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AG: Board of Health ‘acted outside of authority’ on medical marijuana emergency rules; Fallin still a no-go on special session

OKLAHOMA CITY - The governor's office said Wednesday evening she still doesn't plan to call a special legislative session to implement medical marijuana in the state, even as the state attorney general called on a state agency board tasked with the job to amend the controversial rules it passed last week.

Since the narrow passage of the emergency rules by the State Board of Health, and their approval by Gov. Fallin, two lawsuits have been filed and efforts are underway to petition voters for the legalization of recreational marijuana.

Wednesday, Attorney General Mike Hunter advised the board to convene a special meeting to amend the rules, as the board's role in limiting marijuana products is confined to food and safety standards, not the prohibition of smokable, vapable, edible or other forms. Two controversial amendments approved by the board prohibited the sales of smokable marijuana and required pharmacists to be on-site at dispensaries.

"The current rules contain provisions that are inconsistent with the plain language of State Question 788 and the State Board of Health acted outside of its authority when it voted to implement them," Hunter said in a statement Wednesday. “Although I didn’t support State Question 788, the people of the state have spoken and I have a legal duty to honor the decision made by the electorate. My advice today is made pursuant to that responsibility as attorney general."

Medical marijuana was approved by nearly 57 percent of voters last month as a ballot initiative and the Oklahoma State Department of Health is tasked with its implementation.

"They just don’t have the statutory authority to do this," said Jed Green, with New Health Solutions, about the board of health's authority and the need for Fallin to call a special session. "Until the legislature gets in and meets and passes the statute that is required, we’re going to continue to have this."

Senate Democrats echoed the calls for a special session. News 4 has learned lawmakers intend to announce the members of a bi-partisan working group to implement the law Thursday.

"Today’s letter from Attorney General Mike Hunter to Health Department Interim Director Tom Bates clearly concludes that the Board of Health approved medical marijuana rules that exceed its statutory authority," said Senate Minority Leader John Sparks, D-Norman, in a statement. "The legislature should convene in special session without delay to consider the working group’s recommendations. As elected legislators, it is our constitutional duty to carry out the will of the people.”

The Oklahoma Republican Party also applauded Hunter's calls for the state board of health to convene and amend the rules.

"His position is consistent with that of our other elected leaders who are committed to upholding the will of the voters," said State Chairman Pam Pollard.

The state board of health said Wednesday afternoon that it "appreciates" the review of the emergency rules by the attorney general and that it provides "clarity" and "legal authority" the board has to construct a regulatory framework for the state's medical marijuana program.

"I have asked [Interim Health Department Commissioner Tom Bates] and his staff to make sure the appropriate modifications are made as outlined by the Attorney General in today’s correspondence. The Board of Health will call a special meeting to consider these changes as soon as possible," said board president Tim Starkey. "The OSDH staff has done an incredible job to prepare for implementation of this program and we want to make sure they have clear direction to meet the deadlines outlined in the state question and administer this new program."

But at least one group who filed a lawsuit against the state intends to move forward.

"It is not an official attorney general opinion, therefore it does not have the force of law. However, we believe that is an accurate statement of the law," said Rachel Bussett, who represents clients in a suit filed in Cleveland County.

"The government has to be held accountable," said Bussett. "Time and time again, the government, whether it's a state agency, the legislature, the governor or someone else, trying to undo the will of the people. We're not going to stand for it any more, we're fighting this battle until what the people voted on is done and implemented."

A day after the board approved the emergency rules, Fallin signed them. However, Wednesday, in light of Hunter's letter to the Board of Health, Fallin said: "Because the public didn't have ample time to weigh in with their concerns on the two last-minute amendments, the Board of Health should rescind them. My office has received calls and emails since last week's board action, with most addressing those two amendments. My legal staff and I are analyzing other points made in the attorney general's legal letter to see what other action might be necessary."

A strange twist in the medical marijuana saga is one of the people involved in the drafting of the rules, and who counseled the board against adopting the controversial amendments, resigned last week after state investigators said she confessed to sending fake threats to her government email in the days before, during and after the board's vote.

Former health department general counsel Julia Ezell, 37, was charged in Oklahoma County in connection to allegedly emailing threats to herself from an encrypted email account. She was released from the Oklahoma County Jail Tuesday evening on $5,000 bond.