Nicolas Henderson

Okla. Attorney General: Board of Health’s MMJ Rules Surpass Its Authority

The Oklahoma Attorney General Mike Hunter has advised the state’s Board of Health that emergency rules passed last week regarding medical cannabis, including a complete ban on smokable products, is against the will of voters and outside the Board’s authority, according to KOCO 5 report.

The Board’s decision was controversial and resulted in the immediate resignation of the Board’s general counsel and two lawsuits from cannabis advocacy organizations.

“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. 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.” — Attorney General Mike Hunter, via KOCO 5

The general counsel for the Board, attorney Julie Ezell, resigned days after the Board ignored her advice against banning smokable products and requiring a pharmacist at all dispensaries. It was later revealed, however, that Ezell had sent herself fake threats from cannabis activists and submitted them to authorities. Ezell was charged with two felonies and a misdemeanor for falsely reporting the threats and faking evidence.

After Gov. Mary Fallin signed the rules into effect, the Board was swamped with lawsuits from cannabis advocacy organizations, allegations of bureaucratic authoritarianism, and even calls from Republican officials to amend the rules.

“The ‘we know better attitude’ expressed by the OSBH and the shocking approval by our current governor shows contempt for the liberties and the rights we express at the ballot box as citizens. I call on all Republicans to contact your legislators, from either party and ask for a quick resolution to this desecration of the citizens’ voice.” — David McLain, Tulsa County Republican Party chairman, via High Times

In a formal letter clearly notifying the Board that it had acted outside its authority, Attorney General Hunter advised the board to convene immediately to address the rules that exceed the Board’s authority. Hunter stated specifically that the Board’s authority extends only to food preparation and safety standards.

Specific issues with the Board’s rules mentioned in the letter:

  • Limiting allowed locations for dispensaries
  • Preventing dispensaries from sharing locations with other businesses
  • Requiring sealed indoor grows only
  • Requiring licensees to be bonded
  • Setting allowed business operation hours
  • Limiting the THC content of plant material and concentrates

The Board of Health has acknowledged Hunter’s advice and said it intends to convene and amend the rules. Oklahoma state Senate Democrats are calling for legislative intervention as encouraged by the AG’s letter.

“The Senate Democratic Caucus urges Governor Fallin to call the legislature into special session to address issues related to medical marijuana. 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. The leadership of the Oklahoma Legislature will soon be convening a bipartisan working group to make recommendations regarding medical marijuana regulations. 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.” — State Sen. John Sparks, Senate Democratic Leader, via Oklahoma News 4

The Oklahoma Board of Health has struggled to operate effectively over the past year following a financial mismanagement scandal that came to light in October of 2017. The Board came close to losing over 200 employees due to insufficient funds for payroll but was saved by a $30 million cash infusion from the state government. Nearly the entire leadership of the office resigned or was fired over the winter, including the previous Health Commissioner Terry Cline. His interim replacement, Preston Doerflinger, only lasted a few months before resigning under allegations of domestic violence.

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