MORGANTOWN — The Monongalia County Commission Wednesday voted unanimously to disapprove the medical cannabis dispensary regulations passed May 27 by the county’s board of health.
The vote represents the state’s first enactment of Senate Bill 12, which took effect June 2. The law amended state code (16-2-11) to mandate the board of health’s appointing authority either approve, disapprove or amend all health department mandates within 30 days of passage.
The commissioners were unanimous in their votes, but also in their reasoning, pointing to two “fatal flaws” in the MCHD regulations — one, some of the regulations included were beyond the statutory authority of the health department; and two, the regulations were in conflict with state code.
Commission President Sean Sikora addressed the notion that local health regulations could be more stringent than the state’s, pointing to the West Virginia Supreme Court’s 2003 ruling in Foundation for Independent Living Inc. v. Cabell-Huntington Board of Health, which says health department mandates are like municipal ordinances in that they’re subordinate to state law.
He quoted a portion of the ruling, which states, “Without question, the regulatory authority of local boards of health is limited by statute to be consistent with state public health laws and the rules of the West Virginia state department of health and human resources.”
The commission’s belief that the health department overstepped its authority was consistent with multiple legal opinions solicited by the body. The MCHD received legal guidance to the contrary.
During a recent work session with the commission, BOH Chairman Sam Chico said it’s not difficult to get a legal opinion to support any position.
Commissioner Jeff Arnett took exception.
“From an attorney’s perspective, I take offense to that. And from the commission’s perspective, I take offense to that,” Arnett said during his remarks Wednesday. “We didn’t have an opinion that we wanted. We simply sought an opinion as to what the law was and what our duties were under that law.”
It was not lost on the commissioners that had the BOH made the regulations effective upon passage; the commission would have had no standing to weigh-in under SB 12 as “A rule currently in effect is not subject to approval.” However, the BOH’s regulations included an effective date of June 26, or 30 days after passage.
Commissioner Tom Bloom noted the oversight authority mandated by SB 12 was adamantly opposed by the commission.
“However, it is now in place, so we must follow the rules,” he said.
Following the commission’s unanimous vote to block the BOH regulations, Bloom put forward a second motion directing County Administrator Renetta McClure and the commission’s legal counsel to prepare a procedural order memorializing the process leading up to the first-of-its-kind action by the commission.
“So that when the state and other counties deal with other issues like this, there is a procedure,” Bloom said.
The Monongalia County Health Department did not respond to requests for comment in time for this report.
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