Despite approving emergency rules from the Board of Health last week regulating State Question 788, Gov. Mary Fallin said the board should rescind its adoption of two last-minute amendments that Attorney General Mike Hunter found were improper.
Hunter said Wednesday in a letter to Interim Health Commissioner Tom Bates that the board overstepped its authority when it approved the two amendments — a ban on smokable marijuana sales and a mandate that a pharmacist be at each medical marijuana dispensary during business hours.
He recommended that the Board of Health convene a special meeting to amend the rules, which board President Tim Starkey — one of five members who voted in favor of the ban — announced will take place “as soon as possible.”
Fallin issued a statement Wednesday asking the board to rescind the amendments because she thinks the public didn’t have enough time to express their concerns about them. Their inclusion in the emergency rules, which Fallin approved July 11, drew widespread bipartisan outrage and has increased calls for a special legislative session.
State Question 788, which legalizes the cultivation, processing, distribution and prescribing of medical marijuana, was approved by state voters on June 26.
SQ 788 will become law July 26, and the state Health Department has asserted that it is on track to begin accepting license applications by Aug. 25.
“State Question 788 was written with a 30-day implementation deadline,” Fallin said in her statement. “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.”
The Department of Health allowed the public to make comments online about a proposed draft of emergency rules for implementation through July 3. The board did not allow comments from spectators during its July 10 meeting.
“My office has received calls and emails since last week’s board action, with most addressing those two amendments,” Fallin said. “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.”
Starkey announced that he has already notified Bates and his staff to “make sure the appropriate modifications are made” as outlined by the attorney general prior to the special meeting.
The board approved the amendments against the advice of then-general counsel Julie Ezell, who resigned Friday and was charged Tuesday with sending herself threatening emails about the agency’s work on SQ 788 rules.
Hunter said in his letter that the board’s role in limiting the types of products available should be about ensuring that they meet food and safety standards, not restrictions on specific forms of cannabis.
Hunter said nothing in the text of SQ 788 authorized the board to imposed the rule related to pharmacists at dispensaries.
“I have no doubt that the board in good faith sought to regulate marijuana in a manner it believed would best promote the health and safety of Oklahomans,” he said in his letter to Bates. “However, in so doing, the board made policy judgments not authorized by statute. Such policy decisions are the exclusive prerogative of the Legislature and the people.”
In a statement accompanying the letter, Hunter said, “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.”
When asked why Fallin had approved the rules as written, her spokesman, Michael McNutt, said she wanted to ensure that a proper regulatory framework existed in time to meet the deadlines written in the state question. He also emphasized that the rules are not permanent and that the governor expected changes to occur in the future.
Fallin did not have the option of approving or disapproving the emergency rules in part.
“Once the process starts on July 26, then Oklahoma is that much closer to having marijuana products for medical use available to citizens, pending the delays which could be caused by the lawsuits that have been filed,” McNutt said.
“Best estimates are that medical marijuana products will be available this fall. The governor is aiming to fulfill the two basic requests from voters who approved SQ 788 — making medical marijuana available for use to Oklahoma residents who need the medical relief and to accomplish that as quickly as possible.”
Hunter’s advice is largely in line with claims in a lawsuit filed against the Health Department in Cleveland County on Friday. Rachel Bussett, an Oklahoma City-based attorney representing the eight plaintiffs in the case, said she was glad Hunter agreed with the main points of the lawsuit but said she will not dismiss it until the state fulfills its obligation.
“We believe that the statutory language of SQ 788 has all the information necessary to get the Oklahoma medical marijuana program off the ground the way it was intended in the time it was intended,” Bussett said.
The Health Department, Fallin and the five board members who voted to approve the ban on smokable marijuana sales face a lawsuit in Oklahoma County that alleges violations of the Open Meeting Act.
Tulsa-based attorney Ron Durbin II, who represents the two plaintiffs in that suit, said Hunter’s letter is “a good first step,” but he said he wants to see more direct action.
He asserted that the five board members named as defendants should immediately resign and asked the Oklahoma County District Attorney’s Office to investigate the matter.
“Even if the board were to correct its serious overreach to usurp the will of the people, it does not change the fact that they well may have violated Oklahoma law during their power grab,” Durbin said.