Hillsborough County v. Giambrone
CourtDistrict Court of Appeal of Florida
Date FiledJuly 29, 2026
Docket2D2025-0115
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
HILLSBOROUGH COUNTY,
Appellant,
v.
ANGELO GIAMBRONE,
Appellee.
No. 2D2025-0115
July 29, 2026
Appeal from the Circuit Court for Hillsborough County; Melissa M. Polo,
Judge.
Stephen M. Todd, Senior Assistant County Attorney, Tampa, for
Appellant.
Michael C. Minardi of Minardi Law, PLLC, Tampa, for Appellee.
James Uthmeier, Attorney General, and Foster H. Swartz, Solicitor
General Fellow, Jeffrey Paul DeSousa, Acting Solicitor General, and
Jason J. Muehlhoff, Chief Deputy Solicitor General, Tallahassee, for
Amicus Curiae.
LABRIT, Judge.
Hillsborough County appeals a final judgment that awards Mr.
Angelo Giambrone back pay and compensatory damages, and also
prospectively prohibits the County from "discriminating against"—and
requires the County to "provide an accommodation" to—any employee
who presents a medical marijuana card after testing positive for
marijuana, so long as there is "no evidence" the employee used, or was
under the influence of, medical marijuana at work, on County property,
or in a County vehicle. The underlying summary judgment order rests
on three core premises: (1) that a medical marijuana card qualifies as
"Prescription or Nonprescription Medication" under the governing
collective bargaining agreement (CBA), such that a Medical Review
Officer (MRO) was required to "verify the test as negative"; (2) that
Florida's medical marijuana constitutional amendment affirmatively
requires "Qualified Patients" to be allowed to use medical marijuana off-
site and correspondingly requires employers to accommodate that use;
and (3) that, as a result, the County could not discipline Mr. Giambrone
based on a positive test absent proof of on-duty impairment. Those
premises cannot be squared with the governing texts or with the limited
role of the judiciary in adjudicating individual employment disputes.
Therefore, we reverse.1
I. Background
A. Facts and Procedural History
In the order granting Mr. Giambrone's motion for summary
judgment, the trial court relied on the following undisputed facts. Mr.
Giambrone worked for Hillsborough County Fire Rescue as a firefighter
paramedic. On February 26, 2019, he was selected for a random urine
drug test, and the County received the results on March 1, 2019,
showing a positive test for marijuana. The County did not select Mr.
Giambrone for testing because of any workplace incident; the trial court
1 We emphasize at the outset the narrowness of our decision: this
appeal turns on the interaction between Florida's constitutional and
statutory framework for medical marijuana and the County's drug-free
workplace policy as applied to employees covered by this particular CBA.
How other employers, or employees subject to different CBAs or different
policies, may address medical marijuana is not before us.
2
found the screening "was strictly random," and it also found, based on
the County's admissions, no evidence that (a) Mr. Giambrone used or
possessed marijuana on work premises or during work hours; (b) Mr.
Giambrone had any work performance evaluations alleging impairment;
or (c) Mr. Giambrone's employment record reflected any prior complaint
or suspicion of impairment. The County placed him on unpaid
administrative leave based on the positive test, and he has remained on
that status through the inception of this appeal.
After being placed on unpaid administrative leave, Mr. Giambrone
filed this civil action against the County. Mr. Giambrone's complaint
asserted (1) a Florida Civil Rights Act claim premised on a failure to
accommodate, (2) a "wrongful termination" claim premised on the
County's refusal to accept the medical marijuana card as justification for
the positive result under the County's drug-free workplace policy and the
CBA, (3) a claim alleging failure to update the County's drug-free
workplace policy, and (4) a breach of contract claim alleging violations of
the County policy and the CBA. After discovery, both sides moved for
summary judgment, and in December 2024, the trial court entered an
order granting Mr. Giambrone's amended motion for final summary
judgment and denying the County's motion.
Thereafter, the trial court entered a final judgment that granted Mr.
Giambrone relief on the pleaded counts and, in addition, awarded broad
prospective relief directed beyond the individual dispute—mandating that
the County must "provide an accommodation to employees who present a
valid State of Florida Medical Marijuana Card after testing positive for
marijuana" so long as there is "no evidence" of on-duty use, possession,
or working "under the influence."
3
B. The Governing Texts
At all relevant times, Mr. Giambrone's employment was governed
by the CBA,2 which contains a detailed "Substance Abuse Policy."
Section 40.1(A) of the CBA broadly prohibits all employees from using,
possessing, or being under the influence of a drug while at work, on
County property, in a County vehicle, or while displaying a County logo.
Notably, the CBA also prohibits employees from engaging in the same
conduct "at any time while employed by Hillsborough County Fire
Rescue, other than alcohol or prescribed medications." The CBA defines
"Drugs" to mean cannabinoids as well as alcohol and other listed
substances (including various prescription drugs such as opiates and
benzodiazepines) and their metabolites—reflecting a negotiated testing
regime that extends well beyond criminally prohibited substances. The
CBA separately prohibits all employees "from reporting to work when it is
determined that the employee is Impaired," and it defines "Impaired" to
mean "a confirmed positive drug test" based on any testing described in
the agreement.
The CBA provides for "Random Drug Testing," under which up to
five employees may be selected each pay period, and provides that "[a]ll
Employees will be placed on paid administrative leave until a
Confirmation Test can be performed and/or a valid result is obtained."
For a "First Time Confirmed Positive Drug Test," the CBA contemplates a
referral to treatment and rehabilitation, placement on leave without pay
during the program, and a required return-to-work drug test, and it
2 The CBA is between the Hillsborough County Board of County
Commissioners and the International Association of Firefighters, Local
2294. An express purpose of the CBA is to "set forth the entire
agreement between the parties concerning wages, hours, and terms and
conditions of employment" for firefighters employed by the County.
4
provides that "[a] negative test result must be obtained prior to an
employee returning to work," followed by "Follow-up Drug Testing."
The CBA also defines "Prescription or Nonprescription Medication"
as "a drug or medication obtained pursuant to a prescription as defined
by s[ection] 893.02 or a medication that is authorized pursuant to federal
or state law for general distribution and use without a prescription in the
treatment of human diseases, ailments, or injuries." The referenced
statute, section 893.02(24), Florida Statutes (2019), in turn, defines a
"Prescription" as an order that, among other things, "is intended to be
dispensed by a person authorized by the laws of this state to do so, and
[which] meets the requirements of s[ection] 893.04."
In addition to the CBA, the County maintained a countywide drug-
free workplace policy3 that sets drug and alcohol testing procedures,
including reasonable suspicion testing, postaccident and postinjury
testing, and random testing for certain safety-sensitive positions. Under
the policy's "Over the Counter or Prescription Drugs" provision,
employees and applicants "should confidentially report the use of
prescription or nonprescription medications to the County's Medical
Review Officer (MRO) when contacted by the MRO," and they have an
opportunity to "contest or explain the result to the MRO within five
working days after written notification of the positive test result." The
policy provides that if the employee's explanation or challenge is
"unsatisfactory to the MRO, the MRO shall report a positive test result
back to the employer" but "[i]f an employee or job applicant has provided
an adequate explanation regarding prescription or non-prescription drug
3 As the trial court correctly noted, the drug-free workplace policy
and the CBA are contracts that bind both the County and Mr.
Giambrone.
5
use that may affect the test results, the MRO will verify the test as
negative and report back to the employer."
The "Failure to Comply With Policy" section provides that the
County "retains the absolute right to terminate an employee for first-time
verified positive test results . . . without offering the benefit of a
rehabilitation program," and it states that participation in a
rehabilitation program "does not restrict" the County's right to discipline
the employee "up to and including termination, even for a single
violation." Where rehabilitation is offered following a first-time positive,
the policy provides that the employee "will be immediately removed from
work" and may return only after completing recommended treatment and
obtaining "a negative test result on a return-to-duty drug test," followed
by unannounced follow-up testing; it further states that rehabilitation
"will not be offered for a second time positive" and that the employee "will
be terminated from employment."
Florida's constitutional and statutory medical marijuana provisions
are jugular to resolution of this dispute. The Florida Constitution
provides that "[t]he medical use of marijuana by a qualifying patient . . .
is not subject to criminal or civil liability or sanctions under Florida law,"
but it also states that "[n]othing in the section requires the violation of
federal law or purports to give immunity under federal law" and that
"[n]othing in the section shall require any accommodation of any on-site
medical use of marijuana in any . . . place of . . . employment." Art. X,
§ 29(a)(1), (c)(5), (c)(6), Fla. Const. The implementing statute similarly
provides, in its "Applicability" subsection, that it "does not limit the
ability of an employer to establish, continue, or enforce a drug-free
workplace program or policy . . . [and it] does not require an employer to
accommodate the medical use of marijuana in any workplace or any
6
employee working while under the influence of marijuana"; the statute
further provides that it "does not create a cause of action against an
employer for wrongful discharge or discrimination." § 381.986(15)(a)–(c),
Fla. Stat. (2019).
II. The Summary Judgment Rests on Legal Error
A. Standard of Review
We review the entry of summary judgment de novo. See Volusia
County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000). Contract interpretation is a question of law and is likewise
reviewed de novo. See Fitness Int'l, LLC v. 93 FLRPT, LLC, 361 So. 3d
914, 918 (Fla. 2d DCA 2023).
B. Medical Marijuana Is Neither a Prescription nor a
Nonprescription Medication Under the CBA
The trial court determined that medical marijuana is "considered a
prescription or akin to a prescription, as it is an order for drugs written
by a licensed doctor . . . [and] nowhere in [the CBA] is medical marijuana
enumerated as distinct from all other prescribed medications." As the
County correctly argues, the trial court reversibly erred in so concluding,
and that error permeates the order on review. The trial court's CBA
analysis starts in the right place—the CBA's definition of "Prescription or
Nonprescription Medication"—but then departs from the actual words of
that definition. As the trial court recognized, section 40.2(L) of the CBA
defines "Prescription or Nonprescription Medication" as "a drug or
medication obtained pursuant to a prescription as defined by s[ection]
893.02 or a medication that is authorized pursuant to federal or state
law for general distribution and use without a prescription in the
treatment of human diseases, ailments, or injuries." Treating this
provision as a "broad definition" that "encompasses medications
authorized under federal or Florida law," the trial court ultimately
7
concluded that medical marijuana is a medication authorized for general
distribution because Florida has "over 880 thousand [medical marijuana]
patients" and "over 650 retail stores to distribute medical marijuana." As
we will explain, marijuana is neither a medication "obtained pursuant to
a prescription as defined by s[ection] 893.02," nor one that is authorized
by "federal or state law for general distribution and use without a
prescription."
1. Medical Marijuana Is Not a Prescription Medication Under
the CBA
Medical marijuana does not fit within the first clause of section
40.2(L) of the CBA because it is not "a drug or medication obtained
pursuant to a prescription as defined by s[ection] 893.02." Section
893.02(24) defines a "Prescription" as an order for drugs or medicinal
supplies that, among other things, is "intended to be dispensed by a
person authorized by the laws of this state to do so, and [which] meets
the requirements of s[ection] 893.04." Under ordinary rules governing
incorporation by cross-reference, the reference to section 893.04 is part
of what the defined term means; it is not surplus. See, e.g., Van Pelt v.
Hilliard, 78 So. 693, 698 (Fla. 1918) ("In the construction of such
statutes the statute referred to is treated and considered as if it were
incorporated into and formed part of that which makes the reference.").
The statutory definition therefore requires, as a condition of qualifying as
a "prescription," that the order be one that can "meet[] the requirements
of s[ection] 893.04."
That matters because section 893.04 creates a pharmacist
dispensing framework: it authorizes "[a] pharmacist"4 to dispense
4 Under section 893.02(19), " 'Pharmacist' means a person who is
licensed pursuant to chapter 465 to practice the profession of pharmacy
in this state."
8
controlled substances "upon a written, oral, or electronic prescription,"
and it then imposes the detailed requirements governing that
prescription dispensing system. See Cohn v. Dep't of Prof'l Regul., 477
So. 2d 1039, 1041 (Fla. 3d DCA 1985) ("A pharmacist . . . may dispense
controlled substances upon a written or oral prescription." (emphasis
omitted) (quoting § 893.04(1))); see also § 893.04(1)(b)–(g), (2)(a)–(f)
(requiring, among other things, that prescriptions be dated and signed
when issued, include specified identifying information, be retained on
file, and comply with refill and quantity limits). When the contractual
definition uses "prescription as defined by s[ection] 893.02" and section
893.02(24) requires that the prescription "meet[] the requirements of
s[ection] 893.04," the combined effect is to define a "prescription" as an
order that is legally capable of being dispensed by a pharmacist licensed
under chapter 465 in compliance with section 893.04.
Medical marijuana does not pass through that system; it is
dispensed through a separate regime specifically created for that
purpose. The trial court attempted to avoid this conclusion by declaring
that a medical marijuana treatment center "fits the definition of [a]
Special Pharmacy" under section 465.003(11)(a)4, Florida Statutes
(2019). But that label cannot be reconciled with the governing statutory
text. Chapter 465 defines a "special pharmacy" as a location where
"medicinal drugs are compounded, dispensed, stored, or sold." See
§ 465.003(11)(a)4. "Medicinal drugs," in turn, are limited to
"prescription" or "legend" drugs that federal or state law requires to be
dispensed "only on a prescription." See § 465.003(8). And chapter 465's
operative definitions confirm that this is a pharmacist-centered
prescription system: "dispense" means "the transfer of possession" of a
9
medicinal drug "by a pharmacist," see § 465.003(6), and a "pharmacist"
is a person licensed under chapter 465, see § 465.003(10).
Medical marijuana does not operate within that framework. Florida
law defines "medical use" of marijuana as conduct "authorized by a
physician certification," not a prescription, see § 381.986(1)(j), and the
legislature expressly provided that a licensed medical marijuana
treatment center and its employees "are not subject to licensure or
regulation under chapter 465" for "dispensing" marijuana.
§ 381.986(14)(e). The trial court's "special pharmacy" finding thus
collapses two distinct statutory regimes—one built around pharmacist
dispensed prescription drugs, the other built around physician
certification and licensed treatment centers—and it cannot supply the
predicate for treating medical marijuana as a chapter 465 "pharmacy"
product in the first place.
The upshot is straightforward, and it follows from the statutory
architecture the parties incorporated. Section 40.2(L)'s first clause is
keyed to a "prescription as defined by s[ection] 893.02," and that
definition in turn requires an order that is legally capable of being
dispensed through the pharmacist-centered system described in section
893.04. Medical marijuana is obtained by physician certification and
dispensed through licensed treatment centers under a separate statutory
regime—not by pharmacists pursuant to section 893.04—and the trial
court's attempt to recharacterize a medical marijuana treatment center
as a "special pharmacy" under chapter 465 cannot rewrite those
threshold statutory definitions. Accordingly, even if a medical marijuana
authorization card resembles a prescription in function or appearance, it
10
is not a "prescription" as the CBA defines that term by incorporation, and
it therefore cannot satisfy section 40.2(L)'s first clause.5
2. Medical Marijuana Is Not a Nonprescription Medication
Under the CBA
Turning to the second clause of section 40.2(L), the trial court's
reasoning replaces that clause's limiting words—"general distribution
and use without a prescription"—with a very different concept:
widespread participation in a regulated program. The second clause is
not satisfied by showing that a medication is "authorized" in any sense;
the CBA requires that the medication be authorized under state or
federal law "for general distribution and use without a prescription."
Medical marijuana is not authorized for "general distribution and
use without a prescription" under federal law; to the contrary, federal law
wholly prohibits such conduct with respect to marijuana. See 21 U.S.C.
§ 812(c) (2018); 21 U.S.C. § 844(a) (2018); see also Beckman v. Collier
Cnty. Bd. of Cnty. Comm'rs, No. 2:24-cv-585-JES-DNF, 2026 WL 91580,
at *3 (M.D. Fla. Jan. 13, 2026) (summarizing that under the Controlled
Substances Act "mere possession of marijuana is a federal crime
everywhere in the United States").6 Nor is medical marijuana authorized
5 Other courts construing analogous medical marijuana regimes
have likewise recognized the same basic point: a medical marijuana
registry card or physician "authorization" is not a "prescription," and
marijuana's federal classification precludes it from being "prescribed" in
the ordinary controlled substances sense. See Beinor v. Indus. Claim
Appeals Off., 262 P.3d 970, 974 (Colo. App. 2011) (observing that
"[m]arijuana, in contrast, remains a Schedule I controlled substance
under the applicable federal statute and consequently cannot be
prescribed" and concluding that medical use by an employee holding a
registry card "is not pursuant to a prescription").
6 After oral argument, but before issuance of this opinion, the
Acting Attorney General for the United States issued a final rule, effective
April 28, 2026, placing FDA-approved drug products containing
11
pursuant to Florida law for "general distribution and use without a
prescription"; it is dispensed through a patient-specific regime limited to
"medical use by a qualified patient." See Baxter v. State, 389 So. 3d 803,
marijuana and marijuana subject to a state medical marijuana license
into federal schedule III. See Schedules of Controlled Substances:
Rescheduling of Food and Drug Administration Approved Products
Containing Marijuana From Schedule I to Schedule III; Corresponding
Change to Permit Requirements, 91 Fed. Reg. 22,714, 22,714–15, 22,719
(Apr. 28, 2026) (to be codified at 21 C.F.R. pts. 1300, 1301, 1308, 1312).
We are aware of that change, but it does not alter our analysis for two
independent reasons.
First, even under the new federal rule, state licensed medical
marijuana is still not authorized for general distribution and use in the
manner contemplated by section 40.2(L)'s nonprescription clause. It
remains limited to medical purposes, to users authorized by state law,
and to dispensing through licensed entities under a controlled regulatory
regime. See 91 Fed. Reg. at 22,721-22 (creating a registration framework
for state licensees and providing that registrants may dispense
marijuana only to individuals "authorized by state law to possess
marijuana . . . for medical purposes"); id. at 22,722 (providing that a
state-law "certification or other document" sufficient to obtain marijuana
for medical purposes will suffice to permit dispensing). That is not the
same thing as an over-the-counter drug made available for general public
distribution and use without individualized medical authorization.
Indeed, schedule III drugs ordinarily remain subject to a prescription-
based dispensing framework. See 21 U.S.C. § 829(b) (2018) (providing
that, absent direct dispensing by a practitioner, no schedule III or IV
prescription drug "may be dispensed without a written or oral
prescription"); 21 U.S.C. § 829(d) (separately addressing "[n]on-
prescription drugs with abuse potential").
Second, and in any event, this civil controversy is governed by the
law in effect when the cause of action arose, not by a later federal rule
change that occurred while the appeal was pending. Cf. Abner v. Lyft
Fla., Inc., 422 So. 3d 1226, 1229 (Fla. 3d DCA 2025) ("We apply the law
in effect at the time the cause of action accrued."). When the events
underlying this dispute occurred in 2019 and when this action was filed
in 2020, marijuana remained in federal schedule I and federal law did
not authorize its use in any circumstance. Thus, the intervening federal
rescheduling does not affect the disposition of this appeal.
12
809–10 (Fla. 5th DCA 2024) (en banc) (emphasis omitted) (quoting
§ 381.986(g), Fla. Stat. (2021)).
A category limited to medications authorized "for general
distribution and use without a prescription" cannot be read as a catchall
for any medication that is lawful or available in Florida. That
interpretation would deprive the limiting phrase "for general distribution
and use without a prescription" of any work to do—effectively rewriting
the second clause into "any medication authorized under state law"—and
would largely collapse the CBA's two-part definition by making the
separate "prescription as defined by s[ection] 893.02" prong unnecessary
in practice. See Publix Super Mkts., Inc. v. Wilder Corp. of Del., 876 So.
2d 652, 654 (Fla. 2d DCA 2004) (rejecting a construction that would
make contractual language "absolutely useless" and reiterating that
courts must "construe contracts in such a way as to give reasonable
meaning to all provisions" (quoting Hardwick Props., Inc. v. Newbern, 711
So. 2d 35, 40 (Fla. 1st DCA 1998))).
3. The MRO Was Not Required to Report the Test as
Negative
Once section 40.2(L) is read as written, the rest of the trial court's
CBA analysis crumbles. The order states that after the positive test, Mr.
Giambrone "timely provided the MRO with his state issued medical
marijuana card as justification of the positive test result," and it treats
that card as requiring the MRO to "verify the test as negative." And the
"verification as negative" mechanism is triggered when the employee
provides an "adequate explanation regarding prescription or non-
prescription drug use." But a medical marijuana card is neither "a
prescription as defined by s[ection] 893.02" nor evidence that marijuana
is "authorized . . . for general distribution and use without a
prescription."
13
In sum, the trial court's conclusion that the County was
contractually obligated to treat a positive test as negative rests on a
premise that is wholly unsupported and is in fact contradicted by the
CBA's text. Judgment cannot be sustained on a judicial rewriting of
unambiguous definitions. See Lambert v. Berkley S. Condo. Ass'n, 680
So. 2d 588, 590 (Fla. 4th DCA 1996) ("[W]hen a document's language is
clear, a court cannot indulge in construction or interpretation of its plain
meaning." (citing BMW of N. Am., Inc. v. Krathen, 471 So. 2d 585, 587
(Fla. 4th DCA 1985))).
C. The Trial Court Improperly Narrowed the CBA's Drug
Prohibitions
The trial court did not limit its analysis to the definition of
"Prescription" and "Nonprescription." It also construed the CBA's
substance abuse prohibitions in a manner that materially narrows their
scope. The order states that the "plain language" of section 40.1(A) of the
CBA "only prevents" employees from using substances or illegal drugs in
four circumstances: while at work, on County property, in County
vehicles, or while reporting to work "under the influence." Under the trial
court's lights, the policy is essentially cabined to on-duty conduct or the
employee's condition at the start of a shift; absent proof of on-duty use or
contemporaneous impairment, the employer's rules would not be
triggered.
But, as the County correctly notes, that construction is
irreconcilable with the operative text the trial court itself quoted. The
quoted prohibition is not limited to on-duty use. It prohibits a broad
range of conduct—use, possession, consumption, purchase, sale,
distribution, transfer, and being "under the influence" of a "[d]rug"—and
then lists multiple independent settings in which that prohibition
applies. Subsections (1) through (3) of section 40.1(A) address the
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settings the trial court emphasized. The same provision, however,
includes an additional and distinct prohibition in subsection (5):
employees are prohibited from using drugs "at any time while employed
by Hillsborough County Fire Rescue, other than alcohol or prescribed
medications." The trial court's repeated characterization of section
40.1(A) as a "workplace only" rule nullifies subsection (5) and
impermissibly ignores the "at any time while employed" language.
That approach is not permissible as a matter of interpretation.
Courts must construe text so as to give effect to all of its material terms,
rather than adopting a reading that renders an express clause
inoperative. See Publix Super Mkts., Inc., 876 So. 2d at 654. And the "at
any time while employed" language is not an idle appendage. In a public
safety setting—and particularly for first responders who may be subject
to call-back and emergency deployment—such language reasonably
reflects an expectation of continuous fitness and readiness, not merely
the absence of observed impairment during scheduled duty hours. The
order's analysis, by imposing a workplace-only limitation that the text
does not contain, substitutes the trial court's narrower rule for the
broader rule adopted in the CBA.
D. The Florida Constitution and Section 381.986 Do Not
Create an Accommodation Mandate
The trial court's constitutional analysis reflects a similar inversion
of the actual operative text. Quoting the limitation clause of article X,
section 29(c)(6) of the Florida Constitution—"[n]othing in this section
shall require any accommodation of any on-site medical use of marijuana
in any . . . place of education or employment, or of smoking medical
marijuana in any public place"—the trial court reasoned that the
constitutional provision "therefore requires people be able to use medical
marijuana in private." The order goes further, stating, "The pertinent
15
section requires that 'Qualified Patients' be allowed to use medical
marijuana off site and employers are required to make accommodations,"
invoking expressio unius est exclusio alterius. See Crews v. Fla. Pub.
Emps. Council 79, AFSCME, 113 So. 3d 1063, 1071 (Fla. 1st DCA 2013)
(describing expressio unius as "the expression of one thing implies the
exclusion of the other" (citing Smalley Transp. Co. v. Moed's Transfer Co.,
373 So. 2d 55, 56 (Fla. 1st DCA 1979))).
That is precisely backwards. What the trial court did was
manufacture an affirmative accommodation mandate solely by negative
implication: because article X, section 29(c)(6) says that nothing in the
amendment "shall require any accommodation" of medical use in a place
of employment, the court reasoned that the amendment therefore
requires employers to accommodate off-duty use. But the expressio
unius canon is not a spell for transmogrifying a no-duty clause into a
yes-duty command. At most, it is a cautious inference that applies only
in narrow settings—where the thing specified can reasonably be treated
as an exhaustive expression of "all that shares in the grant or the
prohibition involved." See Alachua County v. Watson, 333 So. 3d 162,
172 (Fla. 2022) (emphasis omitted) (quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 107 (2012)); see
also Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013) ("The force of
any negative implication . . . depends on context."); Barnhart v. Peabody
Coal Co., 537 U.S. 149, 168 (2003) (explaining that the expressio unius
canon "has force only when the items expressed are members of an
'associated group or series' " (quoting United States v. Vonn, 535 U.S. 55,
65 (2002))). And the caution is heightened—not relaxed—when the court
is asked to find implied commands in constitutional text. See Taylor v.
16
Dorsey, 19 So. 2d 876, 881 (Fla. 1944) (explaining expressio unius
"should be sparingly used in construing the constitution").
Here, the relevant sentence is not an "associated group or series" of
accommodation rules inviting an inference about what employers must
permit when employees are off-site. It is a limitation clause—written in
the negative—that removes any affirmative mandate to accommodate
medical use. Courts have rejected precisely the move the trial court here
made: bootstrapping a positive obligation from a "nothing . . . shall be
construed as requiring" disclaimer. See Heckler v. Chaney, 470 U.S.
821, 837 (1985) ("We think that this section simply does not give rise to
the negative implication which respondents seek to draw from it."). And
our supreme court has recently cautioned against using expressio unius
as an "editorial device" to manufacture rights or duties that the text does
not actually grant. See Fla. Atl. Univ. Bd. of Trs. v. Harbor Branch
Oceanographic Inst. Found., Inc., 423 So. 3d 842, 851 (Fla. 2025).
Applied here, the trial court's negative implication reasoning does not
interpret the amendment; it rewrites it.
Florida's implementing statute underscores the same point.
Section 381.986 expressly preserves employer authority: it "does not
limit the ability of an employer to establish, continue, or enforce a drug-
free workplace program or policy." § 381.986(15)(a). Subsection (15)(b)
then adds two distinct no-duty rules, phrased in the disjunctive: the
statute "does not require an employer to accommodate the medical use of
marijuana in any workplace or any employee working while under the
influence of marijuana." § 381.986(15)(b) (emphasis added).
The first clause speaks to accommodation of the "medical use of
marijuana" as a workplace matter—i.e., as a term or condition of
employment within the employer's workplace regime. The legislature did
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not say "on-site"; it chose the broader formulation "in any workplace,"
which naturally aligns with subsection (15)(a)'s preservation of an
employer's ability to "establish, continue, or enforce" a drug-free
workplace "program or policy." Read in that context, "in any workplace"
is not fairly understood as a mere geographic limitation; it refers to the
employer's workplace rules governing fitness for duty—including testing,
return-to-duty requirements, and discipline—and makes clear that the
statute does not compel employers to create a medical marijuana
exception to those rules.
The second clause of subsection (15)(b) does separate work. It does
not address the employer's right to refuse accommodation of medical
marijuana use generally; it provides that an employer is not required to
accommodate "any employee working while under the influence of
marijuana." § 381.986(15)(b). That phrasing captures performance of
work wherever it occurs—including on-site work, off-site responses,
travel between locations, operation of vehicles, and other duties that may
occur outside a fixed "workplace" in the geographic sense.
Treating either clause as merely a restatement of the other would
collapse materially different language and would, in practical effect,
delete one of the statute's two disjunctive limitations. Florida courts do
not construe statutes by reading one clause out of existence simply
because another clause addresses a related subject. Instead, we apply
the whole text and antisurplusage principles: we "give effect to 'every
word, phrase, sentence, and part of the statute if possible,' " and we
avoid interpretations that render a coequal provision "meaningless." See
Edwards v. Thomas, 229 So. 3d 277, 284–85 (Fla. 2017) (quoting
Quarantello v. Leroy, 977 So. 2d 648, 651–52 (Fla. 5th DCA 2008)); Am.
Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360, 365–68
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(Fla. 2005). That admonition has real bite here because the two clauses
use different objects and do different work: the first speaks to the
"medical use of marijuana" as a workplace accommodation issue, while
the second separately addresses accommodating "any employee working
while under the influence." See § 381.986(15)(b). Reading either clause
as surplus is not harmonization; it is judicial excision.
The better reading—and the one consistent with the statute's plain
text and structure—is that the legislature preserved an employer's
discretion to refuse accommodation of medical marijuana at all in the
workplace and separately preserved an employer's discretion to refuse
accommodation for an employee working under the influence. See
§ 381.986(15)(b).
Even if we assume that the first clause of section 381.986(15)(b)—
"does not require an employer to accommodate the medical use of
marijuana in any workplace"—were limited to on-site workplace
accommodation, that assumption would not displace the bargained-for,
more restrictive substance abuse rules that were adopted for this safety-
sensitive bargaining unit. Here, the CBA expressly governs the "terms
and conditions of employment" for firefighters like Mr. Giambrone and
prohibits drug use "at any time while employed" by Fire Rescue.7
Employers must implement such ratified CBA terms even when
they are more specific—and therefore more restrictive—than other
generally applicable employment rules. See, e.g., Hillsborough Cnty. Gov't
Emps. Ass'n v. Hillsborough Cnty. Aviation Auth., 522 So. 2d 358, 363
(Fla. 1988) (holding that "a public employer must implement a ratified
7 In the instant case, Mr. Giambrone testified that, during the time
he was actively employed, he smoked "a half a joint to a joint two to three
times a day."
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collective bargaining agreement with respect to wages, hours, or terms
and conditions of employment" and explaining that "[t]he art of collective
bargaining is one of give and take" and that employees may "forfeit some
benefit to which they were otherwise entitled in order to gain" others).
And once the parties have made that bargain, courts do not recalibrate it
based on their own view of what would be a better policy outcome. When
the contract language is clear, "the contracting parties are bound by
those terms, and a court is powerless to rewrite the contract to make it
more reasonable or advantageous for one of the contracting parties." See
Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1003
(Fla. 2d DCA 1995) (citing Med. Ctr. Health Plan v. Brick, 572 So. 2d 548,
551 (Fla. 1st DCA 1990)).
Nor does article X, section 29 transform a state law protection
against Florida criminal or civil sanctions into a constitutional
entitlement to hold a particular public safety job on judicially rewritten
terms. The County relies heavily on the First District's decision in Velez
Ortiz v. Department of Corrections, 368 So. 3d 33 (Fla. 1st DCA 2023),
which is instructive on this point. There, the court emphasized that it
was not deciding "the extent of a qualified patient's right to use medicinal
marijuana," but rather "whether Mr. Velez Ortiz has a right to use
medicinal marijuana while being employed as a correctional officer." Id.
at 34 n.2. The court held the termination lawful because continued
marijuana use was incompatible with the statutory conditions of
correctional officer certification, including the obligation to maintain
"good moral character." Id. at 34–35.8 While the certification
8 Florida imposes a similar character-based qualification on
firefighters. See § 633.412(4), Fla. Stat. (2019) (requiring firefighter
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requirements and operational demands of correctional officers differ from
those of fire rescue employees, the underlying principle carries force
here: Florida's medical marijuana provisions do not constitutionalize
continued public employment, and they do not prohibit an employer—or
a collectively bargained-for agreement—from imposing and enforcing
stringent fitness-for-duty standards in a safety-sensitive setting.
E. The Trial Court's Interpretative Chain Breaks at Every
Link
Stepping back, the trial court's order depends on an interpretive
chain that breaks at every link. It first expands the CBA's definition of
"Prescription or Nonprescription Medication" beyond the limiting
language the parties chose—treating a registry-based authorization for
restricted patient dispensing as the equivalent of a "prescription" under
chapter 893 or as an over-the-counter medication "authorized . . . for
general distribution and use without a prescription." It then narrows the
operative prohibitions by treating the substance abuse restrictions as
essentially applicable in the physical workplace only, notwithstanding
the additional "at any time while employed" prohibition and the parties'
bargained-for definition of "Impaired" a