Triangle Capital Files Amicus Brief in Fla. Marijuana Business License Case

On Sept. 10, Triangle Capital, Inc. filed a second amicus brief in support of respondents Florigrown, LLC and Voice of Freedom, Inc. in their case challenging a portion of Florida’s medical marijuana statute, Florida Statutes Chapter 381.986(8)(a). The suit argues that the regulation is an unconstitutional “special law” that privileges a handful of select private entities. The defendant, the Florida Department of Health (the Department), has been accused of improperly denying and delaying the award of medical marijuana treatment center (MMTC) business licenses.

The case began when plaintiff Florigrown sought a temporary injunction against the Department in 2017. It argued that a legislative amendment defining an MMTC as “any entity that holds an active, unrestricted license to cultivate, process, transport, and dispense…medical marijuana,” created a requirement that MMTCs be vertically integrated via the inclusion of “and,” which was previously “or.” This definition in combination with a limit on the number of available licenses restricts competition by creating a cartel-driven market with inflated medical marijuana product prices, Florigrown argued.

The medical marijuana company asked the trial court to require the Department to approve Florigrown and other MMTC applicants’ business licenses. The court eventually capitulated and granted Florigrown’s motion. On appeal, the state’s First District Court of Appeal affirmed the temporary injunction with certain caveats. The case is now before the state’s high court, which requested a second round of briefing on the question before it.

According to the amicus brief filed last week, which is currently pending leave of court approval, Triangle Capital is a Florida corporation that has “invested significant financial resources toward their effort to enter the medical marijuana industry in Florida in reliance on the passage and wording of the medical marijuana constitutional amendment.” The aforementioned voter-enacted 2016 constitutional amendment legalized medical marijuana.

However, the current licensing scheme requiring that MMTCs be vertically integrated disserves legitimate businesses who want to enter the Florida medical marijuana market, the brief contends. Triangle Capital argues that “to date every medical marijuana treatment center license that has been awarded by the Florida Department of Health has been a grant of a special privilege to a select few private corporations in direct contravention of the Florida’s Constitution.” It echoes Florigrown’s argument that creating competition in Florida’s medical marijuana market by granting MMTC licenses will give patients greater product options, increase product supply, and ultimately lower prices.

The brief avers that, “(i)n the absence of a law to guide the way forward(,) the Court is left with the task of fashioning an equitable remedy to resolve this matter.” Thus, Triangle Capital requests that the court establish deadlines by which the Department must grant pending MMTC applications and offers the court several suggestions for reasonable timeframes.

Triangle Capital is represented by Jeff Kottkamp, P.A. The Florida Department of Health is represented by counsel from the Executive Office of the Governor. Florigrown is represented by Akerman LLP.