Marsy Post Leader

These days, it’s hard to get 71.3 percent of people to agree that the sky is blue, much less find common ground on a political topic. And yet, that is how enthusiastic the support from Florida voters was last year for Amendment 2, which expanded access to medical marijuana.

The new provision in the Florida Constitution, along with a statute passed this year to implement the changes, included a strict deadline of October 3, 2017 for the Florida Department of Health (“DOH”) to issue ten new licenses for medical marijuana treatment centers (“MMTCs”). After months of delays, DOH missed the October 3 deadline.

Now, two plaintiffs — a nursery business owned by a family of veterans seeking to be licensed as an MMTC, and a Pensacola resident whose severe epilepsy can be effectively controlled with medical marijuana — are suing DOH to demand that the government comply with this law that Floridians so overwhelmingly support. In an exclusive for The Capitolist, we are sharing with you the story behind the lawsuit being filed today in Tallahassee in the Second Judicial Circuit Court.

“It’s the only thing that has worked for me — it’s restored my entire quality of life.”

Violent muscle spasms that overtake his entire body. Concussions, bruises, and sometimes worse injuries from sudden falls. Loss of consciousness followed by temporary memory deficits. Excruciating whole-body pain and fatigue, leaving him bedridden for days.

Those are some of the devastating results that Michael Bowen, a 47-year-old Pensacola resident, can experience when has an epileptic seizure. “A seizure is like running a decathlon every night,” he explains. “It wears out every muscle in your body.”

And with every single seizure, he faces the risk of cardiac arrest, stroke, brain damage, and even death.

First diagnosed at age 13, Bowen spent decades taking high doses of barbiturates to control his seizures. Barbiturates are a central nervous system depressant, and the side effects can be debilitating: toxic effects on the liver and lungs and degenerative effects on the nervous system, wearing down the lining of nerve cells after years of use, leading to painful neuropathy.

“They’re harrowing drugs,” said Bowen, describing how the barbiturates would put him “in a zombie like state.”

And yet, the side effects from Bowen’s prescription medicines were still better than the risks caused by his seizures — until the drugs stopped working.

Photo of Michael Bowen, showing the aftereffects of his seizures. Photo provided by Stephani Scruggs Bowen.

Bowen began having uncontrollable seizures, often two or three a night. One sent him to the hospital in cardiac arrest. His wife, Stephani Scruggs Bowen, was searching for another treatment option when she came across research showing medical marijuana had been effective in clinical trials involving veterans with post-traumatic stress disorder (PTSD), and then found research suggesting it could be an effective treatment for epilepsy as well. The Bowens began researching medical marijuana in earnest and traveled to states where it was legal, hoping to find a solution.

After some trial and error, with the right medical marijuana treatment, Bowen’s seizures became milder and less frequent, going from two or three a night, to one or two a week, to essentially being controlled. Plus, the medical marijuana lacked the severe side effects Bowen had endured for so long from the barbiturates.

In addition to alleviating the seizures, medical marijuana has been shown to work to reverse the neurological damage caused by years of heavy barbiturate use. Evidence for this is shown in the federal government’s own patent application for the use of cannabinoids as antioxidants and neuroprotectants.

But Bowen still faced a major obstacle: medical marijuana had severely limited legality in Florida. Even after the passage of Amendment 2 and repeated polls showing strong support from voters, Florida’s Republican-controlled legislature was dragging its feet passing laws to implement the state’s medical marijuana system.

He and his wife traveled to Tallahassee to tell their story to the Senate Health Committee in the hope of persuading legislators to back broader legalization for medical marijuana. They had intended only to speak, but ended up unintentionally providing a demonstration of exactly how critical medical marijuana treatment was for Bowen.

With medical marijuana illegal to anyone who did not possess a license (which DOH was not yet distributing), Bowen ended up having a grand mal seizure on the Senate floor while his wife was addressing the committee. He ended up biting his tongue so severely he couldn’t talk for several days, in addition to lots of bruises. Still, no one who witnessed the Bowens’ testimony that day could doubt the seriousness of his medical condition after that.

“We already lost one brother to this and we are fighting to make sure that no one else does,”

The Garrison family.

While the Bowens were on their quest for an effective epilepsy treatment, another family was fighting the other half of the battle: the limited number of operational MMTCs in the state was sharply limiting patients’ access to these lifesaving treatments.

The proprietors of Bill’s Nursery, the Garrison family, have been selling plants and trees in South Florida since the 1960s. Current family patriarch Stephen Garrison, Sr. is a combat veteran of the Vietnam War and a former Chief of Police in Virginia Gardens, Florida. All three of Stephen’s sons — Stephen “Rusty” Garrison, Jr., Donovan Garrison, and Matthew Garrison — also served in our armed forces.

Matthew Garrison, a decorated Army combat veteran, was left disabled after his service. Sadly, Matthew lost his life on January 11, 2017. His family believes that if Matthew had access to medical marijuana, he may still be alive today. The struggles he and other combat veterans experience inspired his family to seek to convert their nursery business to provide medical marijuana products.

Matthew Garrison.

“It’s personal for us – it hits home,” said Donovan Garrison. “We cared about this issue before, but after January, it’s so gut wrenching because we want to help but are being held back.”

“Bill’s Nursery already lost one brother to this and we are fighting to make sure that no one else does,” added Rusty Garrison.

Stephen Garrison said that they have devoted the majority of their company’s resources over the past few years to do everything they can to convert into a successful MMTC providing the highest level of quality product. Donovan Garrison have travelled to other states like California, Colorado, Oregon, and Washington, where marijuana has been legalized to learn directly from the industry experts who are operating there. The Bill’s Nursery team has poured additional funds into supporting medical marijuana research efforts and correspond regularly agronomists, geneticists, as well as scientists in Israel, where much of the current medical marijuana research is being conducted.

At this point, the Garrisons tell me, they have the nursery expertise, the specific marijuana-related expertise, the business management skills, and — crucially important in this economy — sufficient funding secured to allow them to fully execute their plan.

All that’s missing is the license from DOH.

“I was thrilled when the law passed — but they way they’ve implemented it is a joke.”

As mentioned above, the provisions implementing legal medical marijuana in Florida — Article 10, § 29 of the Florida Constitution and Fla. Stat. § 381.986 — had a strict October 3, 2017 for DOH to issue ten new MMTC licenses.

So far, only six licensees have been designated, but none of those six have been authorized by DOH to commence operations and begin providing medical marijuana directly to patients. Seven licensed MMTCs were approved under the earlier 2014 law, but are not operating at a level adequate to serve a state as large in population and geography as Florida.

In addition to epileptics like Bowen, Florida’s medical marijuana laws expressly include medical conditions like cancer, glaucoma, HIV and AIDS, PTSD, amyotrophic lateral sclerosis (commonly known as Lou Gehrig’s disease), Crohn’s disease, Parkinson’s disease, multiple sclerosis, chronic pain, as well as other severe or terminal medical conditions. Different marijuana strains will have varying effectiveness depending on the individual patient and what ailment they are seeking to treat. 

For the millions of Florida patients who are desperate for relief, the overall statewide scarcity of legally approved MMTCs is exacerbated by the need to have the specific medical marijuana strain and formula best suited for them. Not all strains are carried by all MMTCs, so the limited number currently operating further restricts patients’ access.

And just like with many other times when government artificially limits supply, the extremely limited capacity of Florida’s existing MMTCs has made the price skyrocket — an average of three to five thousand dollars, compared to a street value of a few hundred. Since medical marijuana is not covered by health insurance, that’s a heavy out-of-pocket burden for patients.

The law also imposes a strict deadline on DOH to issue patent and caregiver identification cards, which allow the possession of marijuana products without fear of criminal penalties. Similar to the MMTCs, Floridians have voiced frustration over delays and red tape holding up the issuance of these cards.

“I was thrilled when the law passed,” said Bowen, “but the way they’ve implemented it is a joke. The Florida Department of Health has restricted access by their inexcusable foot-dragging so that the law’s intended safe, reliable access to these lifesaving treatments is not being met.”

Meanwhile, DOH has resorted to blaming their missed deadline on litigation filed against them, as Christian Bax, DOH’s Director of the Office of Medical Marijuana Use, testified in front of the Senate Health Committee on October 24, 2017.

Senate Health Committee Chair Dana Young was not buying Bax’s excuse. “You get sued all the time,” Young pointed out. “You have a duty under our state laws to issue those licenses regardless of whether some plaintiff files a lawsuit.”

“We’re not stoners or hippies.”

If you had asked them several years ago, neither the Bowens nor the Garrisons would have expected that they would be advocates for medical marijuana.

Family patriarch Steve Garrison spent years as a police officer, helping lock up drug users and dealers. The family’s strong tradition of military service has also planted deep roots of respect for law and order.

The Bowens are a husband and wife team of staunch conservatives, who have been active for years in Republican politics and even worked on campaigns together. “To say we’re a part of the religious right would be an understatement,” Stephani told the Sun Sentinel. “[We’re] not stoners or hippies.”

As she astutely observed, “the fact is 71 percent of people voted for this amendment — those weren’t all Democrats.”

The brutal experience of watching a loved one suffer has led both of these conservative families to embrace the hope provided by medical marijuana treatments. The trick now is convincing the Legislature to continue to support medical marijuana, and DOH to implement the laws as it is required to do so.

The new language that Amendment 2 added to the Florida Constitution included a provision stating that if DOH failed to meet the deadlines, “any Florida citizen shall have standing to seek judicial relief to compel compliance with the Department’s constitutional duties.”

And that’s just what the Garrisons and Michael Bowen have done, retaining the Boies Schiller Flexner law firm to file suit against DOH, Bax, and Florida Surgeon General Celeste Phillp. The complaint, which can be viewed here, seeks a writ of mandamus, mandatory injunctive relief, and a declaratory judgment ordering DOH to comply with Fla. Stat. § 381.986 and Article X, § 29 of the Florida Constitution, by issuing the additional four MMTC licenses required by law.

“We’re just trying to get medicine to the millions of folks who need it” said Donovan Garrision.

UPDATE: Mara Gambineri, DOH Communications Director, emailed The Capitolist Tuesday afternoon with the following response to this story:

DOH has not yet been served in this lawsuit, however, the department is working diligently every day to implement the many requirements in Amendment 2 and those set by the Florida Legislature in Senate Bill 8A and are dedicated to ensuring patients have safe access to low-THC cannabis and medical marijuana. We remain committed to moving this process forward, and will do so in an expedient and thoughtful manner.

To date, the department has licensed 13 Medical Marijuana Treatment Centers; and there are currently 22 storefront locations statewide as well as delivery as an option for patients.

[Disclosure: Bill’s Nursery, Inc. is a consulting client of this writer.]

Follow Sarah Rumpf on Twitter: @rumpfshaker