Scott Goss

The News Journal

After years of delays, Delaware's second medical marijuana dispensary may be just weeks away from opening outside of Lewes.

That's good news for Mike Touhey, one of the more than 500 licensed patients who live in Sussex County.

The 56-year-old Lewes resident suffers from a chronic liver condition. He makes the nearly 180-mile round trip to the state's lone dispensary near Wilmington once a month to purchase the only medication he says relieves his nausea without causing further organ damage.

"I'm so happy because now I'll be able to afford more medicine," he said. "And I'll tell you that trip can be a five-hour pain ... during the summer time."

Touhey expects to save close to $500 a year now that he'll be able to drive a mile up the street to First State Compassion Center South under construction in the Vineyards at Nassau Valley, a mixed-use development off U.S. 9.

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The new facility is owned by the same company that runs First State Compassion Center North near Wilmington, which became Delaware's first medical marijuana dispensary in 2015. The center, which is operated by retired state trooper Mark Lally, was selected by state officials to open a downstate operation last fall.

"We're excited to offer this opportunity to our patients in Sussex County," Lally said during a recent media tour of the Lewes facility. "I'm very proud to say we are able to offer safe, affordable access to the patients' medicine in close proximity to their home."

Not all Sussex County patients are thrilled by FSCC's new center, however.

Todd Boone and Trevor Wiberg unsuccessfully sued the Delaware Department of Health and Social Services to comply with a state law that required all three counties to have dispensaries by Jan. 1, 2013.

Although the new Lewes-area dispensary comes closer to meeting that goal, both men say Lally's state-approved monopoly on medical marijuana is failing patients whose lives could be improved by greater access to the controversial medication.

They contend First State has a history of nickle-and-diming patients by limiting the size of its prepackaged products, frequently running out of strains they rely on and selling medication of varying quality. Those issues, they say, are likely to carry over to the Lewes-area dispensary.

“It’s going to be the same headaches ... and the same unreliability – only closer,” said Boone, who lives in Milton. “They didn’t improve the program, and that’s what patients really need.”

First State spokeswoman Pamela Johnston said patients like Boone are not necessarily wrong in their criticism.

Delaware limits the amount patients can purchase to 3 ounces in 14 days. But when enough people arrive early to purchase the maximum allowed, the dispensary can run out of packaged supply, forcing other customers to go without their preferred product.

Multiple measures have been undertaken to address supply issues, including limiting packaging of popular strains in smaller amounts to extend the inventory, Johnston said.

"You have to keep in mind that this is a new business in a nascent industry," she said. "There are going to be growing pains."

A long, strange trip

Delaware's foray into medical marijuana has been marked by slow progress and patient frustration from the start.

The General Assembly approved the Delaware Medical Marijuana Act in 2011, but former Gov. Jack Markell delayed its implementation for years under the perceived threat of prosecution by the U.S. Department of Justice. Marijuana is still illegal under federal law, even for medicinal use.

The state began issuing the $125 per year identification cards required to purchase cannabis in 2012, although there were no dispensaries to sell the medication. At that time, the card protected patients only from being prosecuted for possession of up to 6 ounces of marijuana, so long as they were not caught purchasing it from what was then the only source: drug dealers.

The U.S. Justice Department issued guidelines for state medicinal marijuana programs in 2013, but it took another year before DHSS approved a bid from Lally to open a pilot growing operation and dispensary in the Germay Industrial Park off Maryland Avenue.

Because of his background, Lally made an ideal candidate to spearhead the state's first dispensary. During his nearly 25-year career as a state trooper, he served as a narcotics officer and ran the unit that provided personal protection to former Gov. Tom Carper. After Carper was elected a U.S. senator, Lally ran his Sussex County office.

"For someone like myself from law enforcement to get into this, I think it probably brought some credibility to the process," the 61-year-old New Castle County native said. "We don’t fit the stereotypes that a lot of people have about marijuana."

Yet legal issues and construction delays pushed First State's opening back until mid-2015 – around the same time lawmakers voted to decriminalize marijuana, downgrading possession of an ounce from a criminal offense to a civil violation, like a parking ticket.

By then, more than 300 Delawareans were certified to use medical marijuana as a treatment for a variety of conditions, including cancer, Alzheimer's disease, multiple sclerosis, HIV and ailments that cause severe pain and nausea.

When Lally beat out four other bidders to open Sussex County's first dispensary last fall, the number of medical marijuana cardholders had exploded to nearly 1,900.

The new center initially was slated to open in January, then March and now possibly April when close to 3,000 patients statewide are expected to be authorized to purchase cannabis.

"I imagine we’ll start out with about 500 patients," Lally said of the Lewes-area facility. "And I would expect that number to double in six months."

Customer-service changes

The incredible growth in demand combined with a limited supply – both in terms of dispensaries and the amount of medical marijuana they can produce – has resulted in long lines of patients waiting for the Wilmington-area center to open and select inventory being sold out.

To help combat runs on popular strains, the dispensary recently added a new inventory management system to better anticipate spikes in demand. Patients from Sussex County can place orders by phone to ensure the dispensary does not run out before they arrive. First State North also now sells certain types of cannabis only in single gram packages to ensure enough supply is available for as many patients as possible, Johnston said.

"FSCC is doing everything it can to track purchases and adjust production," she said. "Patients have every right to voice their concerns, and we want to hear from them to ensure we're providing the best service possible."

To help First State meet demand, the state upped production limits from 150 plants to an amount "sufficient to meet the qualifying patient population demands" as determined by the Division of Public Health. Dispensaries also can now maintain an onsite inventory of 2,000 ounces, up from the 1,500 previously allowed.

No marijuana will be grown at the new 4,500-square-foot Lewes-area facility. Instead, the New Castle County dispensary will nearly double its crop production to accommodate the Sussex County operation and growing demand near Wilmington.

That's a small comfort to Boone, who suffers from pain, nerve spasms and a brain lesion stemming from a 2008 motorcycle crash. Allergic to the opiates that are frequently prescribed to treat chronic pain, he purchases 3 ounces every two weeks, enough to create a marijuana oil he mixes with grapeseed or avocado oil.

"If I have to buy an ounce worth in gram packages, that can end up costing me an extra $150 on top of what I have to spend to get there," he said. "Chopping it up like that is something a street dealer would do to make more money."

Kent facility is next

Boone and other disgruntled patients say they are hopeful real change will come once a planned dispensary in Kent County opens. State officials awarded that bid to New York-based Columbia Care, a leading national medical marijuana provider that operates 20 dispensaries in six states and Puerto Rico. The facility is slated to open this fall, although an exact location has not yet been disclosed.

"We'll see if that actually happens anytime soon," said Wiberg, a 31-year-old Rehoboth Beach resident. "It seems like the state makes up the rules as it goes along and is not required to stick to any timetable whatsoever."

Officials with patient advocacy groups such as Delaware NORML and the Delaware Cannabis Advocacy Network say they have heard similar complaints. They are also hopeful the arrival of competition helps force First State to lower prices, adjust its packaging and address lingering supply issues.

In the meantime, both organizations are lobbying the General Assembly to make Delaware the ninth state to legalizes recreational marijuana use. Such a measure, they argue, would help the state fill its current $386 million budget hole, address consumer concerns through the free market and create hundreds of new jobs. State legislators are expected to introduce a bill Thursday that seeks to legalize recreational marijuana.

"We're the only industry that is actually asking to be taxed and regulated," said Zoe Patchell, executive director of the 65-member cannabis network. "And in the process, you replace what is now a completely illicit market with one that is safe, encourages competition and promotes shared prosperity."

First State has not taken a position on the legalization of marijuana for recreational use, but Lally agreed that it could benefit his customers.

"There is no insurance that provides them with financial assistance to purchase their medicine and many of our patients don’t have the ability to work," he said. "To me, I would welcome recreational as part of my business to help supplement the medical part and make it more affordable for the patients who can’t afford it."

Gov. John Carney is not in favor of legalization for recreational use. He has said the state should first get its medical marijuana program fully operational and allow more time to study legalization in other states. The Trump administration, meanwhile, has indicated it may be willing to allow medical marijuana programs to continue unfettered while signaling a potential crackdown on states that have legalized cannabis for recreational use.

Touhey said he does not get involved in marijuana politics. He also could care less about criticisms of First State or Delaware's medical marijuana program.

"All I know is First State has a strain that helps my medical condition immensely," he said. "I'm tickled to death that the medicine I rely on is going to be available closer to my home. I don't see any reason to complain about that."

Contact business reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.

Who can get medical marijuana in Delaware

Delawareans must apply for a medical marijuana card in order to purchase at a dispensary. A doctor must first certify that they have certain qualifying conditions to be eligible for medical marijuana treatment. The cost is $125 per year, although the state's medical marijuana program offers a sliding scale for patients who demonstrate financial need.

Children and adults

Terminal illness

Intractable epilepsy

A medical condition that causes debilitating pain, seizures, intractable nausea or muscle spasms

Adults only

Cancer

HIV

AIDS

ALS / Lou Gehrig's disease

Post-traumatic stress disorder

Autism with self-injurious or aggressive behavior

Alzheimer’s disease that causes anxious or agitated behavior

Severe cirrhosis with likely need of a liver transplant

Requirements

Must be a Delaware resident

Must have a "bona fide" relationship with a physician six months before applying

Certification from that physician that the patient has an approved debilitating condition 90 days before applying

Must allow the state access to medical records

Must pay the annual fee

Must sign a statement pledging not to give marijuana to anyone who is not a cardholder

First State Compassion Center details

FSCC North

37 Germay Drive, Wilmington, DE 19804

(302) 543-2100

FSCC South

12000 Old Vine Boulevard, Building 4D 102, Lewes, DE 19958

(302) 281-4888

Hours of operation

Monday-Friday: 10:30 a.m. to 6:30 p.m.

Saturday: 10 a.m. to 4 p.m.

Sunday: Closed

Patients are more likely to experience longer wait times between opening and noon, especially Mondays, Fridays and Saturdays. Shorter wait times can be expected from 1-4 p.m. and 6-6:30 p.m., especially Tuesdays, Wednesdays and Thursdays.

Payment

Cash and debit cards are accepted.