Legislature(2015 - 2016)CAPITOL 120
04/06/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB123 | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 154 | TELECONFERENCED | |
| += | HB 147 | TELECONFERENCED | |
| + | SB 30 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 123 | TELECONFERENCED | |
HB 123-ESTABLISH MARIJUANA CONTROL BOARD
1:34:51 PM
CHAIR LEDOUX announced that the first order of business would be
HOUSE BILL NO. 123, "An Act establishing the Marijuana Control
Board; relating to the powers and duties of the Marijuana
Control Board; relating to the appointment, removal, and duties
of the director of the Marijuana Control Board; relating to the
Alcoholic Beverage Control Board; and providing for an effective
date."
1:35:08 PM
REPRESENTATIVE KELLER moved to adopt CSHB 123, version 29-
GH1110\N, Martin, 4/3/15 as the working document. There being
no objection, version "N" was before the committee.
1:35:36 PM
MICAELA FOWLER, Legislative Liaison, Office of the Commissioner,
Department of Commerce, Community, and Economic Development
(DCCED), said that version N represents several changes from the
prior version. She explained that Sec. 3 has been amended to
clarify and put into statute the intent that the Alcohol
Beverage Control Board (ABC Board) and the Marijuana Control
Board would meet right after each other in sharing staff. Sec.
7, is a new section which places the Marijuana Control Board on
a list of entities whose hearings are conducted by the Office of
Administrative Hearings. Sec. 9, is the transition language of
which is the most substantive change in this version in that it
changes what is considered experience for members of the
marijuana industry during the initial formation of the board.
Previously, the bill required that two members of the alcohol
industry serve the initial board term. She explained that in
version N, it is two members who have 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.
1:38:22 PM
CYNTHIA FRANKLIN, Director, Alcohol Beverage Control Board,
Department of Commerce, Community, and Economic Development,
said the ABC Board supports the version going forward as Ms.
Fowler indicated, and she does not have anything to add to prior
testimony.
1:39:25 PM
RACHELLE YEUNG, Legislative Analyst, Marijuana Policy Project,
said she is speaking on behalf of the Marijuana Policy Project
and the Campaign to Regulate Marijuana like Alcohol. She opined
that the current committee substitute is a much better version
than previously and offered a suggestion regarding the
composition of the potential board members. She said the
concern is to ensure that people with the most relevant
expertise not be excluded, and that members of the board
implementing this law actually do support the law passed by the
voters. She pointed out that within the version it appears that
persons with only one year of experience in either of those
professions would qualify, while a person retired from a decades
long career in either of those fields, or has moved their career
to a private university or other non-profit public sector may
not.
MS. YEUNG responded to Representative Gruenberg that she is
referring to Sec. 2, [AS 17.38.080] page 2, lines 15-16, which
read:
(1) one person from the public safety sector;
(2) one person from the public health sector;
MS. YEUNG explained that it initially lays out the composition
of the board, one person from the public safety sector, and one
person from the public health sector. Her recommendation is
that those two positions allow someone who is a former public
health or public safety official to apply.
1:43:19 PM
REPRESENTATIVE GRUENBERG referred to [Sec. 9], page 7, lines 2-
5, which read:
(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.
REPRESENTATIVE GRUENBERG offered that the above language would
clarify the fact that the person could be in the industry now or
have experience in it. He said that the intent is to allow
anyone with experience.
1:44:11 PM
MS. YEUNG pointed to Sec. 2, [AS 17.38.080] page 3, lines 14-20,
which read:
(4) "public health sector" means a state,
federal, or local entity that works to ensure the
health and safety of persons and communities through
education, policymaking, treatment and prevention of
injury and disease, and promotion of wellness;
(5) "public safety sector" means a state,
federal, or local law enforcement authority that
provides for the welfare and protection of the general
public through the enforcement of applicable laws;
MS. YEUNG recommended that the board members not be selected
from a professional involved in a federal law enforcement
capacity or a federal public safety capacity given that all of
the conduct the board will write laws for are illegal under
federal law. She recommended that all board members be
committed to safely implementing the initiative given that the
board will be responsible for implementing this law. She
expressed that it is important all members of the board actually
support the initiative or are committed to regulating and taxing
marijuana as the voters intended. She submitted that allowing
the possible inclusion of hostile board members who could favor
unlawful delays which would likely lead to litigation and
reduced faith in the government.
1:47:14 PM
REPRESENTATIVE GRUENBERG referred to her last comment and
surmised that she prefers a provision in the law that these
board members support the law or support the concept of
legalizing marijuana.
MS. YEUNG clarified that she meant that the person appointed to
serve on the board supports the implementation of the law even
if they do not support the legalization themselves.
1:48:00 PM
REPRESENTATIVE MILLETT asked whether Ms. Yeung would also like
federal taken out of the definition for public health sector.
MS. YEUNG answered "That is correct." She then added to her
response to Representative Gruenberg that if the bill were not
to explicitly state that persons serving on this board support
the initiative, that they be required to state their support in
response to a question on the application form.
1:49:11 PM
CHAIR LEDOUX related that she understands Ms. Yeung
recommendation, but on the other hand it is as though Ms. Yeung
is requiring a loyal oath. She opined that they do not ask
people, or put it into statute, that someone serving on a board
must be in favor of something. She described [the action] as
implied that a person does their best to fulfill the duties of
the board.
1:49:47 PM
REPRESENTATIVE MILLETT expressed that she could not perceive
someone applying for a board position and vehemently oppose the
position of the board. She surmised that a person wishes to
serve on a board because they desire to see that board
implemented in a correct manner.
CHAIR LEDOUX pointed out that the board is subject to
legislative approval so someone along the line will ask the
question or it would come out if someone was attempting to join
the board because their intention was to railroad it.
1:50:44 PM
REPRESENTATIVE GRUENBERG offered that Chair LeDoux's comments
might also go to the issue of deleting the word "federal"
because a federal person would not be appointed if they were
basically opposed. He said he hesitates to delete federal
because SB 30 will be on the books for a while and the federal
law may be modified.
1:51:31 PM
BRUCE SCHULTE, Coalition for Responsible Cannabis Legislation,
referred to [Sec. 3, AS 17.38.084] page 4, lines 15-16, which
read:
(a) The board shall control the cultivation,
manufacture, possession, and sale of marijuana in the
state.
MR. SCHULTE remarked that the word "control" could be more
appropriately replaced with the word "regulate." He further
remarked that the word "possession" might be stricken from the
sentence entirely because the board is actually charged with the
regulation of cultivation, manufacture, and sale of marijuana
and not personal possession. He stated that personal possession
is dealt with under statute with the passage of the initiative.
1:54:19 PM
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify.
1:54:36 PM
REPRESENTATIVE GRUENBERG referred to [Sec. 3, AS 17.38.084],
page 4, lines 18-19, which read:
(b) The board shall
(1) propose and adopt regulations;
REPRESENTATIVE GRUENBERG asked whether the adoption of
regulations would be under the Administrative Procedures Act.
MS. FOWLER replied "Yes."
REPRESENTATIVE GRUENBERG asked where in the bill it is
specifically listed.
1:55:58 PM
HARRIET MILKS, Assistant Attorney General, Commercial and Fair
Business Section, Department of Law (DOL), opined that the
language is in the initiative and [Sec. 10], on page 7, lines
12-15, which read:
(b) The Marijuana Control Board, established
under AS 17.38.080, as repealed and reenacted by sec.
2 of this Act, may adopt regulations necessary to
implement the changes made by this Act. The
regulations take effect under AS 44.62 (Administrative
Procedures Act), but not before the effective date of
this Act.
1:56:35 PM
REPRESENTATIVE GRUENBERG commented that if the board is going to
operate under the Administrative Procedures Act it should not
just be in a transitional section as it has to be put in the
body of the bill in permanent law.
MS. FOWLER noted that is a legitimate concern and could not see
any reason it could not happen.
1:57:03 PM
MS. FRANKLIN interjected that AS 17.38.090(a)(1) within the
voter's initiative provides that all of the regulations are
subject to the requirements of the Administrative Procedures
Act.
1:57:47 PM
REPRESENTATIVE MILLETT referred back to the discussion with Mr.
Schulte regarding page 4, lines 15-16, and asked whether Ms.
Milks had a problem with changing "control" to "regulate" and
deleting "possession."
1:58:03 PM
MS. MILKS replied that the language, including the word
"control" comes from Title 4, and it is not absolutely necessary
that the word be "control." She explained that elsewhere in the
initiative, and in this bill, it is clear that the Marijuana
Control Board would regulate marijuana. As to possession, she
remarked, there could be circumstances where possession of
marijuana would be inconsistent with the marijuana laws
currently being drafted, but certainly some possession is
protected under the Alaska State Constitution and under case law
REPRESENTATIVE MILLETT argued that possession of marijuana would
not be something a board would be concerned with, as that would
be under the Department of Law or Department of Public Safety.
She questioned why marijuana would be regulated under a
possession issue when it would be under the Department of Public
Safety to ticket or regulate.
1:59:43 PM
MS. MILKS responded that it depends upon the scope of the
regulation that is anticipated for the Marijuana Control Board.
In the event the Marijuana Control Board is anticipated to have
enforcement powers, it could conceivably regulate certain
circumstances of possession. For example, she pointed out,
there are circumstance where the board would regulate more than
a certain number of plants in a person's possession, or
possessing marijuana while transporting it from a manufacturer
to a retail establishment, or a cultivator to a producer.
REPRESENTATIVE MILLETT related that she has an issue because the
board is not the Department of Public Safety, therefore, it
shouldn't be ticketing on possession issues and that according
to the initiative the board is to control the manufacture and
sale of marijuana, not the possession. She highlighted that if
the board had a problem with possession wouldn't it call the
Department of Public Safety who could enforce it. She asked
whether the bill is giving powers of enforcement and whether the
board would now be monitoring possession. In that regard, she
noted, there would be two types of enforcement through the
Department of Public Safety law and through the Marijuana
Control Board.
2:01:10 PM
MS. MILKS referred to [Sec. 3, AS 17.38.085, Enforcement
powers], page 5, lines 16-23, which read:
The director and the persons employed for the
administration and enforcement of the chapter may,
with the concurrence of the commissioner of public
safety, exercise the powers of peace officers when
those powers are specifically granted by the board.
Powers granted by the board under this section may be
exercised only when necessary for the enforcement of
the criminally punishable provisions of this chapter,
other criminal statutes relating to substances or
activities regulated or permitted under this chapter,
regulations of the board, and other criminally
punishable laws and regulations relating to marijuana.
MS. MILKS said this paragraph gives certain enforcement powers
to the Marijuana Control Board.
2:01:45 PM
MS. FRANKLIN responded to Representative Millett that the
language reflects the direct copy of language the ABC Board has
regarding control of alcohol. The ABC Board does control the
possession of alcohol because if the board is limited to
controlling only those individuals who have licenses then the
board's authority has been taken away to shut down commercial
enterprises without licenses. With regard to marijuana, it is
important when thinking about the term possession in that there
is a distinction between personal possession, which is in AS
17.38.020, and what the voters intended with regard to the
sanctity of personal possession of marijuana. She explained
that in this case the discussion is in a commercial context
where someone opens a commercial marijuana enterprise without
following the rules, without getting a license of which there
are already three examples of facilities in the state. She
described the situation that without enforcement authority this
board is unable to act on something that it was clearly expected
to act on. She further described that when a business
advertises it is delivering marijuana the ABC Board gets the
call to shut that place down because the individuals who intend
to apply for licenses want to see everyone on a level playing
field. She opined that it is very important in the alcohol and
marijuana industry that the board have that enforcement
authority. She stated that separate enforcement really doesn't
work in real life as the ABC Board has five officers statewide,
and is proposed to be eight officers statewide with the addition
of this substance. She noted that the board works with local
law enforcement to ascertain that everyone operating in a
commercial context is regulated, is subject to the rules, and
has a license. She reiterated that should the legislature
determine that the board only has authority over licensed
business it completely does away with the ability of the board
to shut down anyone who tries to sell without a license. She
further reiterated that in this case, possession is commercial
possession, and the language is a duplication of the type of
control the ABC Board has over alcohol.
2:05:26 PM
CHAIR LEDOUX asked whether the businesses would be shut down
when someone calls law enforcement and everyone is arrested.
MS. FRANKLIN said (indisc.) where in the state this
establishment is located and its priorities. She described the
situation as frustrating because law enforcement then has
confusion about what they are and are not allowed to do. She
emphasized that the board and the board's enforcement officers
are supposedly the de facto experts of what is and isn't allowed
whether it be around alcohol or marijuana. She said she finds
herself advising local law enforcement officers or troopers that
certain people need to be shut down because the board does not
have the ability to do it themselves. On those occasions, it
depends upon that law enforcement agency's priorities as many
times their priorities are shootings, stabbings, rapes, and
murders. In that regard, if the establishment dealing in
marijuana doesn't rise high enough on their priority list ...
why not get the kind of action the state needs in the time frame
needed on an establishment like that.
2:07:17 PM
REPRESENTATIVE MILLETT asked that absent a decriminalization
piece of legislation, how would Ms. Franklin regulate from a
board if there are no possession limits, plants limits, and
anything set in stone ... how does the board go forward until
the legislature gets to a point next session where there is a
decriminalization bill.
2:07:55 PM
MS. FRANKLIN answered that in the event there is not a Marijuana
Control Board, it would default to the ABC Board and it would
use the rules currently existing in Title 4, in terms of
enforcement authorities and powers. AS 17.38 does provides some
guidance regarding a personal grow versus a commercial grow.
She explained that the board has been using current case law to
interpret the law the courts have generated around what
constitutes possession, joint possession, and constructive
possession. She related that the ABC Board would like to see
the legislature act, but the board will take the framework of
the initiative and move forward as best they can until next
session.
2:09:22 PM
REPRESENTATIVE MILLETT asked whether the ABC Board can arrest
people.
MS. FRANKLIN responded that the ABC Board has police officers
who hold special commissions from the commissioner of public
safety and have the ability to make arrests. She highlighted
that their enforcement ability is in Title 4, AS 04.06.110,
which limits them to enforcing rules around alcohol,
prostitution, and gambling as they relate to alcohol. She noted
there is a section for other criminally punishable provisions.
In the event no legislation is forthcoming, the ABC Board will
work with the Department of Public Safety, regarding the
commissions, to ascertain that it has authority to regulate the
substance in the manner the voters intended, as set forth in AS
17.38, she advised.
2:10:42 PM
REPRESENTATIVE FOSTER referred to [Sec. 2, AS 17.38.080], page
2, lines 30-31, which read:
(e) The rural member of the board shall reside or
have resided in a rural area for not fewer than 180
days within the five years preceding appointment.
REPRESENTATIVE FOSTER said it appears to him that a person could
have spent six months in a prior five years and not six months
in each of the prior five years.
MS. MILKS responded that his reading was correct as it would be
six months within the total period of five years preceding
appointment.
REPRESENTATIVE FOSTER noted that the above issue is an area of
concern for him. He referred to [Sec. 2, AS 17.38.080], page 3,
lines 21-22, which read:
(6) "rural area" means a community with a
population of 6,000 or less as determined under AS
29.60860(c).
REPRESENTATIVE FOSTER extended that Bethel, Alaska has a
population of 6,080, and it is very much a rural area and
suggested pumping it up a bit.
2:12:07 PM
REPRESENTATIVE CLAMAN referred to page 4, line 15, "The board
shall control the cultivation, manufacture ..." and said he
understands "control" is in the ABC Board statute and questioned
whether there a problem changing the word to "regulate."
MS. MILKS explained that the word "control" here certainly
encompasses regulate. She remarked that in the event
enforcement powers are given to the board as something beyond
just regulate, it would have the ability to go in and say "we
are shutting you down, we're taking your marijuana plants, or
we're impounding them, or whatever the response is." She
expressed that control is a broader range of response than just
regulate.
2:13:10 PM
MS. FRANKLIN commented that the voters decided that should a
separate board be created it would be called the Marijuana
Control Board, and she believes it is disingenuous to say it
didn't mean control.
2:13:32 PM
REPRESENTATIVE GRUENBERG referred to an earlier discussion
regarding enforcement powers under AS 17.38.085, page 5, [lines
16-23] and asked whether there should be a provision that before
the employees of the board exercise the duties of peace officers
that they are trained and certified in some manner. He asked
whether there should be authorization or a requirement for
training and certification.
MS. FRANKLIN answered that currently the requirement that those
employees are peace officers is in their job description. The
minimum qualifications for those jobs are written so that they
are police officers, and then they receive a commission from the
Department of Public Safety. She opined that there are a couple
of safeguards in place currently that protect against the idea
of the department just hiring someone without experience or
qualification and putting them into this enforcement position.
The applicants must meet the minimum qualifications under the
administrations requirement for getting the job, and then the
commissioner of public safety has an additional opportunity to
review their qualification, she explained. She highlighted that
should the commissioner of public safety decline to commission a
person then the ABC Board would not have the individual in that
job. She noted that historically they have employed these
officers over the years under the same language in Title 4, and
never had an issue with individuals not being qualified for that
commission.
2:16:04 PM
REPRESENTATIVE GRUENBERG described his question as technical as
to whether language had to be put into a statute, but it appears
that for the ABC Board this language is sufficient.
MS. FRANKLIN responded "Correct."
2:16:30 PM
REPRESENTATIVE GRUENBERG pointed out that some of the terms
commented on are due to the fact that Title 4, alcohol control
statutes were written many years ago when the drafting style was
possibly a bit looser. He opined that there may be a revision
of those laws and that possibly as the phraseology is updated,
that conforming amendments are provided in order to be in line
with modern language.
2:17:43 PM
CHAIR LEDOUX held CSHB 123(CRA) over.
2:18:59 PM
REPRESENTATIVE GRUENBERG said there had been technical issues
the witnesses mentioned of which did not appear to be
controversial and asked whether staff would include those issues
in the committee substitute.
CHAIR LEDOUX advised that staff may include some of the issues.
2:19:28 PM
REPRESENTATIVE CLAMAN related that the committee may want to
review page 3, [line 9], "(2) "immediate family member" means a
spouse, child or parent." He suggested the description is
narrower than what is being applied in this day and age for
immediate family members and that this was more a conceptual
idea and he didn't have the language.
CHAIR LEDOUX asked that Representative Claman work with her
office.
2:20:36 PM
REPRESENTATIVE GRUENBERG referred to [Sec. 2, AS
17.38.080(h)(6)] page, 3, lines 21-22, which read:
(6) "rural area means a community with a
population of 6,000 or less as determined under AS
29.60.860(c).
REPRESENTATIVE GRUENBERG commented that he is not familiar with
that statute but believes it was the subject of extensive debate
on the House floor in 1985. The statute discusses monuments and
"strange" things the committee may want to review.
CHAIR LEDOUX asked that Representative Gruenberg work with her
office.
[HB 123 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| AK-Initiative-Text.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| Hb 123 amend H.1.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| Hb 123 H.2.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB 123 Sectional Analysis.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB 123 Transmittal Letter.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 CS ver E.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 CS ver H.PDF |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 CS ver N.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 Fiscal Note - DOA.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 Letter of Opposition.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 Memo regarding fiscal note revision-DOA.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 Supporting Documents - ABC.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123-DCCED-ABC-03-09-15.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| HB123 Ver A.pdf |
HJUD 4/6/2015 1:00:00 PM |
HB 123 |
| Hotrum v State.pdf |
HJUD 4/6/2015 1:00:00 PM |
|
| SB30 v T.pdf |
HJUD 4/6/2015 1:00:00 PM |
SB 30 |
| CSSSB30 Draft Proposed v Q.pdf |
HJUD 4/6/2015 1:00:00 PM |
SB 30 |
| CSSB30(SFIN) Explanation of Changes.pdf |
HJUD 4/6/2015 1:00:00 PM |
SB 30 |
| CSSB30(FIN) Sectional Analysis Version T.pdf |
HJUD 4/6/2015 1:00:00 PM |
SB 30 |