DEPARTMENT OF HEALTH STATE OF FLORIDA PETITIONER S OPPOSITION TO DFMMJ INVESTMENTS LLC S MOTION TO INTERVENE IN DECLARATORY STATEMENT PROCEEDING

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1 DEPARTMENT OF HEALTH STATE OF FLORIDA GEORGE HACKNEY, INC. d/b/a TRULIEVE, Petitioner, vs. Case No. FLORIDA DEPARTMENT OF HEALTH, Respondent. / PETITIONER S OPPOSITION TO DFMMJ INVESTMENTS LLC S MOTION TO INTERVENE IN DECLARATORY STATEMENT PROCEEDING Petitioner, George Hackney, Inc., d/b/a Trulieve, opposes the motion to intervene by DFMMJ Investments, LLC, and says: 1. Trulieve s petition for a declaratory statement raises a simple issue, which affects only Trulieve: whether DOH recognizes Trulieve s license right to sell and dispense (a) ground marijuana flower vapable products in ceramic vaporizer cups and (b) Volcano Vaporizers together with a base and sleeve that fits the vaporizer cup into the vaporizer, to qualified patients, by virtue of the default license approval provision in Fla. Stat (1). 2. This issue does not affect any right or obligation of DFMMJ. 3. DFMMJ offers only a nebulous and unsupported conclusory argument that this proceeding will affect its substantial interest, citing Agrico Chem. Co. v. Dep t of Env. Reg., 406 So. 2d 478 (Fla. 2d DCA 1981). But Agrico is squarely against DFMMJ s position. 4. Under Agrico, a proposed intervener must show that (1) it would suffer injury in fact of sufficient immediacy to entitle [it] to a section hearing (concerning the degree of injury); and (2) that its substantial injury is of a type and nature which the proceeding is designed 1

2 to protect (concerning the nature of the injury). Id. at Applying this two pronged test, upon thorough analysis, the Court held it was error to grant business competitors standing to oppose a permit based on their economic injury. Id. at For the same reason, DFMMJ s motion fails to meet either prong of the Agrico test for standing. This declaratory statement will not affect DFMMJ s product lines. DFMMJ is free to produce and sell any lawful medical marijuana products to qualified patients. DFMMJ alleges no specific injury in fact if Trulieve s approval is granted, and the nature of any hypothetical injury to DFMMJ is not one from which DFMMJ enjoys legal protection. 6. In proceedings to obtain a license, third parties do not have standing to intervene based solely upon competing economic interests, unless the licensing statute itself requires that such interest be considered (as in comparative, mutually exclusive, applications), or expressly confers standing. Agrico; see generally ASI, Inc. v. Florida Public Service Comm'n, 334 So. 2d 594, 596 (Fla. 1976) ( ASI has no legally recognized interest in being free from competition. On the contrary, the statutory scheme is one of free and unfettered competition ); Skaggs- Albertson's Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So. 2d 113, 116 (Fla. 2d DCA 1976) (the fact that Michels might lose business because of competition from permitting Skaggs' drugstore cannot provide standing to object to permit); Office of Ins. Reg. v. Secure Enterprises LLC, 124 So. 3d 332 (Fla. 1st DCA 2013) (garage door seller that lost business due to OIR rule denying insurance credit for doors had no standing to object to rule). 7. No standing right is cited or present here. On the contrary, administrative licensing cases under the medical marijuana law reject intervention by licensed competitors. See Dewar Nursery v. Dep t of Health, No (Fla. DOAH Jan. 9, 2016) (McArthur, ALJ; order denying Costa s and Hackney s motions to intervene in case seeking DO license); Tornello 2

3 Landscape Corp. v. Dep t of Health, No (Fla. DOAH Feb. 1, 2016) (Van Laningham, ALJ; order denying Costa s and Hackney s motions to intervene in case seeking DO license), subsequent order sub. nom. In Re: Licensure of the Low-THC Cannabis Dispensing Organization for the Southwest Region, Nos through (Fla. DOAH May 9, 2016) (order dismissing Alpha Foliage from same case for lack of standing). 8. Trulieve is not asking DOH to limit DFMMJ s or anyone else s products. It is speculative that DOH would artificially limit competition in any case. Indeed, DFMMJ seems to assume that if DOH approves Trulieve s products as requested, it will allow other MMTCs to sell similar products. DFMMJ (a successor to one of the five original licensed DO s, Chestnut Hill Tree Farm), may not have focused on developing and marketing vaping products, but it assumed that risk in timing its business investment. DFMMJ s business strategy is not a legal injury or a reason to delay Trulieve from selling products to qualified patients. 9. DFMMJ s motion is fatally defective in other ways as well. It fails to state its position on the issue presented in the Petition, except to make a frivolous objection that DOH cannot grant a default license. Motion p. 3 fn. 1. Section (1) not only authorizes, but requires, agencies to grant default licenses upon expiration of the allowed time. See Tuten v. State Dep t of Env. Prot., 819 So 2d 187, susbs, op., 906 So. 2d 1202 (Fla. 4th DCA 2005); Chilito v. Dep t of Health, No (Fla. DOAH 2015) (recommended order that DOH is required to approve default license, adopted by DOH in Final Order April 29, 2016). 10. Also, DFMMJ seeks to raise a new issue whether the statutory definition of medical use prohibits whole flower marijuana vaping products. The plain language of the statutory definition, Fla. Stat (1)(j), allows such products. DOH has no rule to the contrary, and cannot refuse a default license. DFMMJ cannot properly try to inject this new 3

4 issue. 1 A prospective intervener must take the case as it finds it, and not try to inject new issues. See, e.g., Broward Children's Ctr., Inc. v. Plantation Nursing & Rehab. Ctr., 66 So. 3d 1063, 1064 (Fla. 1st DCA 2011) (administrative appeal denying intervention, noting intervener s rights are subordinate to rights of original parties and intervener cannot inject new issues); Nat'l Wildlife Fed'n Inc. v. Glisson, 531 So. 2d 996, 998 (Fla. 1st DCA 1988) (intervener must accept the record and pleadings as it finds them and cannot raise new issues). 11. DFMMJ s real purpose in moving to intervene appears to be just to slow down the approval process, as a way to delay Trulieve from marketing these products to qualified patients who need them, and give DFMMJ more time to catch up in developing competing products. 12. Trulieve s right to sell the described products by default approval of its application vested after 90 days, on October 16, If allowed to intervene, DFMMJ would thwart the purpose for the default approval statute, (1), which is to prevent delay on applications, by deeming them approved if not denied within 90 days. 13. DFMMJ s delay tactic will also deprive qualified patients of products they need, for no lawful reason. This attempt to suppress innovation and hinder competition is not only contrary to Trulieve s license rights, but is contrary to DOH s constitutional and legislative duty to ensure availability of medical marijuana products to qualified patients through licensed MMTCs. See Fla. Const. Art. X 29(d) and Fla. Stat (8)(a). 14. In sum, DFMMJ s motion to intervene, in order to delay the entitled approval and dispensing of these products, has no factual or legal basis, and is unlawful and unfair. 1 DFMMJ fails to even state its position on this new issue. A call to DFMMJ s counsel pointing out this omission failed to produce clarification, suggesting DFMMJ s real interest is in delay. 4

5 WHEREFORE, DFMMJ s motion to intervene should be denied, and DOH should move this matter forward to prompt resolution. Respectfully submitted this 6th day of December, s/ David K. Miller David K. Miller, P.A. Florida Bar No Broad and Cassel LLP 215 South Monroe Street, Suite 400 (32301) P.O. Drawer Tallahassee, FL Tel ; Fax dmiller@broadandcassel.com mubieta@broadandcassel.com Attorneys for Trulieve CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Opposition to DFMMJ s Motion to Intervene in Declaratory Statement Proceeding has been hand-delivered to Shannon Revels, Agency Clerk, Office of the General Counsel, Florida Department of Health, 2585 Merchants Row Blvd., Suite 110, Tallahassee, FL 32399; and a true and correct copy has been served by on the parties listed below, this 6th day of December, Nichole Geary General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL nichole.geary@flhealth.gov Amanda G. Bush Senior Attorney Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL amanda.bush@flhealth.gov John M. Lockwood Thomas J. Morton Devon Nunneley The Lockwood Law Firm 106 E. College Avenue, Suite 810 Tallahassee, FL john@lockwoodlawfirm.com tj@lockwoodlawfirm.com devon@lockwoodlawfirm.com Attorneys for DFMMJ Investments, LLC s/ David K. Miller Attorney 5