Pubdate: Thu, 21 May 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

HOW CAN ALASKA FILL A CONTROL BOARD SEAT FOR CANNABIS INDUSTRY IF 
THERE ISN'T ONE YET?

This week, David asks a two-part question:

I have read the initiative along with the newly passed H.B. 123. I 
have gone over again and again, and I have yet to see any writing 
prohibiting a marijuana business from starting before the state 
starts issuing cannabis business licenses. If anything, I see that it 
says that a person can, so long as they are 21 or older, act as a 
lawful business. (Also) H.B. 123 states that one seat on the board is 
reserved for "one person actively engaged in the marijuana industry," 
and "marijuana industry" means "a business or profession related to 
marijuana in which the person is lawfully engaged and that is in 
compliance with the provisions of state law, including this chapter 
and regulations adopted under this chapter." How can someone qualify 
for this seat if what (authorities) talk about is true and no 
marijuana business can be lawfully engaged at this moment?

Let's go in order, shall we? The writing that authorities are using 
to base their repeated statements that marijuana-relate businesses 
are operating outside the law is in Sec. 17.38.070, which took effect 
as part of the voter-approved Ballot Measure 2, and which David 
included with his question:

(a) Notwithstanding any other provision of law, the following acts, 
when performed by a retail marijuana store with a current, valid 
registration, or a person 21 years of age or older who is acting in 
his or her capacity as an owner, employee or agent of a retail 
marijuana store, are lawful and shall not be an offense under Alaska 
law or be a basis for seizure or forfeiture of assets under Alaska law:

After that passage comes a list of things that are lawful for someone 
to do if they meet that paragraph's standards. David correctly notes 
that the language says that people 21 and older who own or are 
working for or on behalf of a retail business are lawful when they're 
doing certain related activities for a business like that. But the 
key clause comes before the one about owners and employees, and it 
appears to eliminate wiggle room.

That clause says that the list of acts is lawful for a business to 
perform "when performed by a retail marijuana store with a current, 
valid registration." And if there's no way to get a valid 
registration or keep it current, as is true currently, then, well, 
that business would not be able to satisfy that clause and would be, 
as authorities keep contending, operating in an unlawful manner. But 
that should not be misunderstood as a comment on the chances any 
early-operating business would be charged, or what chances might be 
in court to defend any charges that may or may not come their way. 
Those are separate, and much trickier questions.

It's also worth noting that the Legislature didn't remove cannabis 
from the controlled substances list, and didn't update any of the 
related criminal statutes in light of legalization. Cannabis is 
essentially living a dual life when it comes to what's on the books. 
A bill that would've done something to change that status, SB30, went 
through a great deal of back and forth, eventually passed the Senate 
and ended the session on its first referral to the House Judiciary 
Committee, where it will await the beginning of next session.

Contradiction on requirements for board members?

As David asks in part two, assuming authorities are correct and none 
of the cannabis businesses operating currently are doing so lawfully, 
it does seem to pose a contradiction when trying to fill the seat on 
the five-member Marijuana Control board set aside solely for a member 
of the cannabis industry. The other seats provide seats for people 
with connection to public safety, public health, one for a rural 
resident, and one for a member of the general public or the cannabis 
industry. The seeming contradiction comes in for David because 
authorities do keep warning that cannabis businesses of some kinds 
(from co-operative growing and delivery and testing) are operating 
over the line, and some of those businesses are even opting to shut 
down or change business models.

Alcoholic Beverage Control Board Director Cynthia Franklin, the 
official tasked with leading the effort to create regulations, said 
in a phone interview that that very contradiction was identified and 
discussed in the Legislature last session, and that it resulted in 
some new language in H.B. 123 intended to resolve the contradiction. 
The language comes in Section 10 of the act:

(b) Notwithstanding AS 17.38.080(b)(4) and (5), the governor, in 
making the initial appointments to the Marijuana Control Board, shall 
appoint two persons with experience in the marijuana industry 
obtained through lawful participation in the marijuana industry or 
participation in an academic or advocacy role relating to the 
marijuana industry.

The "Notwithstanding 17.38.080 (b) (4) and (5)" part just refers to 
the section that provides for the two seats, one that must be filled 
by someone with industry experience, and one that can either be a 
member of the public or someone with industry experience.

Franklin said that added language, limited to the initial 
appointments, will allow a member to be named to a seat reserved for 
industry who has either industry experience from another state where 
cannabis is legalized, or who has experience in a different regulated 
industry and a lot of education about legal marijuana, either through 
seminars and workshops in Alaska or Outside.

It is significant, however, that Franklin's remarks did not include a 
mention of experience with cannabis industry activity that has been 
deemed unlawful, and significant that the language quoted above 
specifically requires the experience to be through "lawful participation."

Public comment opens on cannabis regulations

Highly Informed readers may also be interested to know that the state 
Alcoholic Beverage Control Board has given public notice of the first 
wave of newly proposed regulations regarding cannabis, focused this 
time on the local-option laws and various definitions. The public 
comment period is open until June 20, 2015. Proposed regulations and 
complete guidelines for sending in written or electronic comments and 
questions are available online, as is an Alaska Dispatch News report 
of the notice.

Temporary hiatus, don't freak out

Also, just so everyone knows what's going on, after this installment, 
Highly Informed will be going on hold until the second week of June, 
no more than three weeks total. Nothing sinister's afoot, just a 
colleague's vacation that's been in the works for some time and that 
we couldn't cover enough to keep my time free for this column. We 
regret the gap, but it can't be helped, and Highly Informed will 
definitely be back. Thank you for your patience and continued interest.
- ---
MAP posted-by: Jay Bergstrom