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Attorney general advises health board to convene special meeting to amend medical marijuana rules

OKLAHOMA CITY - Attorney General Mike Hunter has advised the state's health department to convene a special meeting to amend rules passed on medical marijuana.

According to Hunter, the current rules provide provisions which are inconsistent with the language of State Question 788 and the State Board of Health acted outside of its authority when it voted to implement them.

“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," Hunter said in a statement. “Moving forward, I encourage all stakeholders to engage with the legislative working group looking at medical marijuana to ensure they have their concerns and recommendations heard and addressed by the legislature.”

On July 10, the board of health passed emergency rules on medical marijuana with amendments that would ban the sale of smokeable medical marijuana products in dispensaries and also require pharmacists to be on-site of dispensaries. The rules were approved despite advice against it from then-legal counsel for the Oklahoma State Department of Health, Julie Ezell, who resigned from her position amid a criminal investigation.

In a letter sent to Interim Health Commissioner Tom Bates, Hunter said the board’s role in limiting the forms of marijuana products is confined to food and safety standards that are in line with food preparation guidelines. This would not apply to prohibiting the sale of smokeable, vapable, edible or other forms of marijuana.

"The board has not been given any express or implied statutory authority to impose additional requirements on licensees. Thus, the board rules improperly require every licensed dispensary to have 'a current licensed pharmacist' present 'on-site at least 40 hours per week,'" Hunter said.

Other concerns outlined in the letter included the restricting of dispensaries to limited locations and prohibiting dispensaries from co-locating with other businesses.

Amid Hunter's recommendation comes renewed calls for a special session from New Health Solutions Oklahoma, which funded the Yes On 788 campaign. NHSO political director Jed Green said Hunter's recommendation did not come as a complete surprise.

"You cannot have five, unelected bureaucrats overturn the will of 507,000 people in a very public way and anticipate that there’s not going to be hell to pay," Green said. "Everything else that we are doing, be it lawsuits being filed by the public, the time that the AG has to spend defending this stuff, this is all wasting taxpayer dollars. This is going to be far more expensive than a special session."

As of Wednesday, Rachel Bussett with the Bussett Legal Group said a lawsuit filed by her firm against the OSDH last week was moving forward. Bussett is representing eight people in the lawsuit over the new rules.

"The attorney general’s opinion supports the finding that the department of health has overstepped throughout this process," Bussett said. "He cited specifically the marijuana leaf rules, the dispensary rules, rules regarding the limitation of locations."

While the lawsuit is asking for injunctive relief, Bussett said it would not delay the implementation of State Question 788.

In response to the Hunter's recommendation, the board of health's president Tim Skarkey released this statement:

"The Board of Health appreciates the quick review by the Attorney General and acknowledges the advice and counsel regarding the prior adoption of emergency rules on State Question 788. The legal analysis by the Attorney General provides clarity on several rules and the legal authority we have to construct a regulatory framework for a state-wide medical marijuana program.

I have asked Commissioner 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.

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."

A spokesperson for Governor Mary Fallin told News 4 there was no change in her decision to not call a special session. However, Fallin did release the following statement:

“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.

I want Oklahomans to know that dedicated state employees are working hard to put a process in place that will provide a medical framework with public health and safety as a the main priority. State Question 788 was written with a 30-day implementation deadline. It is unfortunate there was not more consideration given by proponents of SQ 788 as to how challenging it is to place such a quick turnaround on a very complicated subject. However, the state will carry out the responsibility of administering this law.”

To read the full letter to from Hunter, click here.