By NOLAN CLAY
The attorney behind a challenge to medical marijuana regulations said the legal effort has shown success despite a loss in court Tuesday.
“We’ve put their feet to the fire,” attorney Rachel Bussett said. “The work that we are doing is pushing the Department of Health forward to act the way that they’re supposed to act.”
The attorney is representing more than a dozen Oklahomans who want to use medical marijuana, be in the business of providing it or both. They are challenging 21 rules and had sought an emergency injunction to keep those rules from being implemented.
A judge Tuesday rejected the request.
Cleveland County District Judge Michael Tupper found the petitioners had not shown “at this point” that the Board of Health had overstepped its authority Aug. 1.
“There’s a lot here,” the judge said before going through the 21 rules one by one. “This is uncharted territory for the state of Oklahoma.”
The judge also pointed out in his overall remarks that “in the big picture” it would be up to the legislative process to work out issues with the new law.
The decision Tuesday does not end the case. The judge could still throw out some or all the challenged rules at a later date or choose to leave them alone again.
Another hearing won’t come until after the petitioners are able to exchange evidence with the Health Department. By that time, the challenge could be moot.
“The hope is that the Legislature will step in,” Bussett said after the hearing. “There is a myriad of different statutes that need to be fixed. And that’s things that these groups have been working on to present to the Legislature. So the hope is all of this together moves the Legislature to take action and a trial is never necessary.”
Both in court and afterward, the attorney claimed the legal challenge already has led the Health Department to take an important overdue step.
She explained that the Health Department on Aug. 8 announced it had appointed all 12 members of the Medical Marijuana Food Safety Standards Board. She said that was one day after her petitioners asked for an emergency injunction.
The Board of Health first passed rules July 10 but redid them Aug. 1. Board members acted after a public outcry and after Attorney General Mike Hunter said they had overstepped their authority July 10.
In applying for an emergency injunction, Bussett had argued “the Department of Health’s attempt to rectify the mess … resulted in an even bigger regulatory dumpster fire.”
Most upsetting to medical marijuana advocates now is a rule stating that growers are regulated like restaurants.
Bussett complained in her application that the Health Department with the rule “has potentially made any outdoor commercial cultivation an impossibility.”
An attorney representing the Health Department disputed that, telling the judge the rules absolutely allow for outdoor growing. The attorney, Solicitor General Mithun Mansinghani, also said the challenged rule simply lets commercial licensees know that the Public Health Code still applies to their operations.
In announcing his decision on that rule, the judge agreed with the Health Department. The judge said the rule does not impose any new requirements on commercial licensees and just reminds them of existing statutory duties.
The judge, though, voiced reservations during his remarks about a couple of rules. In particular, he said he struggled with a rule barring any child who has a patient marijuana license from going into a dispensary alone.
The rule specifically states: “No minors under the age of 18 may enter commercial establishments unless the minor is a patient license holder accompanied by their parent or legal guardian.”
The judge questioned if that rule goes too far since anyone under 18 needs parental permission and recommendations from two doctors to get a patient license in the first place.
Bussett said the judge’s concerns could lead to those particular rules being amended in the future.
The legal challenge was filed July 13, three days after the Board of Health first passed pot rules. It was amended after the Board of Health redid the rules Aug. 1.
Another legal challenge is still pending in Oklahoma County District Court.
