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Legislators mulling 'tweaks' to Utah's medical marijuana law after D.A.s question dispensary legality

FILE - An employee prunes a marijuana plant, at a Fotmer SA, greenhouse in Nueva Helvecia, Uruguay, Wednesday, Jan. 30, 2019.
FILE - An employee prunes a marijuana plant, at a Fotmer SA, greenhouse in Nueva Helvecia, Uruguay, Wednesday, Jan. 30, 2019.
Matilde Campodonico, Associated Press

SALT LAKE CITY — Amid some counties' concerns that they could face federal retribution by being involved in Utah's marijuana distribution next year, legislators are mulling changes to the state's new medical cannabis law.

"It’s a work in progress. It’s a moving target in some ways," said Senate Majority Leader Evan Vickers, R-Cedar City, co-sponsor of HB3001 that sets up Utah's medical marijuana program.

"And what we’re really trying to do, and I'm very sincere about this, is that we want to be able to have a medical product in patients' hands as soon as possible, delivered with medical professionals dealing with it in a responsible way."

Both Salt Lake and Davis counties' top attorneys have advised their county health departments against dispensing medical marijuana once the state's distribution network is up and running.

The Utah County Attorney's Office has yet to decide its position on the issue but is expected to discuss it after reports about Salt Lake and Davis counties' stances, said Sherrie Hall Everett, the office's spokeswoman.

For Davis County, "it has nothing to do with the politics of the issue, it’s strictly the legalities of the issue and implementation," said County Attorney Troy Rawlings.

State lawmakers have listened to counties' concerns for months and discussed possible ways to decrease the risk to them, Vickers said.

He said Gov. Gary Herbert is planning to meet with legislative leaders to consider the possibility of modifying the law.

It was uncertain Tuesday whether a special legislative session would be called to discuss the issue, said Matt Lusty, deputy chief of staff for the Utah House.

If the law needs to be tweaked in order to meet deadlines, "we’ll do it," the senator said.

"The Utah Department of Health has been working with local health departments for several months on implementation of the Utah Medical Cannabis Act. We are aware of the concerns some local health departments and county attorneys have regarding their role as medical cannabis distribution points," Tom Hudachko, spokesman for the Utah Department of Health, said in a statement Tuesday.

"We are committed to working with the counties, state Legislature and governor's office to find solutions that will ensure patients statewide have access to medical cannabis within the timeline set out in the Medical Cannabis Act," according to the statement.

Utah voters approved a medical marijuana program via Proposition 2 during last year's election. But the Legislature replaced it with HB3001 in a special session, days after the new law took effect in December, to implement a compromise law.

The new law included significant changes on how medical marijuana could be legally recommended, sold and consumed. The law allows for up to 10 licenses to be awarded for growers to provide the cannabis, while the distribution is controlled by the state. The law as it's currently written allows cannabis deliveries to be sent to local health departments for patient pickup.

The law requires the program to be running by March 1, 2020.

Utah House Democratic leadership in a statement Tuesday criticized legislators for changing Proposition 2 in the first place.

"Legislative leadership told Utah that Proposition 2 … needed to be replaced because it would not function. Now it looks like their replacement plan also will not function. The Legislature cannot override the will of the voters with failed plans … and hope to maintain any kind of trust with the people we are supposed to represent," according to the statement.

Rawlings' office became involved in the issue when the Davis County Health Department asked for legal advice and what the ramifications of distributing a substance federally outlawed under the Controlled Substances Act could be, he explained.

In times when federal and state laws conflict, Rawlings said, federal law always legally trumps state law as part of the Supremacy Clause. Such dilemmas have arisen in the past in Utah, but none of a similar public interest and importance have, he said.

Though the U.S. Attorney's Office for the District of Utah may not choose to prosecute public workers for dispensing medical marijuana because of "budget restrictions," Rawlings said, the possibility of such prosecution remains. "A more realistic" outcome could be losing significant sums of federal grant money, he said.

Other counties have also expressed anxiety about being involved in marijuana distribution.

"We had heard this concern working with our partners with the Utah Association of County Attorneys," said Lincoln Shurtz, director of government affairs for the association. The organization has also been working with legislators, Shurtz said.

"It looks like we should be seeing some draft legislation within the next week or two that will pull counties out of the distribution chains," Shurtz said.

He said some options that have been discussed included using state facilities as distribution points instead of county health departments, or using a virtual home delivery service.

Vickers could not confirm what changes have been proposed or what the most likely change will be.

Salt Lake County District Attorney Sim Gill said he's been vocal about the issue for months.

"My first concern was, look, I'm the Salt Lake County D.A. My client is the health department and Salt Lake County government. And as the law was created, it created a disproportionate shifting of liability to the county in violation of federal law, and I was very deeply concerned about advising a client to knowingly and intentionally violate what would be federal law."

But he says he also had to balance his support for Proposition 2, as he was the only prosecutor to publicly vocalize his support for it.

"And I did so because I did not want to criminalize the conduct of patients and I wanted to make sure that whatever we end up with, we maximize the access to patients. So rather than be sort of alarmist about it, I reached out to the leadership up on the Legislature and shared with them my concerns about these problems that they had with the law," Gill said.

He says they began an "open dialogue where they were receptive to the concerns that I raised."

Gill also believes the counties will be "removed from the equation." But if they aren't, he says he's counseled the Salt Lake County Health Department not to distribute medical marijuana.

Rawlings emphasized that he and his office are not against medical marijuana.

"This is an important issue, though, that I do expect and hope gets resolved because medical marijuana is important to folks who can benefit from it, and who legitimately need it and for those types of ailments that it can assist," he said.