Pubdate: Thu, 02 Apr 2015
Source: Alaska Dispatch News (AK)
Copyright: 2015 Alaska Dispatch Publishing
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Scott Woodham

WOULD A POT-GROWING COACHING BUSINESS BE AGAINST ALASKA LAW?

When the initiative to legalize, tax and regulate marijuana in Alaska 
took effect Feb. 24, personal home gardens of six plants total, up to 
three flowering at a time, became expressly permitted for any Alaskan 
21 years or older. But what if someone has no idea where to begin?

There are books and magazines. Cultivation message boards and web 
forums seem to multiply by the day, but researching all of that and 
turning it into action takes time. Not to mention that talk of light 
frequencies, growing media, "nutes," and techniques like ScrOG, FIM, 
and LST might overwhelm beginners.

Brett LeMay wonders if that might present an opportunity for someone 
with an entrepreneurial spirit and Alaskan desire to "take tomorrow 
and dream." He asks Highly Informed: "Do you foresee any problems 
with setting up a personal-growing coach business? Not everyone has a 
green thumb. Of course, I could not provide plants or seeds, just set 
up and maintain their personal use garden."

Before we get into the answer, it's important to note right up front 
that anyone thinking of starting a business should seek professional 
legal advice to ensure that everything goes smoothly. That's just 
good sense whether cannabis is involved or not. Starting a business 
involves official paperwork, state licensing and so on, and an 
attorney can be a big help to start off on the right foot.

It's also important to note that the Alaska Legislature is currently 
considering a variety of legislation pertaining to cannabis, and 
there are a little more than two weeks left in the session. Anything 
said here could change depending on the outcome of any of that 
legislation. The answer here doesn't seem likely to change much, but 
because there's so much activity right now, the legal landscape is 
essentially unsettled.

Pot me in, coach. Center field?

Setting aside the question for a moment about foreseeable problems, 
let's look at a fundamental question first. Would a home-grow 
cannabis coaching business be allowed under the state laws as they 
stand currently?

It appears that yes, if no other statutes are violated in the process 
of advising someone, a business to coach compliant home growers is 
allowed under the current statutes. Statutes also allow individual 
Alaskans over 21 to give each other up to six immature cannabis 
plants, but sales are still off limits at this time. There is nothing 
in current statutes that expressly prohibits or addresses a coaching 
business. That means two things right off the bat: One, that kind of 
business is just not mentioned. Someone in an official capacity might 
decide statutes need to mention it. And two, if such coaching is done 
with gardens that comply with state law, it's currently not prohibited.

Complying with the law right now for home gardens means complying 
with AS 17.38.020, the laws created by Ballot Measure 2 that concern 
personal use of cannabis, including cultivating it at home for 
recreational purposes.

That statute currently limits home gardens to six plants, with no 
more than three flowering at a time, and restricts them to Alaskans 
older than 21. It also specifically permits "assisting" people of 
legal age with certain acts, including growing at home:

Notwithstanding any other provision of law, except as otherwise 
provided in this chapter, the following acts, by persons 21 years of 
age or older, are lawful and shall not be a criminal or civil offense 
under Alaska law or the law of any political subdivision of Alaska or 
be a basis for seizure or forfeiture of assets under Alaska law:

(a) Possessing, using, displaying, purchasing, or transporting 
marijuana accessories or one ounce or less of marijuana; (b) 
Possessing, growing, processing, or transporting no more than six 
marijuana plants, with three or fewer being mature, flowering plants, 
and possession of the marijuana produced by the plants on the 
premises where the plants were grown; (c) Transferring one ounce or 
less of marijuana and up to six immature marijuana plants to a person 
who is 21 years of age or older without remuneration; (d) Consumption 
of marijuana, except that nothing in this chapter shall permit the 
consumption of marijuana in public; and (e) Assisting another person 
who is 21 years of age or older in any of the acts described in 
paragraphs (a) through (d) of this section.

Uncertainty and risk

Here's where things get tricky, and where unforeseen problems might 
arise for a business centered on grow-coaching. In any industry, 
changes in law or regulation can significantly change the landscape. 
And legal uncertainty is the biggest foreseeable complication for the 
business idea you propose. Such uncertainty adds risk to starting up, 
but that's for an aspiring grow coach and his or her lawyer to discuss.

Some changes to that statute quoted above are being considered in the 
Alaska Legislature right now, largely to clarify terms and respond to 
stakeholder concerns. They involve things like per-household plant 
limits, defining "public" use and others. The two main legislative 
bills dealing with cannabis right now are SB 30, freshly passed by 
the Senate and moved on to the House, and HB 75, which is still 
making its way through the House. Both bills should be considered in flux.

Cynthia Franklin, director of the Alcoholic Beverage Control Board, 
the agency currently charged with creating cannabis regulations to 
implement, said that unless something changes with the legislation, 
the business described doesn't currently seem off-limits to her as 
long as it doesn't run afoul of other parts of the law. Examples of 
types of advice that would cross the line are advising a commercial 
grow (none of which are permitted yet) or selling clones or plants, 
or helping someone with a grow that's larger than allowed in statute.

Franklin wrote in an email, "When I read AS 17.38.020 in a vacuum, 
without HB 75, I would not interpret the conduct you describe as 
violating any prohibition. In other words, unless the legislature 
amends 17.38.020 to define or restrict the term 'assist' to the 
contrary, I believe the initiative language would allow this type of advice."

The phrase "in a vacuum" is a significant qualification. Law and 
policy don't happen in a vacuum, and regulators can only deal with 
what they have in front of them. Franklin said that the only thing 
that could possibly affect her interpretation is HB 75. That bill is 
somewhat narrower in scope than SB30, and its most recent version 
proposes including language that defines "assist" and adds "aiding or 
supporting," plus a list of situations where assisting is not 
illegal. It doesn't appear to restrict a business like the one Brett 
is asking about:

assisting, aiding, or supporting another person who is 21 years of 
age or older in any of the acts described in (1) - (4) of this 
section; assisting under this paragraph does not include (A) using, 
displaying, purchasing, or transporting marijuana in excess of the 
amount allowed in this section; (B) possessing, growing, processing, 
or transporting marijuana plants in excess of the amount allowed in 
this section; (C) growing marijuana plants for another person in a 
place other than that other person's dwelling."

The version of that proposed language in SB 30 is nearly identical, 
but it doesn't add "aiding and supporting" or include that last item 
there, "C." Reconciling the two bills is an ongoing matter, which 
makes it impossible to say for certain what will result in the end. 
House committee staff are not offering any guesses about where things 
will end up, but so far as I've been told, no one has heard of plans 
to restrict "assisting" in a way that would bar a coaching business 
for legally compliant home gardens. If that changes, I'll update this 
column. http://www.legis.state.ak.us/basis/get_fulltext.asp?session)&bill=SB30

HB 75 is sponsored by the House Community and Regional Affairs 
Committee, chaired by Rep. Peggy Tilton, R-District 12. She wrote in 
an email that her own convictions against the initiative to legalize, 
tax and regulate don't matter when it comes to the work in creating 
HB75, "I voted against it, as did a majority of my district's voters. 
However, the voters passed it and it is my obligation as a state 
lawmaker to respect the will of the voters even if I disagree with it."

"As the House Community and Regional Affairs Committee has worked 
through the process with HB 75, we kept two questions in the 
forefront when adopting the various provisions: 'Is it consistent 
with the initiative?' and 'Does it closely follow how we regulate 
alcohol?' " she said. "Rather than telling municipalities what they 
were going to do, we asked them what they needed us to do."

Rep. Tilton said, "Our municipalities made it very clear that they 
needed us to act in order for them to write their ordinances 
correctly, in the interests of public health, public safety and 
protection of commercial trade. HB 75 gives them the tools to do that 
while remaining consistent with the intent of the initiative."

Since there's no proposed restriction on potential grow-coaching in 
any current version of legislation, either from the House or Senate, 
apparently grow-coaching was an issue that no stakeholders, whether 
municipalities or not, brought up as a concern. That leads me to 
conclude that prohibitions against such a businesses are unlikely. 
But anything could still happen with a couple of weeks left in the session.

Other potential issues?

One other potential issue for Bret to consider is whether any special 
licensing or permits aside from an Alaska business license may be 
required. Currently there are no such requirements in statute for a 
grow coach, and Heath Hilyard, Tilton's chief of staff and committee 
aide for House Community and Regional Affairs, said that his office 
has no plans to include such a licensing provision in HB 75.

"That really wouldn't be the right vehicle for something like that," 
he said, adding that they intend to defer on detailed rulemaking to 
regulators with the ABC Board or, if created, a Marijuana Control Board.

Skies look clear right now on that front. According to ABC director 
Franklin, "We do not anticipate growing 'coaches' needing licenses or 
issuing any license like that."

Depending on the type of advice or service, however, other licenses may apply.

The state of Alaska requires licenses for a host of professions 
already, in addition to an Alaska business license. Handymen, 
contractors, electricians, engineers and others in the building 
trades -- to mention a category that seems like it could apply here 
- -- are "regulated professions," and the state requires additional 
licensing for them.

If someone's idea of grow-coaching involves building partitions or 
rewiring part of a house, for example, it seems that extra licensing 
would apply. If it's just talking about flowers and troubleshooting 
common problems, it seems not. Consultation with an attorney and 
constant vigilance about laws and regulations would seem essential to 
determine what potential problems, if any, apply to a particular 
cannabis grow-coaching business model. But as things stand now, 
recognizing that laws and rules are taking shape, it seems there are 
few legal problems to foresee when it comes to the coaching business 
Brett describes. But because the laws and rules are still essentially 
unsettled, that means there could be additional business risks worth 
considering.
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MAP posted-by: Jay Bergstrom