karen A. Brodeen, Senior
Assistant Attorney General, Tallahassee, for Appellants.

Jon L. Mills, Miami, and Karen C. Dyer, George R. Coe, and
Marcy Norwood Lynch, Orlando, of Boies Schiller Flexner LLP;
John Morgan of Morgan & Morgan, P.A., Orlando, for Appellees.

    *    In concluding that Appellees failed to demonstrate a
likelihood of success on appeal and they failed to demonstrate a
likelihood of irreparable harm, we do not intend to preclude full
review of the issues on appeal by the merits panel.



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