THE OKLAHOMA BAR JOURNAL 28 | APRIL 2025 licensees to pay for and use a “seed to sale” program called “Metrc.”29 Yet, OMMA can, and has, prohibited licensees from accessing their own business records. This is particularly problematic when OMMA accuses the licensee of failing to comply with Metrc records. Licensees are put in a difficult position by bearing the burden of disproving OMMA’s allegations but not having the evidence or basic information needed to protect their constitutionally protected property interests. To make matters worse, the administrative hearing officers conducting OMMA hearings have no authority to compel OMMA to produce exculpatory evidence, leaving a licensee powerless to defend itself in the administrative hearing. The only real recourse for licensees to protect themselves against arbitrary and capricious actions is to seek declaratory relief from civil court. Again, however, this can be time-consuming and expensive, especially when the licensee has been temporarily put out of business. Summary Order of Destruction In July 2024, OMMA promulgated a new rule, Section 442:1-1-12, “Summary order for destruction,” which allows OMMA to destroy any product if it asserts “the public health, safety, or welfare requires emergency action.” Like with the summary license suspension rule discussed earlier, this rule places the burden of proof on the licensee to show that the licensee’s private property should not be destroyed. Not only does this raise due process concerns, but this rule also appears to go well beyond the scope of the limited embargo authority granted to OMMA by the Legislature.30 The Legislature gave OMMA the authority to destroy product through one method only: an action in district court.31 Presumably, the Legislature understood the severity of government agents destroying private property and, thus, required a court’s approval. After all, civil court judges are entrusted to safeguard due process guarantees. The Legislature gave licensees the protection of the civil court before an administrative agency could destroy a private citizen’s agricultural products. However, OMMA created its own “summary order of destruction” rule outside the existing legislative framework of 63 O.S. §427.24(B). The Oklahoma Supreme Court has repeatedly held that administrative agencies may not make law or go beyond legislative authority.32 Therefore, OMMA’s “summary order for destruction” may exceed, if not contradict, its statutory authority, in addition to raising due process concerns. Yet, a licensee faced with a summary destruction order may have few options other than to seek a writ of prohibition or other extraordinary relief from a civil court in order to prevent summary destruction of its property – an expensive and time-consuming endeavor without the guarantee of success. CONCLUSION While OMMA has an extraordinarily important and difficult job of regulating the cannabis industry, accountability to the people of Oklahoma should be the foundation of its activities, especially when constitutionally protected rights are at stake. If lawyers were subject to rules like this, there would likely be outrage. OMMA may be dealing with a seedy industry (pun intended), but due process guarantees apply equally to cannabis licensees – Oklahomans who entered this business as a means of livelihood and with dreams of becoming successful entrepreneurs. The Oklahoma voters overwhelmingly approved the legalization of medical marijuana in 2018. Accordingly, the rights of cannabis business license holders are constitutionally protected to the same extent as any other protected interest. Surely, OMMA can do both – effectively enforce and regulate the industry while doing so in a manner consistent with fundamental due process rights. It must do both. ABOUT THE AUTHOR Nada N. Higuera is a solo practitioner at Higuera Law PLLC. She practiced constitutional law on the state and federal levels in California for eight years before moving to Oklahoma in 2022. She can be contacted at nada@higuera-law.com. ENDNOTES 1. “Licensing and Tax Data, OMMA Dashboard, Licensing Reports and Tax Revenue Reports,” Oklahoma Medical Marijuana Authority, https://bit.ly/4h7lmGo (last visited Dec. 19, 2024). 2. “2024 Marijuana Industry Statistics & Data Insights,” Flowhub, https://bit.ly/3QK5QW0 (last visited Dec. 19, 2024). 3. OMMA was previously under the Oklahoma State Department of Health until it became a stand-alone agency on Oct. 31, 2022. 4. Due process includes both “procedural due process” (the required legal steps) and “substantive due process” (protecting fundamental rights from government overreach). See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1492, 84 L. Ed. 2d 494 (1985) (holding that “minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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