Municipalities may enact ordinances on issues that address the health and safety of their public so long as 1) they are not preempted by the legislature from addressing the topic or 2) their ordinances are not inconsistent with state statutes. SQ 788 may have established a limited right to consume marijuana by license holders, but it did not address whether marijuana could be smoked in general or specifically in public. Does this mean that municipalities are free to regulate marijuana consumption in any manner they please?
Department of Health: Smoking Marijuana is the Same as Smoking Tobacco
The Department of Health's emergency rules include rule OAC 310:681-2-11(a) which states that the smoking and vaping of marijuana is governed by the Oklahoma "Smoking in Public Places and Indoor Workplaces Act" ("the Act"). See 63 O.S. §1-1521 et seq. If this rule is upheld, it will mean 1) that marijuana could only be smoked in public where tobacco could be smoked and 2) that the smoking of marijuana in public places where tobacco cannot be smoked would be both illegal and not subject to a criminal charge. Most importantly, if the rule is upheld it will mean that municipalities are powerless to criminalize the smoking of marijuana in public.
The reason you would be powerless to act is because the Act contains a broad preemption clause which prohibits you from enacting any ordinances that are broader than the current State statutes. See 63 O.S. §1-1527. The criminal statute that was enacted alongside the Act only applies to the smoking of tobacco, not marijuana. See 21 O.S. §1247. The Department's position would effectively add marijuana to the Act (which does not expressly limit the term smoking to tobacco) while leaving the criminal statute (which is limited to smoking tobacco) unchanged.
The Department's Position is Inconsistent with State Law
In OMAG's opinion, rule OAC 310:681-2-11(a) would not survive a legal challenge. The Department can only enact rules that are consistent with the statutes. The Act, as currently constituted, does not address marijuana. For example, there are no references to "marijuana" in the Act, but 8 references to the word "tobacco". Those references make clear that the term "smoking" is a reference to the smoking of tobacco.[i] The Department appears to agree with this interpretation since, as the agency empowered to adopt rules implementing the Act, it has adopted a definition of a key term:
"Smoke" means smoke from combustion of tobacco products, including secondhand smoke. OAC 310:355-1-6.
To the extent there is ambiguity in the words the legislature used in the Act, the Courts will seek to determine what the legislature's intent was in adopting the Act. Given that the smoking of marijuana anywhere was illegal when the Act was adopted (and each time it has been amended), it is not difficult to conclude that the legislature was intending to regulate the smoking of the only substance that could legally be smoked when the Act was enacted - tobacco. This intent manifests itself in the corresponding criminal statute the legislature adopted, which is expressly limited to the "possession of lighted tobacco." 21 O.S. §1247. Courts generally reject hyper-technical interpretations of statutes that lead to absurd results[ii] such as would be required here - i.e. a conclusion that the legislature intended to make it unlawful to smoke tobacco and marijuana in public but only intended tobacco smokers to face criminal consequences.
OMAG believes its members have greater freedom to criminalize the smoking of marijuana in public through ordinances. This could be as simple as crafting a narrow exception to your existing marijuana ordinances that only exempt the smoking of marijuana on private property from the current, general prohibitions on the use of marijuana. In doing so, please note that a Court very well could disagree with OMAG's interpretation. More importantly, it is likely that a challenge[iii] to a municipal ordinance would come in the form of a legal action that is not subject to defense under OMAG's General Liability coverage. Most importantly, it is highly likely that the legislature will address this issue next session. Not only will you need to ensure that your ordinances are consisting with whatever the legislature enacts, but you should also be mindful that the Courts have considered subsequent legislative actions when interpreting previously versions of statutes[iv].
The best advice OMAG can give is: if you amend your smoking in public ordinances to cover both tobacco and marijuana, you are not likely to face a viable challenge to such an amendment. Either the amendment would be consistent with existing statutes as they have been interpreted by the Department, or your amendment would address a topic not addressed in State law and, thus, would not be inconsistent with State law. Should you seek to adopt a more expansive prohibition on the smoking of marijuana in public, you do so knowing both that the law appears to be on your side and also that the law is not 100% clear on that point. It is possible that such an expansive prohibition could face a costly legal challenge. Whether your municipality is comfortable taking that risk is a decision that must be made by each OMAG member.
[i] See e.g. 63 O.S. §§1-1523(C) ("Nothing in this section shall be construed to prohibit educational facilities from having more restrictive policies regarding smoking and the use of other tobacco products in the buildings or on the grounds of the facility.") and 1-1525(1) ("The ... local governmental agency ... shall, at a minimum, do the following in order to prevent smoking in public places: 1. Post conspicuous signs at entrances to and in prominent locations within places where smoking is prohibited which state that smoking is prohibited or that the indoor environment is free of tobacco smoke.") (emphasis added)
[ii] Smith v. City of Stillwater, 2014 OK 42, ¶30, 328 P.3d 1192 ("[G]enerally, statutes are to be interpreted in accordance with their plain, ordinary meaning according to the import of the language used. Nevertheless, where the literal meaning of a statute would ... lead to absurd consequences the Legislature could not have contemplated, we are bound to presume such consequences were not intended, and must adopt a construction which will promote the ends of justice and avoid absurdity.")
[iii] The most likely challenge would be an appeal from a conviction in Municipal Court. Such an appeal is not a covered claim since it is a criminal, not civil action. A criminal conviction in municipal court must be challenged in a criminal appeal and cannot be collaterally attacked in a civil action seeking damages. See McDowell v. Austin, 1985 OK 33, 699 P.2d 1100 and Oklahoma State Senate ex rel. Roberts v. Hetherington, 1994 OK 16, 868 P.2d 708
[iv] See e.g. Okla Assoc. of Broadcasters, Inc. v. City of Norman, 2016 OK 119, ¶¶28-30, 390 P.3d 689 (Court bolstered its interpretation of the Open Records Act's law enforcement section by noting that the legislature amended the section after the litigation was filed in a way that conformed to the Court's interpretation).
DISCLAIMER: OMAG has reviewed SQ 788, existing OK statutes and case law as well as statutes and case law from other states that have legalized marijuana to some degree. OMAG cannot predict how our Legislature or Courts will respond to SQ 788 and can only offer our best advice on the subject. OMAG members seeking legal advice on SQ 788 should be aware that there may not be clear-cut answers on some of the issues for some time. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts.