By Fred Gardner / O’Shaughnessy’s News Service December 4, 2014
The “Right to Medical Marijuana Initiative” —better known as Amendment 2— seemed very likely to pass as of July 2014, when 88 percent of prospective voters supported “allowing adults in Florida to legally use marijuana for medical purposes if their doctor prescribes it,” according to the respected Quinnipiac University poll.
Amendment 2 was intended to legalize marijuana use by patients coping with any “conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks.” Also, to legalize “medical marijuana treatment centers,” otherwise known as dispensaries.
How did it happen that a medical marijuana ballot initiative supported by almost 90% of Florida voters in the summer was defeated in the fall? Let us count the ways.
1. The “supermajority” requirement
Because the Florida legislature has voted down medical marijuana bills in recent years, reformers took their case directly to the voters in 2014 with a ballot initiative.
And because the Florida legislature can weaken or even throw out a law passed by the voters, the reformers framed their intiative as an Amendment to the state constitution (which legislators beholden to lobbyists wouldn’t be able to mess with).
However, an Amendment requires not a “simple” majority of voters (as in demoracy) but a 60% “super”majority (as in maintain the status quo).
Florida’s medical marijuana initiative garnered 58% of the vote on Election Day. Meaning it lost.
Until 2006 an Amendment to the Florida constitution required only a “simple” majority. Then, as explained by Alan Farago on Counterpunch.org, “the GOP legislature and its patrons, Big Sugar, the Florida Homebuilders, the Florida Chamber of Commerce and Associated Industries of Florida, began demonizing a ballot initiative called ‘Hometown Democracy.’”
Hometown Democracy would have allowed citizens to vote on changes to community and municipal master development plans (which affect the environment and everybody’s quality of life). To defeat it (and an initiative raising the minimum wage), the Florida legislature placed on the ballot an initiative establishing the 60% requirement on constitutional amendments. The ballot initiative to require a supermajority required a simple majority.
The well-funded campaign against Hometown Democracy, writes Farago, “was managed by a Jeb Bush lieutenant, John Thrasher — a former speaker of the Florida House— who was recently appointed president of a major Florida university despite lacking any academic qualifications for the role.”
Supermajority = pseudodemocracy.
2. Charlie Crist, Democrat
Amendment 2 was promoted by a prominent Orlando personal-injury lawyer named John Morgan. He was the face of the campaign. In talks and TV ads Morgan said that his father’s final months had been made bearable by marijuana, and that his brother Tim, a quadriplegic, needs and uses marijuana and should be able to do so legally. John Morgan gave $4 million to a PAC called “United for Care” to push Amendment 2. Much of it went towards getting the measure on the ballot.
The Democrats’ candidate for governor, Charlie Crist, a lawyer employed by Morgan’s firm, emphasized his support for Amendment 2. Crist had been elected governor of Florida as a Republican in 2007. In 2010, aspiring to run for the Senate, he lost to Marco Rubio in the primary and lost again in the general election after filing to run as an Independent.
In 2012 Crist endorsed Barack Obama. When he ran for governor as a Democrat in 2014 Crist’s detractors called him “a chameleon.” His defenders said, “The Republicans have been taken over by the far right, one has to change with the times.”
The link between the Democratic candidate for governor and Amendment 2 undoubtedly alienated many Republicans who might otherwise have voted ‘yes.’
3. Square Strategists
Even last spring, when Amendment 2 looked like a sure winner, savvy Irvin Rosenfeld had misgivings. He had been involved in many medical marijuana campaigns and seen big early leads in the polls go way down when the attack ads commenced.
The Amendment 2 campaign wanted little to do with Rosenfeld’s friend Robert Platshorn, a 70-something pitchman whose “Silver Tour” had been carrying the pro-marijuana message to senior citizens across the state and beyond. Platshorn was unwelcome because he had done time in federal prison for smuggling marijuana into the U.S. in the 1970s. And though he had paid his debt to society (29 years!), and though most people hearing his story find him likable and admirable, the Amendment 2 strategists “did not want Bobby Platshorn associated with the campaign,” says Rosenfeld.
The Amendment 2 strategists “wouldn’t even use the image of a cannabis leaf in any of their materials.”
Nor did the campaign make full use of Rosenfeld himself. A stockbroker based in Fort Lauderdale, Rosenfeld, 61, is one of the best known and most persuasive proponents of medical cannabis. “I don’t care that the campaign didn’t use me that much,” he says. “I care that they didn’t use my story enough.”
In 1982, with guidance from Alice O’Leary and Robert Randall (the first “federal patient” to get cannabis from the government), Rosenfeld had convinced the Food and Drug Administration that only marijuana countered the tumorous growths on his bones and enabled him to lead a normal life. Rosenfeld in turn helped other Floridians —glaucoma patient Elvy Mussika, and AIDS patients Barbara and Kenny Jenks— to enter the FDA’s so-called “Compassionate Investigational New Drug” program.
Rosenfeld requested in vain that the campaign focus on the fact that he and other Floridians had been using marijuana provided by the federal government, safely and beneficially, for many years.
The campaign strategists, according to a reliable source, thought “it was too difficult to explain Irv’s story in a 30-second commercial. Also, the marijuana Irv gets is in the form of joints, and the campaign didn’t want to show anybody smoking. They wouldn’t even use the image of a cannabis leaf in any of their materials.”
Your correspondent is confident that Rosenfeld can tell his story and make the relevant points in 30 seconds.
4. The “medical necessity” alternative
Kenny Jenks was a hemophiliac who had contracted the HIV virus from a blood transfusion in the early 1980s. His wife Barbara became ill, too. It was before the advent of protease inhibitors, and the Jenkses were fading fast. When they learned that marijuana restored their appetites, Kenny began growing. He was arrested for cultivation in 1990 and his defense in court was “medical necessity.”
It was to stave off AIDS wasting syndrome and death, he claimed, that he committed the crimes of marijuana cultivation and possession. Jenks was acquitted and a Florida statute was enacted acknowledging a citizen’s right to a “medical necessity” defense.
(Barbara Jenks died in 1992 at age 25, Kenny the following year at age 31. He was the first AIDS patient to get cannabis from the government, and the last. With hundreds of AIDS patients applying to the FDA, the George H.W. Bush Administration closed the “Compassionate Use” program. Rosenfeld and 12 others were “grandfathered in” to avoid the public-relations disaster that would ensue if the government stopped providing the herb to patients likely to die without it.)
Florida’s statute recognizing “medical necessity” would have an impact on the 2014 election after it was rediscovered by attorney Ian Christiansen of Health Law Services, who made it the basis for a campaign to recruit clients. “Medical marijuana is already legal in Florida,” Christian proclaimed to the media and on the law firm’s website.
“A patient with a debilitating medical condition has a right to use cannabis just like any other prescription medication, as long as a physician deems cannabis ‘medically necessary’ and orders its use, pursuant to Fla. Stat. 381.026(d)(3), 456.41, 893.13 (6) (a)...
“Florida Courts have held patients may cultivate their own medicine… Our firm specializes in understanding the intricacies of the application and law of this medicine, and therefore we provide legal guidance to patients, physicians, hospitals, authorized agents, law enforcement, Department of Children and Families, the Florida Department of Health and more…
“Our firm assists patients in establishing this medical necessity, then work closely with law enforcement to ensure the patients rights and compliance with all applicable law.” Sic.
The prospect of immediate access to legal cannabis drew many desperate people to sign up with Health Law Services. Among them was Moriah Barnhart, 30, mother of a little girl named Dahlia who was afflicted with brain cancer. When John Morgan gave a talk in Jacksonville, Barnhart said she would vote ‘no’ because she intended to grow cannabis for her daughter based on “medical necessity.” Morgan, grandstanding, offered to pay for her daughter’s medicine for the rest of her life. Barnhart said thanks but no thanks —her goal was a political solution for all, not a private one for her kid.
In a debate with Morgan two weeks before the election, Florida Supreme Court Justice Kenneth Bell said that a doctor could “already prescribe marijuana, and since statute 893.13(6)(a) built on the medical necessity doctrine, a patient can grow it themselves, and under this amendment that will go away.”
The Health Law Services website gleefully posted video of Bell’s pronouncement with the comment, “No on 2 is Yes on Medical Marijuana!”
5. The “low-THC” bill
In February 2014 a bill was introduced in the Florida house of representatives to legalize “low-THC cannabis” —defined as plants whose flowers don’t contain more than 0.3 percent THC. It was dubbed “the Charlotte’s Web bill” by the media. Paige Figi and Joel Stanley had input in drafting it and testified in support of it.
The prime movers had been Holley and Peyton Moseley of Gulf Breeze, parents of a daughter named Rayann, 11, who has a severe form of epilepsy. (Holley Moseley had been a nurse on a ward where Rayann, then a baby, was receiving treatment prior to being sent to a foster home. The Moseleys adopted her.)
After seeing the Sanjay Gupta special on CNN in August 2013, the Moseleys contacted Realm of Caring in Colorado and were advised to push for legislation in their home state that would enable them to get access to Charlotte’s Web.
The Moseleys knew Matt Gaetz, a young state representative whose father, Don Gaetz, was president of the Florida senate. Matt Gaetz drafted HB 843 with input from Realm of Caring.
The parallel bill in the state senate, SB 1030, was introduced by Sen. Rob Bradley, who also was getting input from the parent of an epileptic child —Seth Hyman. At the ensuing subcomittee hearings, Hyman informed the legislators and the media that they should stop calling it “the Charlotte’s Web bill,” because there were other CBD-dominant plants from which effective cannabis extracts were being made. He also explained that THC in amounts greater than 0.3% was a crucial ingredient for many children getting benefit from cannabis extracts.
When the house bill was incorporated into SB 1030, the name was changed to “the Compassionate Medical Cannabis Act”and the limit of allowable THC was set at 0.8% Cancer and AIDS were added as qualifying conditions, and Level 2 background checks were required for dispensary proprietors and employees —excluding people like Robert Platshorn, whose felonies involved making marijuana available long before its medical benefits were acknowledged by the government. Premature abolitionists.
The Act passed the House (111 to 7) and the Senate (30-9). The all-important details of production and distribution were left to the Department of Health to devise.
In August the Department of Health issued a “Notice of Proposed Rule” to implement SB 1030. It would allow five nurseries, spread across the state, to grow and distribute low-THC cannabis. Cultivation, processing, and dispensing would have to be done on the same or contiguous property. In other words, the dispensaries would be nurseries, and vice versa.
The proprietors would be chosen by lottery from among applicants who had been in business for 30 consecutive years and were tending at least 400,000 plants. There were 43 such nurseries in the state, and no cost to apply. The lucky winners were supposed to pay a $150,000 application fee (retrospectively), post a $5 million performance bond (supposedly to cover the cost of destroying their crop if their license was revoked or not renewed), and provide “low-THC cannabis” extracts 150 days after being licensed.
SB 1030 also established a “research registry” listing all physician-approved patients. All purchases and health outcomes would be tracked.
Governor Rick Scott had stated emphatically that he would never allow any kind of medical marijuana bill to be enacted in the Sunshine State. But he was convinced by strategists that signing SB 1030 would make his opposition to Amendment 2 seem less inhumane. With a stroke of the pen, Scott transformed his image from arch foe of medical marijuana to pro-CBD centrist.
A cartoon by Andy Marlette of the Pensacola News Journal depicted Scott sitting at his desk with a document that says “Charlotte’s Web Act,” to which he has affixed his signature. A spider has woven “God bless you” on a huge web, and Scott is beaming with self-satisfaction.
“As a father and grandfather, you never want to see kids suffer,” Scott said (as if aunts and uncles just might). “Charlotte’s Web will ensure that children in Florida who suffer from seizures and other debilitating illnesses will have the medication needed to improve their quality of life.”
Scott reiterated his opposition to Amendment 2 with similar blither: “I’ve watched drug use; I’ve watched alcoholism. I’ve seen how it affects families; I can’t support that.” The reporters quoting him did not point out that Amendment 2 had nothing to do with alcohol, or that alcoholism declines when cannabis is available as an alternative to booze.
Rick Scott became a multimillionaire running Columbia/HCA, the nation’s largest for-profit hospital chain. According to polite Wikipedia, Scott “resigned as Chief Executive of Columbia/HCA in 1997 amid a controversy over the company’s business and Medicare billing practices; the company ultimately admitted to 14 felonies and agreed to pay the federal government over $600 million, which was the largest fraud settlement in US history. Scott was not implicated and no charges were raised against him personally.”
Irvin Rosenfeld is convinced that the passage of the so-called “low-THC” measure was the single biggest factor undermining support for Amendment 2. “It enabled the opposition to say ‘We already have a bill that will take care of the people who really need medical marijuna.’ That became one of their soundbites.”
During one TV debate, Rosenfeld recalls, “the sheriff of Pinellas County kept saying, ‘We don’t need Amendment 2, we have a CDB bill.’ He must have said it four or five times. ‘We have a CDB bill.’” Sic.
Sepulchral, sanctimonious Rick Scott may owe his re-election to that CDB bill, which legalizes production of low-THC cannabis oil and its sale at five retail outlets.
6. The Casino Magnate’s Millions
“The amount of money poured into the ‘No-on-2’ campaign from out of state by Sheldon Adelson was obscene,” says Pat M., a Gainesville caregiver. Adelson is a Vegas-based casino owner, a great friend of Israel and the Republican Party. He gave more than $5 million to the No-on-2 campaign.
Gainesville Pat says that a few days after the election the Miami Herald ran an exposé about Adelson. “Finally they explained who this guy really is. He gets behind Republican candidates for governor when Indian tribes’ casino licenses are up for renegotiation. Ours are next year.”
Most of the “No-on-2” ads were in the name of the Florida Sheriffs Association. Pat summarizes their messages: “‘Kids can walk into a doctor’s office and get a prescription and go get pot.’ ‘There will be pill mills on every corner.’
“They showed pictures of Venice Beach, [where some potdoc has an office and flyers are distributed by women on roller blades]. They showed a girl with a candy bar in her back pocket and a boy with his arm around her, and said ‘Marijuana will be the new date-rape drug.’”
Adelson also funded ads in which persons in white coats representing the Florida Medical Association said (as summarized by Pat) “There’s no evidence… We don’t want anything that’s not FDA-approved.”
Irv Rosenfeld thinks that the medical association’s opposition was another big factor in the outcome. “It was more than disappointing, it was appalling,” he says. “After all these years of marijuana use in all these states without any observable harm… their opposition was political, not medical.”
The No-on-2 campaign manager, Tre´ Evers, wrote a self-congratulatory analysis after the election that the Tampa Bay Tribune published. “Nearly every elected Sheriff in Florida took to the public forum to educate their constituents on the problems with Amendment 2,” Evers crowed. “Sheriff Grady Judd of Polk County in particular became one of the main spokespersons for the opposition. He seemed omnipresent at meetings, debates and press interviews across Florida. Sheriff Gualatieri of Pinellas County debated John Morgan on a statewide NBC telecast while Sheriff Don Eslinger of Seminole County held numerous press conferences in Tallahassee. Likewise, many other Sheriffs visited their local newspapers, spoke to churches and community groups, and elevated the discussion of this important issue.´
The ‘Yes-on-2’ ads seemed few and far between in late October as the Adelson-funded barrage hit the airwaves. “Their ads featured John Morgan talking about his father and his brother,” says Anneliese Clark, the politically active mother of a girl with Dravet syndrome who spent much of 2014 desperately seeking CBD. “The average Floridian can’t identify with a super-successful lawyer who they see on TV all the time advertising his law firm’s success at suing people. There were way more ads for his firm than for Amendment 2.”
In passing SB 1030, the legislature allocated $1 million to Florida universities to study CBD in the treatment of pediatric epilepsy; but they allocated zero to enable the Department of Health to set up the program to grow and dispense. The Department estimated it would need between $750,000 to $1,500,000 to create the “robust regulatory structure” required by the U.S. Department of Justice.
Nevertheless, the Department of Health devised an implementation plan for SB 1030, which was made public in August. Four legal challenges were promptly filed by nurseries with various objections. They were consolidated and heard by Administrative Law Judge David Watkins in Tallahassee October 14-15.
Watkins’ conclusions, issued November 14, put the selection of dispensaries on hold. The Department of Health was instructed to correct the plan’s flaws, most basic of which is the lottery mechanism itself, which left the matter to chance rather than the applicants’ merit. Watkins quoted Seth Hyman’s poignant statement, “I want my daughter to have medicine from the best possible source, not the luckiest.”
Watkins also rejected the requirement that cultivation, processing, and dispensing must be done on the same or contiguous property. This will save a lot of driving, because most big nurseries are outside the urban areas where most people live. Watkins sensibly allows oil from plants grown in the country to be sold in the city.
Watkins also rejected Level 2 background screening for employees (as opposed to owners and managers). And he rejected the requirement in the Health Department plan that a dispensary medical director be a physician who does not authorize patients to use low-THC cannabis.
According to Pat in Gainesville, “The arguments against the lottery seemed logical: ‘We don’t want some guy who has a tree farm and doesn’t know anything about cannabis to put his name in a hat and get chosen…’ But that was never going to happen, because the nurseries could not have gotten ready without partners who knew about cannabis. They had all been contacted by big players from California and Colorado who told them, ‘If you win the lottery, we’ll back you, we’ll provide everything you need. For a piece of your business.’”
The Department of Health would have allowed license holders to sell an interest in their business —up to 75%— and to create partnerships shielding them from risk if the federal government declared the Florida program illegal. But the judge specified that each application would have to be in a qualified nursery’s name.
SB 1030 states that the low-THC products it legalizes will have to originate in Florida —but doesn’t address the question of how CBD-dominant seeds and cuttings will come into the nurseries’ possession!
An attorney for the Department of Health, formally queried, replied that the Department didn’t design the program it was directed to implement. Apparently, everyone is supposed to look the other way. Holley Moseley says “It’s like the military with ‘Don’t ask, don’t tell.’”
Keepin’ on keepin’ on
Amendment 2 did not pass, but on Election Day Floridians expressed support for safe access to medical marijuana by a 58 to 42 margin. “The politicians in Tallahassee took note of that,” says Anneliese Clark.
Clark is now involved with “a group that will draft a bill and lobby. It is a collaboration of non-partisan medical, law enforcement and business people along with parents and patients. We had our first meeting [in late November] and are just in the planning stages.”
Soon after Election Day, Holley and Peyton Moseley hosted a “meet-and-greet” at which the stalled implementation of SB 1030 was discussed. Paige Figi spoke, as did Mrs. Moseley. About 80 people attended. Their children are suffering and the situation is confusing. For example, some people assumed that signing up for the Realm of Caring waiting list automatically put them on the state’s research registry. (Holley Moseley explained otherwise.) No one could give a date when CBD-dominant cannabis extracts will be available in Florida. Six months if all goes well, was one speaker’s guesstimate.
There are 700 people on the RoC Florida waiting list, 90 percent with in-state addresses, others from Alabama, Georgia, “and as far away as New Jersey,” according to Mrs. Moseley.
Now that the dispensaries will be chosen based on the applicants’ qualifications instead of a lottery, Stanley Brothers Social Enterprises have offered their products and services to one nursery. We assume it has an excellent chance of becoming an authorized dispensary. Although the Stanleys are not making money on Charlotte’s Web, their brand has a sterling reputation and they will have post position when the time comes for selling THC-dominant cannabis in Florida.
Paige Figi foresees the day when Realm of Caring will support the use of “Charlotte’s Web Hemp Oil and… other products that are sure to arise and meet our standards of safety, lab testing, efficacy, supply, and price.”