Pubdate: Thu, 20 Aug 2015
Source: Alaska Dispatch News (AK)
Column: Highly Informed
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

WILL PEOPLE WITH CRIMINAL RECORDS BE ALLOWED TO PARTICIPATE IN 
ALASKA'S CANNABIS INDUSTRY?

As Alaska's Marijuana Control Board continues accepting written 
comments on the legal system that is taking shape, Tristan wonders, 
"Will people with criminal records be allowed to participate in the 
cannabis industry?"

So far, the answer is yes, but that depends on what we mean by 
"participate," and what kind of criminal record we're talking about.

With the passage of House Bill 123 last session, which among other 
things created the MCB, the Alaska Legislature added a new paragraph 
to the initiative-created Alaska Statute 17.38.100, one that 
restricts people convicted of a felony within the past five years 
from being involved in a registered cannabis-related business.

The new bit, AS 17.38.100(i), reads thusly:

A marijuana establishment may not be registered under this chapter if 
a person who is an owner, officer, or agent of the marijuana 
establishment has been convicted of a felony and either (1) less than 
five years have elapsed from the time of the person's conviction; or 
(2) the person is currently on probation or parole for that felony.

That statute is referred to in proposed regulations on license 
restrictions, 3 AAC 306.010(d)1, as grounds for not issuing a 
cannabis license, both to individuals and partnerships that include 
someone who doesn't meet that test. That proposed regulation also 
clarifies that a felony conviction counts even if the sentence was suspended.

That statute does not mention "employees," as do several places in 
the rest of proposed regulations, so it appears that the term "agent" 
does not necessarily mean all classes of employees. After all, there 
are plenty of jobs in the industry that don't fit the classic 
definition of an agent. Bud trimmers and edibles makers, for example.

I've asked ABC Board Director Cynthia Franklin for additional 
clarification on whether the no-felons rule would apply to employees 
as well as owners, officers and agents, and I will update this space 
if she makes further comment. She did note in an email that the 
original amendment to HB 123 that created the above statute included 
the word "employees," but the version that was passed cut it. That 
indicates to me that legislative intent was to not include all 
employees in the rules against felons, just folks with a formal legal 
connection to a licensee.

Paragraph 2 of that proposed regulation on issuing licenses would 
deny a marijuana establishment license application from a person "who 
operated a marijuana delivery service, a marijuana club, or a 
marijuana establishment illegally without a license within the two 
years before the effective date of this section, or has been found 
guilty of a criminal act or violation of AS 04, or a violation of AS 
17.38, unless the board finds that person has diligently worked with 
the board to comply with all current laws relating to marijuana."

That provision seems tailored to exclude owners of cannabis-related 
businesses that have defied warnings to shut down operations started 
prior to established regulations. At this writing, no criminal 
charges have been filed against owners or operators who have defied 
the warnings, but the way the proposed regulation is written above, 
they could be excluded even without a conviction.

As for criminal convictions affecting a cannabis license held after 
the system is in place, regulations proposed in 3 AAC 306.810 hold 
that "the board will suspend or revoke a marijuana establishment 
license issued under this chapter when any licensee is convicted of a 
felony, or the board becomes aware that a licensee did not a disclose 
a previous felony conviction."

And because I know people will wonder, no, restrictions like those 
don't exist in AS 04.11.320, the section of state law governing the 
denial of new liquor licenses or permits, or the section governing 
the renewal, suspension or revocation of those already held. 
Alcoholic Beverage Control Board administrative codes (Title 3, 
chapter 304) don't mention recent felonies as grounds for denying 
applications for alcohol licenses either.

Proposed regulations for cannabis and those existing for alcohol are 
similar, however, in that violation by an owner, operator, agent or 
employee of the codes governing the whole range of sales production 
or distribution is grounds for denial, suspension or revocation of a 
cannabis license or permit.

There's also a provision in proposed code 3 AAC 306.030(b)A and B 
that would require notice in a license renewal application of "any 
criminal charge" in the previous two calendar years and of "any civil 
violation of AS 04, AS 17.38, or this chapter" in the previous two 
calendar years.

Proposed cannabis regs and existing ones for alcohol are also similar 
regarding requirements of employees. The alcohol industry requires 
servers and other kinds of workers to be certified in the law and 
many aspects of serving a regulated substance. The same will hold for 
people who work with cannabis if regulations are approved as 
currently proposed.

A proposed provision would direct the creation of a marijuana handler 
permit course, which looks like it'll be the cannabis industry 
equivalent of an alcohol-related TAP certification. The proposal 
holds that passing the test will require knowledge of cannabis 
statutes, regulations and various other things related to 
consumption. That section of proposed regulations doesn't 
specifically bar people with criminal records from being employees of 
a licensed cannabis establishment.

So, summing up, people with a few misdemeanors are fine if they want 
to work in any role for the cannabis industry once it gets off the 
ground. But a felony less than 5 years ago or current parole or 
probation, and they're out of luck as an owner, operator or agent. 
Pending further clarification, it appears that some level of 
employment will be permitted no matter what someone's record is.
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MAP posted-by: Jay Bergstrom