Marijuana plants must be tracked from seed to sale under a requirement of the Oklahoma Medical Marijuana Authority.
An Okmulgee County judge has agreed to keep a temporary order in place that prevents enforcement of a state contract with an out-of-state medical cannabis seed-to-sale contract provider.
Special Judge Pandee Ramirez was scheduled to preside over a hearing Tuesday in the case of a business owner who filed suit against the Oklahoma Medical Marijuana Authority after the state attempted to require businesses to use the services of Florida-based Metrc to satisfy seed-to-sale tracking compliance requirements.
But in a Facebook Live broadcast Monday evening, Tulsa-based attorney Ron Durbin — who represents Dr. Z Leaf in the suit — said the hearing was postponed with no new court date set. Ramirez signed an order granting the state’s motion to strike the hearing, which was filed Tuesday afternoon.
“The current temporary restraining order, which prohibits them from requiring Metrc be utilized by anyone in the state of Oklahoma — it’s in effect until further order of the court,” Durbin said in the broadcast, adding that “someone’s gonna have to do something to get this issue back in front of the courts to get the restraining order lifted.”
In April, the OMMA and Durbin came to an agreement “in the interest of judicial economy” to prevent enforcement of the terms of Metrc’s contract for 60 days. The order indicates that the OMMA will not, as it had initially planned, require businesses to use Metrc’s platform while it is in effect but states that businesses still must meet the agency’s monthly reporting requirement.
Durbin’s lawsuit, filed on behalf of operator Beau Zoellner, argued that the state granted Metrc a monopoly over the practice of seed-to-sale tracking when it signed a contract that included provisions requiring every licensed business to pay monthly “service fees” and purchase RFID plant and package tags.
Last week, the OMMA’s legal counsel argued that state law requires the OMMA to implement a seed-to-sale tracking system that tracks items in real time and that its contract with Metrc “fulfilled its statutory duty.”
Durbin, though, contends that the law does not give the OMMA license to force businesses to use a single service provider and pay mandatory fees.
In earlier court documents, the OMMA argued that more than 7,100 business licensees used Metrc’s platform in some way before the temporary injunction took effect and forced a pause on training.
OMMA Director Kelly Williams wrote in a May 28 affidavit that Metrc’s system is cloud-based and therefore gives the OMMA the ability to view information added in real time.
She said the system will help in “preventing diversion and inversion of illegal medical marijuana and medical marijuana products,” as well as expedite the notification process in the event of product recalls.
Metrc was not initially named in the lawsuit but joined after arguing that the restraining order affected its contract terms. It has said the contract should not be considered a monopoly because “a governmental contract cannot give rise to antitrust violations” under state law.
In its proposal to Oklahoma Management and Enterprise Services, Metrc argued that its platform was an important way to help state officials have proper oversight of the legal cannabis industry.
Its contract, which Durbin released publicly, says the monthly service and RFID tag fees were meant to help Metrc recoup its “initial investment” to get its system into operation for Oklahoma businesses.
In Durbin’s live broadcast on Monday, he reiterated his view that the OMMA’s “tweets aren’t rules and regulations” for the more than 10,000 licensed businesses in Oklahoma’s legal cannabis industry. The agency has made frequent use of Twitter to share information about the seed-to-sale program and argued last week that social media posts can be one of several ways to give adequate notice to businesses to comply.
Durbin also detailed his concerns about the attitude he alleged OMMA personnel have displayed as the lawsuit has proceeded in court.
“There was some attempt today to say, ‘Hey the plaintiffs requested a continuance, as well,'” Durbin said. “Well, they’re right technically, but they don’t tell the whole story.”
He detailed attempts to have OMMA officials, including Williams, served with subpoenas to give testimony and claimed — providing video evidence apparently taken outside Williams’ home — that she and other employees have been “dodging service” from process servers.
The OMMA has not yet publicly responded to that allegation, but Durbin said Williams’ being served in the case on Friday did not give the state enough time under the law to formulate a response. In a filing this week, Metrc’s counsel argued that the nine subpoenas it received last week should have been delivered personally rather than emailed.
It also said the subpoenas would require travel to Oklahoma from Florida and deemed it “burdensome and unfair” to suggest that the company should fly its staff to Okmulgee County to testify in the case “on four days’ notice.”
Related video: Okmulgee County judge approves order in April to temporarily stop marijuana seed-to-sale tracking contract enforcement
Attorney Ron Durbin speaks after obtaining an agreed order that directs the Oklahoma Medical Marijuana Authority not to enforce its requirement that businesses use its chosen seed-to-sale tracking provider for at least the next two months.
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