filing # 102298836 e-filed 01/27/2020 04:58:13 pm case no

Case No. 1D19-2714

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

O.F. NELSON & SONS NURSERY, INC.,

Appellant,

v.

FLORIDA DEPARTMENT OF HEALTH,

OFFICE OF MEDICAL MARIJUANA USE,

Appellee.

Appeal from Final Order rendered by

the Florida Department of Health

Case No. DOH 2019-0075

Michele Tallent, Deputy Secretary for Operations

APPELLANT’S INITIAL BRIEF

Robert O. Beasley

Florida Bar No. 0148512

Phillip A. Pugh, Esq.


LITVAK, BEASLEY, WILSON & BALL, LLP

40 South Palafox Place, Suite 300

Pensacola, Florida 32502

Telephone: (850) 432-9818

Counsel for Appellant,

O.F. Nelson & Sons Nursery, Inc.

Jessica L. Scholl


MOORE, HILL &WESTMORELAND, P.A.

350 West Cedar Street

Pensacola FL 32502

Telephone: (850) 434-3541

Co-Counsel for Appellant,


Filing # 102298836 E-Filed 01/27/2020 04:58:13 PM

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

REFERENCE TO THE PARTIES AND RECORD ................................................. 1

STATEMENT OF THE CASE AND FACTS .......................................................... 2

SUMMARY OF ARGUMENT ................................................................................. 9

STANDARD OF REVIEW ..................................................................................... 11

ARGUMENT ........................................................................................................... 11

I. The Department’s Final Order procedurally departs from

the essential requirements of law. ...................................................... 11

a. Dismissal of a formal hearing request is improper

absent an opportunity to cure. .................................................. 11

b. Parties with substantially affected interests are

entitled to a hearing. ................................................................. 13

II. The Department’s Final Order substantively departs

from the essential requirements of law. ............................................. 14

a. Nelson’s Application was automatically approved

upon the Department’s failure to comply with the

express time requirements in section 120.60,

Florida Statutes. ....................................................................... 14

b. The Department erred in concluding the Ashbacker

Doctrine precludes automatic licensure. .................................. 21

III. Nelson is well-qualified, uniquely situated, and subject to

the same regulations as existing MMTCs, such that

recognition of its license will not disrupt the status quo. ................... 25

a. Nelson is well-qualified. .......................................................... 25

-ii-

b. Nelson is procedurally unique and subject to

stringent quality controls. . ........................................................ 26

IV. The Department’s Final Order must be reversed with

directions to recognize Nelson’s license or, in the

alternative, Nelson is entitled to a Writ of Mandamus

directing the Department to immediately register Nelson

as a Florida MMTC. ........................................................................... 28

CONCLUSION ........................................................................................................ 32

CERTIFICATE OF SERVICE ................................................................................ 34

CERTIFICATE OF COMPLIANCE ....................................................................... 35

-iii-

TABLE OF AUTHORITIES

Page

CASES

Ashbacker Radio Corp. v. Fed. Commc’ns Comm’n,

326 U.S. 327 (1945) .........................................................................10, 21, 22, 23, 24

Bio-Med. Applications of Clearwater, Inc. v. Dep’t of Health and Rehab.

Servs., Office of Cmty. Med. Facilities,

370 So. 2d 19 (Fla. 2d DCA 1979) .................................................................... 22, 23

Dep’t of Children & Family Servs. v. I.B.,

891 So. 2d 1168 (Fla. 1st DCA 2005) ..................................................................... 18

Fair v. Davis,

283 So. 2d 377 (Fla. 1st DCA 1973) ....................................................................... 28

First Nat’l Bank of Key West v. Filer et al.,

145 So. 204 (Fla. 1933) ............................................................................................ 29

Fla. Acad. of Cosmetic Surgery, Inc. v. State, Dep’t. of Health,

771 So. 2d 602 (Fla. 1st DCA 2000) ................................................................. 19, 29

Fla. Dep’t of Health v. Florigrown, LLC,

2019 WL 294332944 (Fla. 1st DCA 2019) ............................................................. 23

Fla. Dep’t of Health v. Florigrown, LLC,

2019 WL 5208142 (Fla. October 16, 2019) ............................................................. 23

Fla. League of Cities, Inc. v. Admin. Comm’n,

586 So. 2d 397 (Fla. 1st DCA 1991) ....................................................................... 13

Gopman v. Dep’t of Educ.,

908 So. 2d 1118 (Fla. 1st DCA 2005) ..................................................................... 18

Gulf Court Nursing Ctr v. Dep’t. of Health,

483 So. 2d 700 (Fla. 1st DCA 1985) ....................................................................... 22

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-iv-

Huffman v. State,

813 So. 2d 10 (Fla. 2000) ......................................................................................... 29

Jennings v. Bd. of Clinical Soc. Work,

588 So. 2d 656 (Fla. 1st DCA 1991) ....................................................................... 19

Krakow v. Dep’t of Prof’l Regulation, Bd. of Chiropractic,

586 So. 2d 1271 (Fla. 1st DCA 1991) ..................................................................... 19

McIntyre v. Seminole Cnty Sch. Bd.,

779 So. 2d 639 (Fla. 5th DCA 2001) ....................................................................... 12

Naples Community Hosp., Inc. v. Dep’t of Health and Rehab. Servs.,

463 So. 2d 375 (Fla. 1st DCA 1985) ..................................................... 14, 20, 21, 24

Parlato v. Secret Oaks Owners Ass’n,

793 So. 2d 1158 (Fla. 1st DCA 2001) ..................................................................... 11

Perry v. Dep’t of Children and Families,

220 So. 3d 546 (Fla. 3d DCA 2017) ........................................................................ 13

Premier Int’l Travel, Inc. v. Bronson,

843 So. 2d 294 (Fla. 1st DCA 2003) ....................................................................... 19

Putnam Cnty. Envtl. Council v. Johns River Water Mgmt. Dist.,

168 So. 3d 296 (Fla. 1st DCA 2015) ....................................................................... 29

St. Francis Parkside Lodge of Tampa Bay v. Dep't of Health & Rehab. Servs.,

486 So. 2d 32 (Fla. 1st DCA 1986) ......................................................................... 12

Solomon v. Sanitarians’ Registration Bd.,

155 So. 2d 353 (Fla. 1963) ....................................................................................... 29

Town of Manalapan v. Rechler,

674 So. 2d 789 (Fla. 4th DCA 1996) ....................................................................... 29

Tuten v. Dep’t of Envtl. Prot.,

819 So. 2d 187 (Fla. 4th DCA 2002) ....................................................................... 20

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-v-

W. Fla. Reg’l Med. Ctr., Inc. v. See,

79 So. 3d 1 (Fla. 2012) ............................................................................................. 11

World Bank v. Lewis,

425 So. 2d 77 (Fla. 1st DCA 1982) ......................................................................... 19

Wuesthoff Mem’l Hosp. Inc. v. Fla. Elections Comm’n,

795 So. 2d 179 (Fla. 1st DCA 2001) ....................................................................... 29

STATUTES

§ 120.54, Fla. Stat. ................................................................................................... 18

§ 120.569, Fla. Stat. .......................................................................6, 9, 12, 13, 16, 17

§ 120.57, Fla. Stat. ............................................................................... 6, 9, 12, 16, 17

§ 120.60, Fla. Stat. ............................................................................................passim

§ 381.986, Fla. Stat. ..........................................................................................passim

ADMINISTRATIVE DECISIONS

Chilito v. Dep’t of Health,

2016 WL 1255759

(Fla. DOAH Feb. 29, 2016; Fla. Dep’t of Health May 2, 2016) ............................. 19

Louis Del Favaro Orchids, Inc. v. Dep’t of Health,

DOAH 18-2838RP (Final Order August 6, 2018) ................................................... 17

-vi-

ADMINISTRATIVE RULES AND REGULATIONS

Dep’t of Health Regulation 2-1.01 ............................................................................. 3

Fla. Admin. Code R. 64-4.002 ..................................................................... 3, 7, 8, 17

Fla. Admin. Code Emergency R. 64ER17-2 ........................................................... 28

Fla. Admin. Reg., Vol. 43, No. 214 pp. 5030-35 (Nov. 3, 2017) ............................ 27

OTHER AUTHORITY

Art. X, § 29, Fla. Const. ................................................................................... 7, 9, 23

Office of Med. Marijuana Use, OMMU Weekly Update October 19, 2018,

https://s27415.pcdn.co/wp-content/uploads/ommu_updates/2018/101918-

OMMU-Update.pdf ................................................................................................. 15

Office of Med. Marijuana Use, OMMU Weekly Update January 24, 2020,

https://s27415.pcdn.co/wp-content/uploads/ommu_updates/2020/012420-

OMMU-Update.pdf ................................................................................................. 15

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REFERENCE TO THE PARTIES AND RECORD

Appellant, O.F. Nelson & Sons, Inc., shall be referred to as “Nelson.”

Appellee, The Department of Health, shall be referred to as the “Department.”

The Third Corrected Record shall be referred to as “R.” followed by page

number. The Sealed Supplemental Record shall be referred to as “S. R.” followed

by page number.

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STATEMENT OF THE CASE AND FACTS

I. Nature of the appeal.

This is an appeal from a Final Order Dismissing Petition for Formal

Administrative Hearing (“Final Order”) issued by the Florida Department of

Health. The Department’s Final Order dismissed with prejudice Appellant’s

Petition for Formal Administrative Hearing (“Petition”), which sought review of

the Department’s refusal to recognize Appellant’s statutorily issued MMTC license.

The issues before this Court are whether the Department: (1) departed from

the essential requirements of law in refusing to comply with its statutory duty to

issue a license by default based on the available record; (2) violated Florida’s

Administrative Procedures Act (“APA”) by denying a contested hearing on the

Petition; and (3) neglected due process considerations by dismissing Appellant’s

Petition with prejudice, when the administrative record demonstrated competent

evidence of qualification.

II. Statement of facts and procedural history.

Nelson’s 2018 Application.

Nelson is an established Florida nursery specializing in flowering plants.

S. R. 80. It has been registered to do business in Florida since 1960. S. R. 79.

On October 19, 2018, Nelson applied for licensure to operate as a Medical

Marijuana Treatment Center (MMTC) (the “Application”). R. 36. At the time,

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three MMTC licenses remained available pursuant to section 381.986(2), Florida

Statutes, and four additional licenses had recently become available pursuant to

section 381.986(4), Florida Statutes, following the Florida patient registry

surpassing 100,000 qualified patients. R. 49.

Nelson submitted its Application to the Department, tracking the substantive

pre-licensure requirements of section 381.986, Florida Statutes, as well as the

Department’s regulation 2-1.01 effective as of November 1, 2017 and Proposed

Rule 64-4.002. S. R. 77-188. With its Application, Nelson tendered an application

fee in the amount of $60,830.00 to the Department. R. 35.

The Application demonstrates Nelson possesses the following: (1) a valid

certification from the Department of Agriculture (S. R. 80); (2) technical and

technological ability to cultivate and produce marijuana (S. R. 82); (3) ability to

secure the personnel resources necessary to operate as an MMTC (S. R. 147-150);

(4) ability to maintain accountability and security of all raw materials, finished

products, and byproducts (S. R. 126-139); (5) infrastructure reasonably located to

dispense medical marijuana statewide. (S. R. 120-125; S. R. 177-187); and

(6) financial ability to maintain operations for the two-year approval cycle,

including the provision of certified financial statements (S. R. 155-176).

Specifically, regarding Nelson’s cultivation ability, the Application details

Nelson’s introduction of sixty-eight (68) new non-native species to Florida – each

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with multiple variations – including African Violets, Bougainvillea, Bromeliad,

Desert Rose, Hibiscus, Jasmine, Orchids, and Verbenas. S. R. 82-83. It showcases

Nelson’s agricultural accomplishments, including receipt of the Agricultural

Commissioner’s Award for contributions to integrated pest management research.

S. R. 82. The Application provides detailed methodology for in-house propagation

and genetic modification, demonstrates ability to maintain clean grow rooms, and

discusses Nelson’s ten-year history cultivating crops for human consumption. S. R.

83-85.

Regarding its infrastructural ability, Nelson owns outright its existing real

property. S. R. 177; S. R. 182-183. Nelson’s Application describes an 89,000

square foot greenhouse – one of five – dedicated as its initial cannabis cultivation

area, with an additional 360,000 square feet available for expansion. S. R. 93. The

Application incorporates completed engineering drawings to convert Nelson’s

greenhouses into a multi-zoned cannabis cultivation operation. S. R. 130. It also

attaches a zoning pre-approval from the City of Apopka, Florida where Nelson is

located. S. R. 187.

Nelson’s Application lists initial product offerings, including differing routes

of administration such as tincture, oral spray, oil capsule, concentrates, and tablets,

each with various CBD/THC ratios. S. R. 114. It provides pre-approved planned

dispensing locations. S. R. 177-178. It showcases a prototype floor plan for the

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dispensaries. S. R. 132. It includes a proposed storefront and sample product

packaging. S. R. 109; S. R. 112. The Application demonstrates Nelson’s

commitment to patient confidentiality. S. R. 113. It details an educational plan to

furnish information and resources to patients. S. R. 117-118.

Nelson’s Application certifies that its owners, officers, board members, and

managers have successfully passed background screenings. S. R. 81. It includes

floor plans depicting Nelson’s cultivation, processing, and dispensary security

equipment, as well as each room’s name, function, and dimensions. S. R. 130-132.

It identifies the locking, lighting, alarm, and video surveillance systems Nelson

will use. S. R. 126-127. It provides a detailed plan for product diversion and

trafficking prevention, including a “seed-to-sale” electronic tracking platform

which will act as a digital chain of custody transport manifest, mapping each

plant’s movement from origin to final patient recipient. S. R. 123. It sets out a plan

to securely transport final product, including unmarked vehicles equipped with a

two-man team, GPS tracking, encrypted communications, and video capabilities.

S. R. 136-137.

Finally, to evidence its financial ability, Nelson’s Application includes

detailed budgets, demonstrating secured equity investments committed to

$20,000,000.00 in initial capital investment. S. R. 168. It includes bank statements

reflecting a capital fund of $10,000,000.00 available for immediate use. S. R. 176.

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The Department’s Mishandling of Nelson’s Application.

On October 19, 2018, the Department accepted Nelson’s Application and

accompanying application fee. R. 73.

For over 30 days, the Department issued no response. It identified no error

or omission and requested no additional information. Nelson’s Application was

deemed complete on November 19, 2018, and the Department’s response due 90

days later, on February 17, 2019. Over 105 more days elapsed. The Department

again issued no response, took no action, and neither approved nor denied the

Application.

On March 4, 2019, Nelson notified the Department of its intent to rely on the

“default” licensure provision in section 120.60(1), Florida Statutes. R. 4. The

following day, on March 5, 2019, the Department responded to Nelson’s notice via

letter, purporting to deny Nelson’s request as premature. R. 13. The Department’s

correspondence included notice that its letter constituted final agency action for

purposes of section 120.569, Florida Statutes, and advised that parties with

substantially affected interests may petition for administrative hearing pursuant to

sections 120.569 and 120.57, Florida Statutes. R. 14.

Despite rejecting Nelson’s notice of default licensure, the Department

retained Nelson’s $60,830.00 application fee.

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Nelson’s Petition.

Nelson timely filed a Petition with the Department Agency Clerk. R. 6-14.

Nelson’s Petition included the following factual allegations:

Nelson is a registered nursery with the Florida Department of Agriculture

and Consumer Services and has operated a Florida plant nursery since

1960. (Paragraph 2). R. 7.

In July 2015, Nelson submitted an application for registration as an

MMTC, which was rejected as untimely. (Paragraph 20). R. 9.

In October 2018, Nelson again submitted an application to the

Department to operate as a MMTC. The application was in compliance

with Rule 64-4.002 FAC and Form DH8013-OMMU-04/2018, which is

the most recent guidance provided to potential applicants. (Paragraph 21).

R. 9.

With its Application, Nelson paid an application fee of $60,830.00.

(Paragraph 22). R. 10.

On March 4, 2019, Nelson had received no communication from the

Department related to its application and provided notice to the

Department’s Agency Clerk to rely on the default issuance provision of

Section 120.60(1), Florida Statutes. (Paragraph 23). R. 10.

On March 5, 2019, the Department issued a letter stating the application

was “premature” because the deadline had not yet been established and

denying the application. The Department did not return the application

fee paid by Petitioner. (Paragraph 24). R. 10.

The application was filed more than nine (9) months after the effective

date for registration required by the Amendment in Article X, Section

29(d)(2), Fla. Stat. (Paragraph 26). R. 10.

The Department accepted the application and fee. (Paragraph 28). R. 11.

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The Department did not notify the Petitioner the application was deficient

or premature within thirty (30) days and did not deny the Petition within

ninety (90) days. The Department only responded after the Notice to the

Clerk was filed, which was beyond the ninety (90) day required response

date. (Paragraph 29). R. 11.

Nelson meets the requirements of section 381.986(8), the Constitutional

Amendment, and Rule 64-4.002 FAC. (Paragraph 27). R. 10.

On March 26, 2019, the same day Nelson filed its Petition, the Department

returned Nelson’s $60,830.00 check submitted to the Department in October 2018.

R. 34.

The Department did not dispute any of Nelson’s allegations and took no

further action on its Petition until June 28, 2019, when it entered its Final Order.

R. 15.

The Department’s Final Order.

Despite dismissing Nelson’s Petition without a hearing, the Department’s

Final Order included findings of fact and conclusions of law, holding that:

The registration procedure for MMTC’s [sic] that is

found in Section 381.986(8) Florida Statutes is a need

driven procedure with competing entities vying for a

finite number of registrations. Assuming the default

licensure provision of section 120.60 Florida Statutes,

would otherwise be applicable here, the default licensure

provision is inconsistent with the Department’s duties to

fill available MMTC slots based on a statutory need

formula. Default licensure cannot be applied here.

This appeal followed.

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SUMMARY OF ARGUMENT

Nelson’s timely, detailed Application requested licensure as one of seven

available MMTCs. The Application consisted of 107 pages including addendums,

and satisfied all requirements of section 381.986, Florida Statutes, as well as all

previous and proposed agency regulations. The Application was made pursuant to

Article X, section 29 of the Florida Constitution (“Constitutional Amendment”),

adopted by a supermajority of Florida citizens, and section 381.986, Florida

Statutes, the statute adopted to implement the Amendment.

The Department accepted Nelson’s extensive Application and accompanying

application fee of $60,830.00. The APA required the Department to respond

within 90 days of receiving Nelson’s completed Application. It instead waited

over 100 days after the Application was deemed complete before attempting to

deny the Application, and only then upon receipt of Nelson’s notice of default

licensure. The Department’s denial was untimely, resulting in a waiver of agency

discretion to evaluate Nelson’s Application on the merits and automatically

approving Nelson’s license, pursuant to section 120.60(1), Florida Statutes.

In addition to providing proper notice of intent to rely on default licensure,

Nelson petitioned the Department for a formal administrative hearing, pursuant to

sections 120.569 and 120.57(1), Florida Statutes. The Department did not find

Nelson’s Petition facially defective or deficient in any way. It did not dispute any

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alleged facts, but it failed to institute formal or informal proceedings. It failed to

conduct a hearing to determine whether similarly situated applicants existed in a

number exceeding the available licenses. It took no action on the Petition and did

not refer Nelson’s hearing request to the Division of Administrative Hearings

(“DOAH”) or otherwise conduct hearing as required. Instead, the Department

violated the APA a second time, by issuing a Final Order dismissing Nelson’s

Petition with prejudice and without a hearing.

Although styled as a dismissal, the Department’s Final Order includes

findings of fact and conclusions of law, incorrectly concluding that the Ashbacker

Doctrine precludes Nelson’s entitlement to a license. The Department’s legal

conclusion—that “competing entities vying for a finite number of registrations”

justifies avoidance of statutory automatic licensure—is procedurally unsupported

by any finding that there were indeed other competing entities in this case.

Moreover, the Ashbacker Doctrine is designed to protect applicants by

requiring a comparative review of batched applications for a “fixed pool” of

licenses. The Ashbacker Doctrine does not exempt agencies from the statutorily

imposed duty to respond timely to licensure requests under Chapter 120. Instead,

as this Court has recognized, automatic or default licensure does apply in the event

of a “fixed” pool of available licenses.

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The Final Order includes both procedural and substantive defects that—

individually and collectively—cause it to depart from the essential requirements of

the law. For these reasons, the Final Order is due to be reversed with direction to

the Department to immediately recognize Nelson’s MMTC license pursuant to

section 120.60(1), Florida Statutes, effective as of February 17, 2019. In the

alternative, and to the extent it may avoid potential for further delay by the

Department, Nelson is entitled to a writ of mandamus requiring the Department to

immediately license Nelson as an MMTC for all purposes under Florida law.

STANDARD OF REVIEW

An agency’s conclusions of law are reviewed de novo.1 Questions involving

statutory interpretation are also subject to de novo review.2

ARGUMENT

I. The Department’s Final Order procedurally departs from the

essential requirements of law.

a. Dismissal of a formal hearing request is improper absent an

opportunity to cure.

Upon receipt of a petition for formal hearing, the Department is required to

carefully review the petition to determine if it contains all statutorily required

1 Parlato v. Secret Oaks Owners Ass'n, 793 So. 2d 1158, 1162 (Fla. 1st DCA 2001).

2 W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012).


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information.3 If a petition does not substantially comply with the requirements or

is untimely, the Department must dismiss the petition without prejudice to amend

unless it conclusively appears from the petition’s face the defect cannot be cured.4

In considering dismissal of a petition for a hearing under section 120.57, Florida

Statutes, an agency must “accept as true the factual allegations of the petitions and

may not consider any factual matters outside the amended petitions.”5 If an agency

dismisses a petition for a hearing, the dismissal must provide specific findings,

conclusions, and reasons for the dismissal and allow the affected party to amend

the petition.6

Here, the Department found no deficiency with Nelson’s Petition. However,

it did not refer the Petition to DOAH or otherwise conduct a hearing. Instead, the

Department waited three months before entering a Final Order dismissing

Nelson’s Petition with prejudice.

Reconciling the procedural posture of a Final Order that “dismisses” a

hearing request, but simultaneously makes findings of fact and reaches a legal

conclusion on the merits is difficult. To the extent the Final Order operates as a

3 §120.569(2)(c), Fla. Stat.

4 Id.

5 St. Francis Parkside Lodge of Tampa Bay v. Dep't of Health & Rehab. Servs.,

486 So. 2d 32, 34 (Fla. 1st DCA 1986).

6 McIntyre v. Seminole Cnty Sch. Bd., 779 So. 2d 639 (Fla. 5th DCA 2001).


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dismissal, the Department erred in dismissing the Petition with prejudice and

without first providing Nelson an opportunity to cure any defects.

b. Parties with substantially affected interests are entitled to a

hearing.

The Department further erred in failing to conduct a hearing in violation of

Nelson’s due process rights and the requirements of Chapter 120. The APA

provides for an administrative hearing when actions undertaken by an

administrative agency affect one’s substantial interests.7 The right to a hearing is

generally triggered by an agency-issued order notifying the affected person of the

right to the hearing.8 The agency’s order defines the “clear point of entry” into

administrative dispute resolution.9

Here, the Department’s refusal to acknowledge Nelson’s default license

substantially affected Nelson’s interests. The denial letter operated as final agency

action and included notice that Nelson was entitled to petition for a hearing.

Nelson did so but was then improperly denied entry into the administrative dispute

resolution process.

7 §120.569(2)(b), Fla. Stat. (“all parties shall be afforded an opportunity for

hearing …”) (emphasis added); see also Perry v. Dep’t of Children and Families,

220 So.3d 546 (Fla. 3d DCA 2017) (citing § 120.569(1), Fla. Stat. (2015)).

8 Id.

9 Fla. League of Cities, Inc. v. Admin. Comm’n, 586 So.2d 397, 413 (Fla. 1st DCA

1991).



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Nelson was entitled to a hearing to compel recognition of its default license,

and the Department’s failure to provide one is reversible error. Instead, where the

Department refuses to provide a hearing, all administrative remedies are exhausted

and the application for licensure is automatically deemed approved.10

II. The Department’s Final Order substantively departs from the

essential requirements of law.

Although the Department dismissed Nelson’s Petition with prejudice, it

entered a Final Order with findings of fact and conclusions of law. The Final

Order departs from the essential requirements of law in concluding that Nelson is

not entitled to an MMTC license.

a. Nelson’s Application was automatically approved upon the

Department’s failure to comply with the express time

requirements in section 120.60, Florida Statutes.

Applicable Florida law in effect at the time of Nelson’s Application, section

381.986, Florida Statutes (2017) (the Act), required the Department to convert all

pre-existing low-thc dispensaries to MMTCs by July 2017, and to license ten more

10

Naples Cmty Hosp., Inc. v. Dep’t of Health and Rehab. Servs., 463 So.2d 375

(Fla. 1st DCA 1985) (where community hospital filed petition for formal

proceedings against agency to compel issuance of certificate of need by default,

and agency failed to forward petition to division of administrative hearings,

hospital exhausted all administrative remedies, and application was automatically

deemed approved because agency failed to act on application within the period set

forth under this section, community hospital had a legal right to compel agency to

issue a certificate of need).

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applicants as MMTCs by October 3, 2017.11

The Act further required rolling

issuance of four additional licenses within six months after registration of every

100,000 qualified patients on the medical marijuana registry.12

When Nelson applied for MMTC licensure in October 2018, the registry

included over 130,000 qualified patients with an active ID card.13 In addition to

seven “converted” dispensaries under subsection 381.986(8)(b)(1), the Department

had issued seven of the ten additional MMTC licenses under section

381.986(b)(2). 14 Because the registry exceeded 100,000 patients, four more

licenses were also available for issuance under section 381.986(4). Seven total

licenses therefore remained outstanding under sections 381.986(2) and 381.986(4)

at the time of Nelson’s Application. Four additional licenses have since become

available.15

11

§ 381.986(8)(b)(2), Fla. Stat.

12

§ 381.986(8)(b)(4), Fla. Stat.

13

Office of Med. Marijuana Use, OMMU Weekly Update October 19, 2018,

https://s27415.pcdn.co/wp-content/uploads/ommu_updates/2018/101918-OMMU-

Update.pdf.

14

Id.

15

The registry is currently over 300,000 qualified patients, requiring issuance of

four additional MMTC licenses. See Office of Med. Marijuana Use, OMMU

Weekly Update January 24, 2020, https://s27415.pcdn.co/wp-

content/uploads/ommu_updates/2020/012420-OMMU-Update.pdf.

https://s27415.pcdn.co/wp-content/uploads/ommu_updates/2018/101918-OMMU-Update.pdf




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The Department’s failure to act on Nelson’s Application within the required

time is undisputed. Nelson submitted an extensive Application for Department

licensure to operate as an MMTC. The Department did nothing for five months.

The Department failed to approve or deny Nelson’s Application within the time

prescribed by section 120.60(1), Florida Statutes. Section 120.60(1) contains

“teeth” to discourage precisely this conduct.

As a result, Nelson’s Application was deemed approved pursuant to section

120.60(1), which governs licensing and requires agencies to automatically approve

any license request not timely approved or denied, and expressly requires:

Upon receipt of a license application, an agency shall

examine the application and, within 30 days after such

receipt, notify the applicant of any apparent errors or

omissions and request any additional information the

agency is permitted by law to require. An agency may

not deny a license for failure to correct an error or

omission or to supply additional information unless the

agency timely notified the applicant within this 30-day

period.

***

An application for a license must be approved or denied

within 90 days after receipt of a completed application

unless a shorter period of time for agency action is

provided by law. The 90-day time period is tolled by the

initiation of a proceeding under ss. 120.569 and 120.57.

Any application for a license which is not approved or

denied within the 90-day or shorter time period, within

15 days after conclusion of a public hearing held on the

application, or within 45 days after a recommended order

is submitted to the agency and the parties, whichever

action and timeframe is latest and applicable, is

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considered approved unless the recommended order

recommends that the agency deny the license.16

No proceedings concerning Nelson’s Application were initiated under either

section 120.569 (decisions that affect substantial interests) or section 120.57

(additional procedures for particular cases). The 90-day time period in which the

Department could act on Nelson’s Application for MMTC licensure was therefore

not tolled.

Although not incorporated into the Final Order’s conclusions of law, and

therefore waived on appeal, the Department’s untimely denial letter contends

Nelson’s Application was “premature” due to the Department’s failure to publish a

deadline for MMTC applications. Proposed Rule 64-4.002 was undergoing rule

challenges at the time, as the Department did not propose the rule until May 1,

2018, almost one year past the statutory deadline to issue ten licenses. As the

Final Order notes, DOAH declared the Department’s proposed rule invalid in

August 2018.17 The Department neglects, however, to highlight that only a single

word in its proposed rule was declared invalid.18 The Department states only that it

16

§120.60(1), Fla. Stat. (emphasis added)

17

Louis Del Favaro Orchids, Inc. v. Dep’t of Health, DOAH 18-2838RP (Final

Order August 6, 2018).

18

Id. (holding section 381.986, Florida Statutes specifically provided a preference

for using or converting citrus facilities, not properties).

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did not appeal DOAH’s order. To date, the Department has failed to adopt an

amended rule. Certainly, the time necessary for the Department to carry out the

one-word correction and adopt a rule was well within the pendency of Nelson’s

Application.

Regardless, the Department’s inability or unwillingness to timely craft valid

rules does not obviate the APA, or delay implementation of the Act’s express time

provisions. Florida law is unequivocal: “No statutory provision shall be delayed

in its implementation pending an agency’s adoption of implementing rules unless

there is an express statutory provision prohibiting its application until the adoption

of implementing rules.”19 The Act contains no such provision. To the contrary,

both the Act and the Constitutional Amendment it implements contain deadlines to

protect against delay in implementation.

Moreover, it is not an agency’s prerogative to disregard requests for

licensure, or its obligations under the APA to respond to such requests.20 This

19

Section 120.54(1)(c), Fla. Stat.

20

Dep't of Child. & Fam. Servs. v. I.B., 891 So. 2d 1168, 1173 (Fla. 1st DCA 2005)

(notwithstanding an agency's statutory responsibility and mission, the agency must

follow the APA absent a specific statutory exemption therefrom); see also Gopman

v. Dep't of Educ., 908 So. 2d 1118, 1122 (Fla. 1st DCA 2005) (absent an

articulated statutory exemption, an agency lacks authority to effectively declare

itself exempt from the APA and its provisions).




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remains true even if the request is “premature” or otherwise defective.21 As this

Court has explained, the “legislative intent is quite clear in providing for deemed

approval of an application when the statutory time limit is violated.”22

This Court and others have invoked the APA’s mandate in section

120.60(1)—that applicants neglected are deemed approved—to approve

applications undecided past the statutory deadline.23

Automatic approval applies to

physician licenses, 24 licenses to form and operate banks; 25 accreditation of

educational institutions; 26 and issuance of environmental resource permits. 27

21

Chilito v. Dep’t of Health, 2016 WL 1255759 (Fla. DOAH Feb. 29, 2016; Fla.

Dep’t of Health May 2, 2016) (even where a legal basis exists for denial of

licensure, any application for a license which is not approved or denied within the

90-day period is considered approved).

22

Krakow v. Dep’t of Prof’l Regulation, Bd. of Chiropractic, 586 So. 2d 1271,

1272 (Fla. 1st DCA 1991) (citing World Bank v. Lewis, 425 So. 2d 77 (Fla. 1st

DCA 1982)).

23

See, e.g., Premier Int’l Travel, Inc. v. Bronson, 843 So. 2d 294 (Fla. 1st DCA

2003) (once an agency fails to act in a timely manner, it is precluded from

considering the merits of the application); Jennings v. Bd. of Clinical Soc. Work,

588 So. 2d 656 (Fla. 1st DCA 1991) (an applicant must be notified within 90 days

under section 120.60).

24

Krakow v. Dep’t of Prof’l Regulation, Bd. of Chiropractic, 586 So. 2d 1271,

1273 (Fla. 1st DCA 1991).

25

World Bank v. Lewis, 425 So. 2d 77 (Fla. 1st DCA 1982).

26

Fla. Acad. of Cosmetic Surgery, Inc. v. Dep’t of Health, Bd. of Med., 771 So. 2d

602 (Fla. 1st DCA 2000) (directing agency to approve application as accrediting



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Importantly, automatic approval also applies in “fixed pool” scenarios, such as

certificates of need to construct and operate hospitals. 28 Nothing in section

381.986, Florida Statutes, limits or precludes the applicability of section 120.60,

Florida Statutes.

Here, the Department accepted Nelson’s Application and application fee. It

then did nothing. It took no further action until Nelson tendered notice of default

licensure over 135 days later.29 The Department could have instituted proceedings

regarding Nelson’s Application within the prescribed time period. It could have

promptly denied Nelson’s Application. Instead, it failed to act, an option not

condoned by the APA. Here, in the unusual case of the Constitutional Amendment

directing Department action, its failure is especially egregious. An agency charged

with enacting reasonable regulations is not permitted, through inaction, to derail

not only a statute but also the implementation of the Constitution.

(continued…)

body due to agency’s failure to comply with the time requirements of section

120.60(1)).

27

Tuten v. Dep’t of Envtl. Prot., 819 So. 2d 187 (Fla. 4th DCA 2002).

28

Naples Comty Hosp., Inc. v. Dep’t of Health and Rehab. Servs., 463 So. 2d 375

(Fla. 1st DCA 1985).

29

The Department retained Nelson’s $60,830.00 application fee for 155 days.

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The Department does not dispute that it failed to adhere to the time

requirements in the Amendment, the Act, and section 120.60(1). Because the

Department slept on its duties as the relevant licensing agency, and failed to

approve, deny, or institute proceedings on Nelson’s Application within the allotted

time, the Application is deemed approved and the Department is compelled to issue

the license under section 120.60(1).30

b. The Department erred in concluding the Ashbacker

Doctrine precludes automatic licensure.

In its Final Order, the Department errs in concluding that “the default

licensure provision is inconsistent with the Department’s duties to fill available

MMTC slots based on a statutory need formula.” The Department’s conclusion

relies on a flawed interpretation of the Ashbacker Doctrine which requires

comparative review in a “fixed pool” of licenses, but does not operate to preclude

default licensure.

In Ashbacker Radio Corporation v. Federal Communications Commission,

the Supreme Court held that an administrative agency is not permitted to grant an

application for a mutually exclusive license without appropriate consideration, or

30

Naples Comty Hosp., Inc. v. Dep’t of Health and Rehab. Servs., 463 So. 2d 375



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comparative hearing, of another bona fide and timely filed application to render the

same service.31

In Gulf Court Nursing Center v. Dep’t of Health—also misinterpreted in the

Department’s Final Order—this Court recognized the need for comparative review

in a fixed pool of applicants to construct and operate a nursing home facility.32 The

appellant in Gulf Court was an unsuccessful applicant who sought formal hearing

review after the contested contract was awarded to two other applicants from a

previous certificate of need cycle. This Court held the two issued certificates of

need invalid, finding the agency should not have awarded certificates to pending

applicants absent a comparative hearing.

Gulf Court does not stand for the proposition that a fixed pool precludes

automatic or “default” licensure, as the Department’s Final Order contends. Gulf

Court does not address section 120.60(1) at all. It does, however, provide an

example of how the administrative hearing process should procedurally unfold,

standing in stark contrast to the Department’s truncated handling of Nelson’s

hearing request.

The third case cited in the Department’s Final Order, Bio-Medical

Applications of Ocala, Inc. v. Office of Community Medical Facilities, Department

31

Ashbacker Radio Corp. v. Fed. Commc’ns Comm’n, 326 U.S. 327, 66 S.Ct. 148,

90 L.Ed. 108 (1945).

32

Gulf Court Nursing Ctr v. Dep’t. of Health, 483 So. 2d 700 (Fla. 1st DCA 1985).



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of Health and Rehabilitative Services, similarly does not preclude default licensure

in a fixed pool. In Biomedical, the Second District Court of Appeal observed that

opposing applicants become mutually exclusive competitors where need is

determined by a fixed number of units, creating a “fixed pool” scenario.33

This

holding resulted in implementation of the batch cycle licensure system, in accord

with the Ashbacker requirement that an administrative agency must review

together timely applications to render the same service.

Here, Nelson applied in a legislatively constructed fixed pool due to the

statutorily imposed limits on the number of available MMTC licenses. This Court

recently addressed the constitutionality of those limits, finding them unreasonable

and certifying the question to the Florida Supreme Court.34 The Florida Supreme

Court accepted review, and the constitutionality of the current structure of a fixed

pool of MMTC licenses is now pending.35 If the Florida Supreme Court agrees that

33

Bio-Med. Applications of Clearwater, Inc. v. Dep’t of Health and Rehab. Servs.,

Office of Cmty. Med. Facilities, 370 So. 2d 19 (Fla. 2d DCA 1979).

34

Fla. Dep’t of Health v. Florigrown, LLC, 2019 WL 294332944 (Fla. 1st DCA

2019). 35

Fla. Dep’t of Health v. Florigrown, LLC, 2019 WL 5208142 (Fla. October 16,

2019) (Accepting the certified question: “Whether the Plaintiffs have demonstrated

a substantial likelihood of success on the merits of their claims that the statutory

requirements of vertical integration and caps on the number of medical marijuana

treatment center licenses as set forth in section 381.986(8), Florida Statutes, are in

direct conflict with Article X, Section 29, of the Florida Constitution.”)



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the statutory limits are unconstitutional, then there is no fixed pool and the

Department’s position taken in its Final Order is rendered moot. However,

regardless of whether the MMTC license pool remains “fixed” following the

Supreme Court’s consideration, Ashbacker does not apply to bar Nelson’s default

licensure under the APA and the Final Order cannot stand.

As recognized in Naples Community Hospital, Inc. v. Department of Health

and Rehabilitative Services, default licensure can occur in a fixed pool.36

In

Naples, this Court reviewed the denial of one applicant’s motion to intervene in a

mandamus action filed by another applicant to claim by default licensure a

certificate of need approving construction of an acute care hospital. The proposed

intervenor, another applicant for the same certificate of need, claimed a direct

interest in the mandamus action. This Court determined that if the first hospital

received its certificate of need via mandamus it would have a direct bearing on the

proposed intervenor’s application. As such, this Court held the proposed

intervenor held a direct interest in the litigation.37

Naples therefore implicitly recognizes the right to a default license in a fixed

pool. Following Naples, and absent any contrary case law on point, the Ashbacker

36

Naples Community Hosp., Inc. v. Department of Health and Rehabilitative

Services, 463 So. 2d 375 (Fla. 1st DCA 1985) (holding hospital entitled to

intervene in action for writ of mandamus to issue default license).

37

Id.

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Doctrine cannot be construed to preclude default licensure. By failing to respond

to Nelson’s Application within the time allotted by the APA, the Department

waived any opportunity to do so. Nelson’s Application was deemed approved in

February 2019. Its statutory license vested at that time, and includes reasonable

conditions as authorized by law and existing at the time of the license. This Court

should therefore reverse the Department’s Final Order, and remand with directions

for the Department to recognize Nelson’s license without further delay.

III. Nelson is well-qualified, uniquely situated, and subject to the

same regulations as existing MMTCs, such that recognition of

its licensure will not disrupt the status quo.

a. Nelson is well-qualified.

Nelson is a licensed Florida nursery and ongoing cultivation center in

business for over 55 years. Nelson is experienced in growing flowering plants, as

well as produce for human consumption. Nelson’s prize cultivar is roses,

notoriously difficult to grow in high-humidity environments. Nelson’s cultivation

history includes successfully introducing numerous new plant species and varieties

to Florida’s challenging climate.

Nelson’s existing infrastructure includes a large, centrally located multi-

greenhouse facility with five acres of indoor grow space, an irrigation system, on-

site well, and bays for shipping and receiving. Before submitting its Application,

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Nelson obtained zoning pre-approval to grow medical marijuana in this location, as

well as pre-approval for multiple dispensary locations.

To complete its Application, Nelson commissioned contractors, architects,

and engineers to draw preliminary plans, provide equipment quotes, and evaluate

construction costs unique to this project. It retained marketing professionals to

design product packaging, branding, and educational materials. It formed

contingent consulting and in-house relationships with the experts and personnel

necessary to safely and securely grow, process, and distribute high-quality medical

marijuana. Nelson is committed to a diverse and inclusive culture, with core

personnel of diverse backgrounds, including individuals of African-American and

Hispanic descent, as well as veterans and women.

Nelson’s detailed capitalization plan, two-year operating budget, and bank

statements demonstrate it is fully funded with $10,000,000 in liquid, available

capital. With its existing infrastructure, investor backing, completed marketing

materials, and equipment list, Nelson is able to almost immediately begin safely

producing medical marijuana.

b. Nelson is procedurally unique and subject to stringent

quality controls.

Nelson’s situation is procedurally unique, such that recognition of its license

will not “open the flood gates” to other applicants. Nelson filed a completed

Application fully compliant with the Act, fully compliant with the Department’s

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regulations, and accompanied by a $60,830.00 filing fee. The Department then

grossly mishandled the Application, resulting in automatic licensure under the

APA. The Department declined to recognize Nelson’s license but presented a

point of entry to challenge its decision. Nelson properly followed all procedural

avenues and exhausted all administrative remedies, which were again mishandled

by the Department.

Further, Nelson’s licensure does not in any way endanger Florida’s qualified

medical marijuana patient population. At the time Nelson submitted its

Application, 14 MMTCs were already subject to the Department’s oversight; 22

are currently. The Department has developed over two years’ experience

regulating MMTCs. On November 3, 2017, it adopted regulations pursuant to its

constitutional authority governing applications for Registration of MMTCs which

detail the necessary requirements of security, record keeping, testing, labeling,

inspection and safety (the “Constitutional Regulations”).38 Nelson’s Application

complies with these requirements, and those in the Act.

In its detailed Application, Nelson demonstrates ability to comply with all

reasonable regulations in place, and commits to food-grade good manufacturing

practices, third party testing, and seed-to-sale product tracking. Nelson’s MMTC

activities will meet the rigorous quality control methods set forth in its own

38

Fla. Admin. Reg., Vol. 43, No. 214, pp. 5030-35 (Nov. 3, 2017).

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Application, which was prepared in thorough compliance with the Act, Fla. Admin.

Code Emergency Rule 64ER17-2, Proposed Rule 64, and the Department’s

Constitutional Regulations. Nelson’s cultivation, processing, and dispensing

activities will be subject to these stringent requirements. Nelson will also be

required to complete pre-licensure inspections as required by law. 39 Upon

satisfactory completion of any required pre-licensure inspection, it can quickly and

safely begin providing quality medical marijuana to Florida’s underserved patient

population.

IV. The Department’s Final Order must be reversed with

directions to recognize Nelson’s license or, in the alternative,

Nelson is entitled to a Writ of Mandamus directing the

Department to immediately register Nelson as a Florida

MMTC.

Mandamus is a remedy by which administrative officials or agencies may be

coerced to perform ministerial duties which they have a clear legal duty to

perform.40

“In order to be entitled to a writ of mandamus, the petitioner must have

a clear legal right to the requested relief, the respondent must have an indisputable

legal duty to perform the requested action, and the petitioner must have no other

39

§ 120.60(1), Fla. Stat. (“Subject to the satisfactory completion of any

examination if required as a prerequisite to licensure, any license that is considered

approved shall be issued and may include such reasonable conditions as are

authorized by law).

40

Fair v. Davis, 283 So. 2d 377 (Fla. 1st DCA 1973).

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adequate remedy available.”41

The duty of the respondent in a mandamus action

must be ministerial in nature, and not discretionary.42

A duty is ministerial when “there is no room for the exercise of discretion,

and the performance being required is directed by law.”43

Official action is

considered ministerial when it results from performance of a specific duty arising

from legislatively designated facts. A ministerial duty is one positively imposed

by law to be performed at a time and in a manner or upon conditions specifically

designated by the law itself absent any authorization of discretion to the agency.44

Recognition of licenses automatically issued or approved pursuant to section

120.60(1), Florida Statutes, is a ministerial duty appropriately directed through a

writ of mandamus.45

Here, Nelson has a clear right to recognition of its MMTC license. There is

no dispute the Department accepted and then failed to act on Nelson’s Application

41

Putnam Cty. Envtl. Council v. Johns River Water Mgmt. Dist., 168 So. 3d 296,

298 (Fla. 1st DCA 2015) (quoting Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000)).

42

Wuesthoff Mem’l Hosp. Inc. v. Fla. Elections Comm’n, 795 So. 2d 179, 180 (Fla.

1st DCA 2001).

43

Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996).

44

Solomon v. Sanitarians’ Registration Bd., 155 So. 2d 353 (Fla. 1963) (citing

First Nat’l Bank of Key West v. Filer et al., 145 So. 204 (Fla. 1933).

45

Fla. Acad. of Cosmetic Surgery, Inc. v. State, Dep’t. of Health, 771 So. 2d 602


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within the time constraints defined by section 120.60, Florida Statutes. The APA

is intended to increase administrative agency accountability to the Florida

legislature and citizens. Its purpose is to establish rules enabling agency action and,

where necessary, sanctioning inaction. Its directives are mandatory and

unequivocal. For over 135 days after receiving Nelson’s Application, the

Department identified no error or omission, requested no additional information,

and neither approved nor denied the Application. As a result, Nelson’s license was

automatically approved in February 2019. The Department then refused to

recognize Nelson’s default licensure, incorrectly arguing that automatic licensure

does not apply in this situation. The Department cannot selectively exempt itself

from the APA protocols established to prevent agency inaction.

To the contrary, it is all the more important the APA is enforced against an

agency endeavoring to ignore both constitutional and legislative mandates. The

Amendment and—to the extent it does not conflict with the Constitution—the Act

are the law of the land. Each expressly provides that time is of the essence in

licensing MMTCs. Both the Amendment and the Act include very specific

timelines making licenses available by certain dates and benchmarks. These

deadlines are not recommendations or suggestions. The Department does not have

discretion to determine when licenses become available. Pursuant to the Act,

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seven MMTC licenses were available at the time Nelson applied. In February

2019, Nelson became lawfully entitled to one of those licenses.

The Department’s disregard of the Act, the Florida Constitution, and the will

of Florida’s citizens is evident not just in its mishandling of Nelson’s

Application—it is prevalent in the Department’s failure to adhere to other judicial

and statutory mandates governing Florida’s adoption of medical marijuana. The

Department missed the APA’s statutorily established deadline to respond to

Nelson’s Application, as it has missed deadlines to publish required rules under

section 381.986, missed deadlines to issue required licenses, and refused to

accomplish a one-word correction in its proposed rule and seek adoption.

It is incumbent upon this Court to reinforce the balance of governmental

power by holding the Department accountable for its recalcitrant position. The

executive branch, through its administrative arm, does not enjoy the privilege to

obstruct implementation of the Constitutional Amendment accomplished by the

overwhelming vote of Florida’s citizens, or laws duly enacted by the legislature.

In this instance, there are predetermined statutory consequences. By missing

the deadline to respond to Nelson’s Application established by the APA, the

Department waived its ability to do so, and Nelson’s license automatically issued.

Following exhaustion of its administrative remedies and the Department’s

continuing refusal to register Nelson as a licensed MMTC, Nelson has no other

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adequate remedy at law. The Department does not have discretion on the matter—

it must recognize Nelson’s license automatically issued under the express language

of the APA. The Department’s duty to recognize Nelson’s license is ministerial in

nature, and is required by law.

Accordingly, Nelson is entitled to a writ of mandamus directing the

Department to recognize its license, and to immediately register Nelson as an

MMTC under Florida law.

CONCLUSION

The Department erred in refusing Nelson’s entitlement to default licensure,

refusing to grant a hearing, and dismissing with prejudice Nelson’s Petition for

Administrative Hearing. Nelson has exhausted all administrative avenues, to no

avail. This Court should reverse the Department’s Final Order and remand or

issue a writ of mandamus directing the Department to immediately register Nelson

as a MMTC for all purposes under Florida law, effective as of February 2019, and

subject to all applicable rules and regulations existing at the time of Nelson’s

Application.

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Respectfully submitted,

/s/ Robert O. Beasley

Robert O. Beasley







Telephone: (850) 432-9818

Counsel for Appellant,


/s/ Jessica L. Scholl

Jessica L. Scholl




Pensacola FL 32502

Telephone: (850) 434-3541



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true copy of the foregoing was furnished to counsel

below by electronic mail this 27th

day of January, 2020.

Robert O. Beasley, Esq.






Telephone: (850) 432-9818

[email protected]

[email protected]

Counsel for Appellant

Sarah Young Hodges, Esq.

Chief Appellate Counsel

Office of the General Counsel

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-1703

Telephone: (850) 354-3367

[email protected]

Counsel for Appellee

Michael Williams, Esq.

Chief Legal Counsel

Office of the General Counsel

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1703

Telephone: (850) 245-4005

[email protected]

Counsel for Appellee

mailto:[email protected]




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CERTIFICATE OF COMPLIANCE

Pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), counsel for

Appellant certifies this brief complies with the applicable font requirements as it is

written in 14-point Times New Roman font.

DATED: January 27, 2020

/s/ Jessica L. Scholl

Jessica L. Scholl




Pensacola FL 32502

Telephone: (850) 434-3541



filing # 102298836 e-filed 01/27/2020 04:58:13 pm case no

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