OMMA’S NEW RULES—THE BIG PICTURE

by Sarah Lee Gossett Parrish, Cannabis Lawyer

The Oklahoma Medical Marijuana Authority’s (“OMMA”) new rules became effective the middle of September 2019, on the heels of the Oklahoma Medical Marijuana and Patient Protection Act (also known as the “Unity Act”) and a sea of trailer bills. I have written several Herb-Age columns and numerous blog posts2 about the Unity Act (“Unity”) and its trailer bills. Now, let’s turn our attention to the new rules OMMA has implemented.

What’s in the new rules? MANY THINGS…and the first thing you read, at the top of the page on OMMA’s website about the rules, is this:

*New legislation passed in 2019 established the need for emergency rules. If you need additional clarification on interpreting these rules please seek your own legal guidance.

Speaks volumes, doesn’t it?

My second initial observation about the new rules is the length. These new rules are longer than the former emergency rules. After a comprehensive definitions section, the rules discuss criminal history screening, registration with the Oklahoma Bureau of Narcotics and Dangerous Drugs, proof of residency and identity, photographs required of applicants, and recommending physicians’ required registration and standards.

Subchapter 2 addresses applications for patient-related licenses—patients; minor patients; caregivers; temporary patient licenses; renewals, and prohibited acts and penalties. The rules provide for a new, short-term 60-day license available to adult and minor Oklahoma residents with patient cards obtained with a doctor’s recommendation of 60-days use. Veterans with a 100% disability rating from the Veteran’s Administration may receive a license for a $20 fee.

The penalties now include precise fines and specific disciplinary actions, including revocation of license upon a showing “that the violation (of the rules or other applicable law) was willful or grossly negligent.” This evidences OMMA’s strategic move to a well recognized administrative law structure, including provisions for administrative hearings, application of due process with notice and the opportunity to be heard, the likely appointment of administrative law judges or hearing examiners, and application of the Oklahoma Administrative Procedures Act—all matters that I have predicted would be implemented during the continued build-out of Oklahoma’s medical marijuana regulatory framework.

The last provision in this subchapter references with approval all restrictions applicable to tobacco, making “[a]ll smokable, vaporized, vapable and e-cigarette medical marijuana” and its products subject to those same restrictions.

Subchapter 3 addresses the transporter licenses, including the commercial transporter license ($2500 each) and transporter agent license ($100 each), two newly created one-year licenses which are subject to much discussion, misinformation, and consternation. To simplify, any person who transports medical marijuana in the State of Oklahoma now must possess a transporter agent license or a commercial transporter license, regardless of whether you are a grower, processor, or dispensary licensee and as such, have been automatically issued a transporter license upon approval of your business license, or whether you are an employee or independent contractor for an OMMA business licensee.

News flash—unlike the grandfather provision in one of Unity’s trailer bills that basically exempts existing OMMA commercial business licensees from Unity’s new, two-year (or five consecutive years of the past twenty years) Oklahoma residency requirement for all new and renewal applications, the commercial transporter license and transporter agent’s license both require two-year Oklahoma residency of every successful applicant.

What does this mean in practical terms? If you are an out-of-state co-owner of an OMMA-licensed business, then you cannot legally transport your own medical marijuana product because you cannot meet the Oklahoma residency requirement to obtain such a transport license. So, what must you do? You must retain the services of a licensed commercial transporter or an individual with a transporter agent license. I have spoken with OMMA about this and have been advised that there will be no exceptions.

Subchapter 3 also addresses when, and how, these licenses can be deactivated, discusses required inventory manifests, GPS tracking devices, and other pertinent matters associated with product transport issues.

Subchapter 4 is reserved for future rules applicable to medical research licensees, and Subchapter 5 begins the new rules applicable to commercial establishments. While lengthy, the majority of these provisions present few surprises. Notable new provisions include the requirement of a certificate in good standing—a document that must be signed by officials on behalf of the city or county in which a commercial business is located, and one that already is proving very difficult to obtain in many instances.

Subchapter 5 also contains a plethora of provisions relating to inspections, inventory tracking, records, reports, and audits, penalties, noncompliance and criminal activity. I will discuss these matters, along with additional new rules and regulations, in future writings.

What’s the take-away? For now, suffice it to say, beware. The new regulatory landscape presents a sea of change, which continues to evolve.

Information contained herein provides general information related to the law and does not provide legal advice. It is recommended that readers consult their personal lawyer if they want legal advice. No attorney-client or confidential relationship exists or is formed between you and Ms. Parrish as a result of this article.

Please see my blog, which can be accessed from my website at www.slgparrishlaw.com for my comments about Unity and other issues in our cannabis space.