By Brian Skinner, Esq.
The West Virginia Medical Cannabis Act (WVMCA), signed into law by Governor Jim Justice on April 19, 2017, closely adheres to the provisions of the Pennsylvania Medical Marijuana Act (PaMMA) enacted in 2016. But there are several significant and confusing differences. One of those differences is the role of local health departments in dispensary permit approval process.
As originally enacted, the WVMCA required the Office of Medical Cannabis (OMC) to establish a minimum of three regions within this state for the purpose of granting permits to a three tyles of medical cannabis organizations — growers, processors and dispensaries. Originally, the OMC was charged with approving permits for growers, processors and dispensaries in a manner which would provide an adequate amount of medical cannabis to patients and caregivers in all areas of the state. To that end, the OMC was required to consider several factors when issuing a permit, including “Approval by local health departments.”
In 2019, the WVMCA was amended and the requirement that the OMC establish regions was removed and replaced with a requirement that the OMC consider the list of factors when approving only the locations of dispensaries, but growers and processors. However, the factors to be considered before approving the location of a dispensary still included the approval by the local health department.
Unfortunately, the WVMCA does not give either the OMC or local health departments any guidance as to the role of health departments in approving a dispensary location. And, despite being substantially copied from the PaMMA, the Pennsylvania law does not include approval of a local health department as a factor to be considered before granting a permit to a dispensary or any other medical cannabis organization.
Because of this lack of guidance, many local health departments have wrestled with this issue since receiving a letter earlier this year from the OMC requesting that they inform the OMC whether or not they approve of the location of a dispensary applicant.
Given this lack of guidance and the role of the OMC has making the ultimate decision to either grant or deny a permit to a dispensary applicant, what criteria can a local health department rely on to make the decision to approve a dispensary applicant who plans to do business in the health department’s jurisdiction?
Under West Virginia law, local boards of health are responsible for directing, supervising and carrying out matters relating to the public health of their respective counties or municipalities. Local boards of health may adopt and promulgate rules consistent with state public health laws and the rules of the West Virginia Department of Health and Human Resources, necessary and proper for the protection of the general health of the service area and the prevention of the introduction, propagation and spread of disease.
Although the Legislature is the depository of the police power of the state, it may delegate this discretionary authority to boards and commissions by providing adequate standards for the boards and commissions to follow. Quesenberry v. Estep, 142 W.Va. 426, 95 S.E.2d 832 (1956). As a result, the rule making authority of local boards of health can be quite broad.
As the Quesenberry court explained, “[t]he general rule, which requires an express standard to guide the exercise of discretion and applies to legislation regulating ordinary lawful activity, is subject to the exception that when it is impracticable to formulate a definite comprehensive rule or when the legislation relates to the administration of a police regulation and is necessary to protect the public health, morals, safety, and general welfare of the community, it is not essential that a specific prescribed standard be expressly stated in the legislation.”
We saw this in the case of clean indoor air regulations. While local boards were not specifically authorized to regulate smoking in their jurisdiction, the West Virginia Supreme Court found that that clean indoor air regulations of local boards of health that place restrictions on smoking in enclosed public places (1) were consistent with the findings of the Legislature “that smoking may cause lung cancer, heart disease, emphysema and other serious health problems,” (2) advance the legislatively prescribed public policy “to provide the state with a citizenry free from the use of tobacco,” and (3) fall within the bounds of authority granted by the Legislature to such boards. Foundation for Independent Living v. Cabell-Huntington, 591 S.E.2d 744, 214 W.Va. 818 (2003).
The WVMCA certainly relates to the administration of state’s police powers necessary to protect the public health, morals, safety, and general welfare of the community. Thus, because the legislature has delegated its discretion to approve dispensary locations to local boards of health without express standards to guide them, local health departments may promulgate regulations reasonably calculated to achieve the result intended by the legislature.
Courts are reluctant to place limits on what may be done in the interest of the health of a community, so long as unreasonable methods are not employed, nor the natural and constitutional rights of citizens invaded. In the context of local health regulations, judicial review of health will usually involve a three-prong inquiry: (1) whether the methods provided in the regulation are reasonably related to the public policy goal of protecting the health of the community; (2) whether the regulatory measures are drafted or applied in a manner which is arbitrary or unreasonable; and (3) whether the regulations impermissibly invade the constitutional rights of citizens. Hayes v. Town of Cedar Grove, 126 W.Va. 828, 839, 30 S.E.2d 726, 732 (1944).
So, while local health departments may adopt regulations, because those regulations are inferior in status and subordinate to legislative acts, they cannot contradict state statutes or properly promulgated state regulations. However, the WVMCA does not contain, either express or implied, any indication that the legislature intended to preempt local health departments from further regulations regarding the manner in which it approves dispensary locations. Further, the OMC has not promulgated any regulations related to the local health department approval of dispensary locations.
Because the WVMCA fails to provide express standards for local boards of health to employ when making a decision to approve a dispensary location, most local health departments have simply decided to grant a wholesale approval of all locations, thus leaving it up to the OMC to decide whether an applicant is permitted to open up shop in the health department’s jurisdiction. However, local health departments could consider being more proactive by establishing standards governing its approval of dispensary locations so long as the regulations do not contradict state law or OMC’s legislative rules, and are reasonably related to the public policy goal of protecting the health of the community; not arbitrary or unreasonable; and do not impermissibly invade the constitutional rights of citizens.
Brian J. Skinner is the former General Counsel to the West Virginia Bureau for Public Health and assisted in establishing the Office of Medical Cannabis upon enactment of the West Virginia Medical Cannabis Act including drafting procedures and legislative rules.
This article contains general legal information and does not contain legal advice. H2C Public Policy Strategists, LLC is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.