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Governor pushes back on county attorneys who advise against state-run medical cannabis distribution

Posted at 11:02 AM, Jul 31, 2019

SALT LAKE CITY — Governor Gary Herbert suggested changes may be coming to Utah's medical cannabis program before it even launches, but also pushed back on assertions that county health departments might be breaking federal law if they dispensed cannabis.

In a statement to FOX 13 on Wednesday, the governor's office said he has been involved in an ongoing dialogue to implement the law passed by the legislature that overrode Proposition 2.

"He is committed to ensuring patients have access to medical cannabis within the timeline set out in the Medical Cannabis Act," the governor's office said. "As part of these ongoing discussions, agencies may identify and suggest changes to the law in order to ensure that our medical cannabis delivery system meets the needs of Utahns while also providing appropriate safeguards and proper regulation."

The governor's office said he intends to meet with legislative leadership in mid-August and they intended to discuss issues with the medical cannabis law.

"If the governor and state leaders determine that a special session to make changes to this law is warranted, it will be called at an appropriate time," the statement said. "Right now, H.B. 3001 is the law of the land. The Salt Lake and Davis County Departments of Health, and all others who are tasked to implement the Utah Medical Cannabis Act, should do so in a manner that is consistent with the timeline prescribed in the Utah Medical Cannabis Act. Any suggestion that the current law would require county employees to be 'drug dealers' is unprofessional and inappropriate."

In response, Davis County Attorney Troy Rawlings said the governor is not legal counsel for the Davis County Health Department.

"The current statute absolutely does require Davis County employees to distribute a federally controlled substance in violation of the Controlled Substances Act. To suggest otherwise is unprofessional and inappropriate," he said in a statement Wednesday to FOX 13.

Rawlings said in an interview Monday he had advised his county's health department not to participate in distributing medical cannabis out of concerns that they could lose millions in federal grant dollars and county workers could potentially be prosecuted because marijuana remains a federally prohibited drug.

"The federal Controlled Substances Act is directly in conflict with what the state statute requires health departments to do," Rawlings said at the time. "There is no exemption in federal law for being basically a marijuana distributor — a dealer — for a county. There is no exception."

On Tuesday, Salt Lake County District Attorney Sim Gill said he gave similar advice to the Salt Lake County Health Department months ago.

"We’re not going to participate in something that is, facially, going to be illegal," Gill said.

On Wednesday, Gill reacted to the governor's statement by noting lawmakers have given their support for making changes.

"For us, the willingness of the leadership to ostensibly remove the counties out of the equation makes any reference to criminality moot. The focus is, as it should be, getting medical cannabis to the patients who need it without fear of being branded as criminals," he said.

The public statements by the chief legal officers of two of Utah's most populous counties has impacted plans for the state-run medical cannabis program. Supporters of Prop. 2 have argued that the state should not be dispensing marijuana, but should leave it to private dispensaries (who run the risk of prosecution) like other states.

On Tuesday night, the Utah Association of Local Health Departments -- which represents all of the state's local health departments -- told FOX 13 it had been informed counties would likely no longer be required to dispense medical cannabis.

Legislative leaders have said they are listening to county attorneys and health departments and working on a solution, which may involve new legislation to fix the bill. That could include increasing the number of privately-run dispensaries, something medical cannabis advocates want.

But Gov. Herbert's office pushed back on the idea that Utah could lose millions in federal grant money for health programs. Under a public records request by FOX 13, a letter was provided from the Department Health and Human Services assuring the state its applications would not be affected.

"Utah's Medical Marijuana law will not affect the State's eligibility to apply for HHS grants nor will it affect the outcome of the State's application," Acting Assistant Secretary for Financial Resources Jennifer Moughalian wrote in the letter to the governor.

It has done little to ease the anxiety of county prosecutors, who have acknowledged odds of prosecution or federal action against Utah are slim -- but not guaranteed. They point to U.S. Attorney for Utah John Huber's statements prior to Prop. 2 passing that marijuana remains illegal under federal law.