MEDICAL MARIJUANA HIGHLIGHTS
by Sarah Lee Gossett Parrish, Cannabis Lawyer1
On Monday, February 3, 2020, Oklahoma’s new legislative session began and within a matter of days, Oklahoma legislators had filed numerous bills relating to Oklahoma’s medical marijuana industry. Between now and 5:00 p.m. on Friday, May 29, 2020 (the Legislature’s scheduled adjournment date, which is always subject to change), Oklahoma’s House and Senate will consider these proposed pieces of legislation and likely pass a few of them. Highlights of surviving bills and those dead in committee are discussed below. But first, what are the legislative deadlines of which you should be aware?
The deadline for bills to be advanced by House and Senate committees was Thursday, February 27. Significantly, bills not heard in committee are now basically dead. For the bills making it out of their initial committee (as the result of a favorable vote), the next deadline is March 12, the date on which bills must make it out of their chamber of origin (the House or the Senate), in order to move forward.
On or before April 9, surviving bills must then obtain a favorable committee vote to make it out of committee in the opposite chamber (if the bill is a House bill, it must make it out of Senate committee; if the bill is a Senate bill, it must make it out of House committee).
Finally, on or before April 23, 2020, the bills advanced by committee in the opposite chamber must be voted upon by that chamber and, if they survive the vote and make it out of the opposite chamber from which they originated, then they will be presented to the Governor for consideration and signing into law.
With these dates in mind, what are the major bills that could impact Oklahoma’s medical marijuana industry? Below are the highlights.
SIGNIFICANT BILLS STILL ALIVE
Bills that passed in committee pursuant to a favorable vote and now must make it out of their chamber of origin (the House or the Senate) by March 12, 2020, in order to move forward, include the following.
House Bill (“HB”) 2779 as amended is perhaps the most alarming piece of legislation that has passed in committee. The bill, as amended, would ban new dispensaries from locating within three hundred (300) feet of a church or “any public or private school entrance”. The bill defines a “place of worship” as follows:
“1. Any permanent building, structure, facility or office space owned, leased, rented or borrowed, on a full-time basis, and used no less than biweekly for worship services, activities or business of the congregation, which shall include, but not be limited to, churches, temples, synagogues and mosques; and
2. Any permanent building, structure, facility or office space owned, leased, rented or borrowed for use on a temporary basis of no less than twelve (12) months, and used no less than biweekly for worship services, activities or business of the congregation, which shall include, but not be limited to, churches, temples, synagogues and mosques.”
HB 2779 also provides that, “[r]etail marijuana businesses established prior to November 1, 2020, which do not conform to the distance requirements provided for in this subsection shall be authorized to continue operating in their current locations.”
This legislation, proposed by Representative Jim Olsen of Sequoyah County, originally provided for a limitation of one thousand (1000) feet and was amended in committee to reflect the more restrictive limitation of three hundred (300) feet. While Representative Olsen describes his bill as “just a zoning law” in a January18, 2020, article written by Kelsy Schlotthauer of the Tulsa World, passage would have an astronomical impact on potential location sites for new dispensaries in our state, known for having a church on practically every corner.
Additionally, the new, shorter distance limitation from any public or private school would further impact location sites for new dispensaries.
The proposed bill also contains notable provisions concerning the ability of employers to “take action against a holder of a medical marijuana license if the holder uses or possesses marijuana while in his or her place of employment or during the hours of employment”, but curtails when such action may be taken, stating that “[e]mployers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components”. How this bill will impact current law and designations of ‘safety-sensitive jobs” by employers remains to be seen.
Home delivery of medical marijuana may be in your future under HB 3227, filed by Representative Jon Echols of Oklahoma City, which provides for home delivery of medical marijuana to licensed Oklahoma patients and reduces the fee for a transporter agent license from $100.00 to $25.00. The bill also removes the Global Positioning System (“GPS”) tracker requirements for transporter agents’ vehicles.
HB 3959, filed by Representative Scott Fetgatter of Okmulgee, would establish the Oklahoma Medical Marijuana Authority (“OMMA”) as an independent agency with a nine-member governing board and a governor-appointed executive director.2 The proposed nine-member board would serve at the pleasure of the appointing authority and each member could be removed or replaced without cause.
OMMA’s current Director, Travis Kirkpatrick, is protected from removal until July 1, 2022.
The nine board members include a chief of police of a municipality with a population over one hundred thousand (100,000), a sheriff of a county with a population under twenty-five thousand (25,000), a district attorney selected by the Governor from a list submitted by the District Attorneys Council, and one member who represents the health care industry.
The remaining five members shall be directly involved in Oklahoma’s medical marijuana industry, including one member appointed by the Governor who is a licensed medical marijuana commercial grower; one member appointed by the Speaker of the Oklahoma House of Representatives who is a licensed medical marijuana processor; one member appointed by the Speaker of the Oklahoma House of Representatives who is a licensed medical marijuana dispensary owner; one member appointed by the President Pro Tempore of the Oklahoma State Senate who is a licensed medical marijuana transporter; and one member appointed by the President Pro Tempore of the Oklahoma State Senate who is a licensed medical marijuana testing laboratory owner.
A stand-alone OMMA could be a significant step forward, and the involvement of nine board members in future rules and regulations could be beneficial to our industry.
SB 1248 would allow pharmacies to apply for dispensary licenses and operate as dispensaries “[u]pon action by the federal government to remove marijuana from Schedule I of the Uniform Controlled Dangerous Substances Act”.
HB 3474 would remove the statutory cap on OMMA’s issuance of medical marijuana waste disposal licenses, which licenses are currently limited to ten during year one, pursuant to Oklahoma’s Waste Management Act.
Another bill relating to dispensaries, HB 3957, would allow dispensaries to produce and sell their own pre-rolls without the need for a processor’s license. This would be a welcome change for dispensary owners.
BILLS NOW EFFECTIVELY DEAD.
Bills that were not heard and/or voted upon in committee and are now effectively dead include the following.
SB 1519, which would allow municipalities to call a vote to prohibit medical marijuana, was not heard in committee. Similarly, the much-discussed SB 1520, which would raise the medical marijuana business license fee from $2500.00 to $10,000.00, was not heard in committee.
Additionally, SB 1469, which would require all medical marijuana businesses to obtain worker’s compensation coverage and $1 million in liability insurance, died in committee.
Notably, bills that would have restricted billboard advertising and medical marijuana use in outdoor seating areas or standalone bars, SB 1257 and HB 3533, respectively, also were not heard in committee and are now dead.
This is all good news for Oklahoma’s medical marijuana industry.
Unfortunately, HB 3061, which would prohibit counties from discriminating against medical marijuana businesses through zoning, was not heard in committee and is now dead. This is disappointing, given that the zoning issues with municipalities arising out of the new certificate of compliance requirement have become protracted and difficult to resolve in many instances.
Similarly, it is unfortunate that HB 3941, which would provide nursing home patients and hospice care recipients the right to use medical marijuana, was not heard in committee.
So…what’s the take-away?
It’s going to be a very busy spring here in the Wild, Wild West.