Question Submitted by Cox, 022420 OKAG, 2020 OK AG 1
|Docket Nº:||2020 OK AG 1|
|Party Name:||Question Submitted by: Gary Cox, Commissioner of Health, Oklahoma State Department of Health|
|Case Date:||February 24, 2020|
|Court:||Oklahoma Attorney General Opinions|
¶0 This office received a request from your predecessor for an official Attorney General Opinion in which he asked, in effect, the following question: 1
The Oklahoma Medical Marijuana and Patient Protection Act requires applicants for medical marijuana business licenses to satisfy a durational residency requirement. See 63 O.S.Supp.2019, § 427.14 (E)(11). The Act was signed into law on March 14, 2019 and took effect on August 29, 2019. Meanwhile, a separate law exempted from the Act's residency requirement those licensees who were issued a license before the Act's "enactment." Id.
Must the Oklahoma State Department of Health revoke licenses issued between when the Act became law and when it took effect if the licensee does not meet the new residency requirement?
¶1 In June of 2018, by voter initiative, State Question 788 ("SQ 788") established a medical marijuana program in Oklahoma. The following year, the Legislature passed several laws amending or clarifying the parameters of the program, including eligibility criteria for medical marijuana business licenses. Your question focuses on two provisions of these laws: (1) the new durational residency requirement for business license applicants and (2) the requirement's associated "grandfather clause."
¶2 The Oklahoma Medical Marijuana and Patient Protection Act, 63 O.S.Supp.2019, §§ 427.1 --427.23 ("OMMPPA"), was signed into law by the Governor on March 14, 2019. It authorized the Oklahoma Medical Marijuana Authority, a division of the Oklahoma State Department of Health ("Department"), to handle State operations related to medical marijuana, including issuing business licenses to eligible applicants for growing, processing, and distributing marijuana. See 63 O.S.Supp.2019, § 427.3.
¶3 Upon taking effect on August 29, 2019, 2 the OMMPPA imposed a durational residency requirement on applicants for medical marijuana business licenses. A durational residency requirement mandates in-state residency for a certain length of time before an applicant is eligible for a license. Under the OMMPPA, an applicant must "provide proof of Oklahoma residency for at least two (2) years immediately preceding the date of application or five (5) years of continuous Oklahoma residency during the preceding twenty-five (25) years immediately preceding the date of application." 63 O.S.Supp.2019, § 427.14 (E)(11) (emphasis added). Before the OMMPPA, there was a residency requirement for obtaining a medical marijuana business license, but there was no specific duration attached. See 63 O.S.Supp.2018, §§ 421(B) (dispensaries), 422(B) (commercial growers), 423(B) (processors).
¶4 Some applicants, however, were grandfathered into the old system. In the same session that the OMMPPA was passed, House Bill 2601 added an exemption from the new durational residency requirement for business licensees who received their licenses before the OMMPPA was enacted: Applicants that were issued a medical marijuana business license prior to the enactment of the [OMMPPA] are hereby exempt from the two-year or five-year Oklahoma residency requirement mentioned above.
63 O.S.Supp.2019 § 427.14(E)(11) (emphasis added) (hereafter, the "Grandfather Clause").
¶5 Meanwhile, it is our understanding that the Department began issuing one-year business licenses under the SQ 788 residency requirements in August of 2018 and continued to do so until the OMMPPA became effective on August 29, 2019. That fact, along with the Grandfather Clause, prompts your question: must the Department revoke medical marijuana business licenses issued in the roughly five-month gap between the date the OMMPPA became law and the date its provisions took effect, if the licensee fails to meet the new durational residency requirement?
¶6 Your question proceeds in two parts. As a threshold matter, you first ask whether the Grandfather Clause's use of "enactment" refers to the date the OMMPPA was signed by the Governor or the date its provisions took effect. If the latter, then all applicants issued licenses during this temporal gap are exempt from the durational residency requirement and our analysis ends--the Department need not revoke these licenses. But, if it is the former, the Grandfather Clause does not apply, and we move on to the question of whether the Department must revoke these licenses.
A. The "enactment" of the OMMPPA occurred when it was signed into law by the Governor on March 14, 2019.
¶7 To part one of your question, the Grandfather Clause exempts only "[a]pplicants that were issued a medical marijuana...
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