Legislature(2015 - 2016)CAPITOL 120
04/08/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB123 | |
| HJR14|| HCR4 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HJR 14 | TELECONFERENCED | |
| + | HCR 4 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 30 | TELECONFERENCED | |
| += | HB 123 | TELECONFERENCED | |
HB 123-ESTABLISH MARIJUANA CONTROL BOARD
2:08:01 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."
2:08:30 PM
REPRESENTATIVE KELLER moved to adopt CSHB 123, Version 29-
GH1110\P, Martin, 4/7/15, as the working document. There being
no objection Version P was before the committee.
2:09:02 PM
MICAELA FOWLER, Legislative Liaison, Special Assistant to the
Commissioner, Office of the Commissioner, Department of
Commerce, Community, and Economic Development, said there are
two changes in Version P responsive to concerns voiced during
the last hearing ...
2:09:22 PM
The committee took an at-ease from 2:09 to 2:10 p.m., due to
technical difficulties.
2:10:44 PM
MS. FOWLER referred to [Sec. 2, AS 17.38.080(b)(3)], page 2,
line 17, which read:
(3) one person currently residing in a rural
area;
MS. FOWLER advised that the word "currently" has been added to
the rural seat and it is now required that one person currently
residing in a rural area serve on the board. She referred to
[Sec. 2, AS 17.38.080(g)(6)], page 3, lines 19-21, which read:
(6) "rural area" means a community with a
population of 7,000 or less that is not connected by
road or rail to Anchorage or Fairbanks, or with a
population of 2,000 or less that is connected by road
or rail to Anchorage or Fairbanks.
MS. FOWLER advised that the definition of "rural area" has been
changed and it is closely related to a combination of other
definitions of "rural area" in existing statute. She referred
to [Sec. 3, AS 17.38.084(a)], page 4, lines 14-15, which read:
(a) The board shall control the cultivation, manufacture,
and sale of marijuana in the state. ...
MS. FOWLER explained it removes the word "possession" from
control of the board.
2:12:27 PM
REPRESENTATIVE GRUENBERG referred to an amendment Representative
Foster wanted.
CHAIR LEDOUX advised that she believes the CS incorporated
Representative Foster's concerns.
REPRESENTATIVE FOSTER stated that Chair LeDoux was correct.
2:13:42 PM
REPRESENTATIVE GRUENBERG requested a copy of AS 17, and a few
minutes to review.
2:13:57 PM
The committee took a brief at-ease.
2:14:24 PM
MS. FOWLER responded to Representative Gruenberg and referred to
[Version N, Sec. 2, AS 17.38.080(e)], 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.
MS. FOWLER pointed out that the section was removed when
"currently" was added to [Version P], Sec. 2, line 17.
REPRESENTATIVE GRUENBERG confirmed that is yet another change.
MS. FOWLER answered yes.
2:14:53 PM
CHAIR LEDOUX said the Ms. Fowler indicated that "currently" had
been put into the CS.
REPRESENTATIVE GRUENBERG offered that he "just wanted to be
sure."
2:15:33 PM
REPRESENTATIVE LYNN moved to adopt Amendment 1, labeled 29-
GH1110\E.1, Martin, 4/2/15, which read [original punctuation
provided]:
Page 6, following line 8:
Insert a new bill section to read:
"* Sec. 4. AS 17.38.100 is amended by adding a new
subsection to read:
(i) A marijuana establishment may not be
registered under this chapter if a person who is an
owner, officer, agent, or employee of the marijuana
establishment has been convicted of
(1) a felony and less than five years
have elapsed since the person's unconditional
discharge from the conviction; or
(2) a misdemeanor involving a
controlled substance in the last three years."
Renumber the following bill sections accordingly.
CHAIR LEDOUX objected.
2:15:51 PM
REPRESENTATIVE LYNN advised that Amendment 1 proposes that a
marijuana establishment may not be registered under this chapter
if a person is an owner, officer, agent or employee of a
marijuana establishment and has been convicted of a felony and
less than five years have elapsed since the person's
unconditional discharge from the conviction, or a misdemeanor
involving a controlled substance within the last three years.
He stated that felonies or misdemeanors involving a controlled
substance, which could be marijuana, has demonstrated a
predilection not to follow established law. He described it as
a state of mind, that the past is too often the predictor of the
future, and the committee must be cautious as it is breaking new
ground in every aspect of marijuana laws. He stated that the
committee must be extremely cautious in how it constructs the
laws and urged the committee's approval of the amendment.
2:17:25 PM
CHAIR LEDOUX asked Cynthia Franklin, Micaela Fowler, and/or
Harriet Milks to explain their view of the amendment and how
things are done with respect to the alcohol industry.
2:17:50 PM
CYNTHIA FRANKLIN, Director, Alcoholic Beverage Control Board
(ABC Board), Department of Commerce, Community, and Economic
Development (DCCED), responded that with regard to alcohol in
Title 4, there is 10 year look back period on felonies but no
outright prohibition on individuals with felony convictions
being licensed for purposes of operating or holding a liquor
license. She advised that in the event the person applying for
a license has been convicted of a felony within the past 10
years they must appear before the ABC Board to explain their
conviction, the board has the discretion to grant the license in
spite of the conviction or to deny the license on the basis of
the conviction. She noted that it is a bit more open than
proposed Amendment 1, but it is a different substance and
alcohol has not recently been in the Controlled Substances Act.
In fact, she explained, marijuana may remain in the Controlled
Substances Act depending upon the fate of bills in the
legislature. She stated that a clear prohibition will decrease
board time spent on this issue, but she imagines that
individuals who plan to apply for licenses might have more to
say about it in terms of their opinion.
2:19:24 PM
CHAIR LEDOUX asked whether there is anything with respect to
misdemeanors in the ABC Board.
MS. FRANKLIN responded no.
CHAIR LEDOUX questioned whether the look back provision with
respect to felonies is in the statute or in regulation.
MS. FRANKLIN answered that it is in regulation.
2:19:58 PM
CHAIR LEDOUX surmised that since this is offered in the alcohol
industry regulations, she would like marijuana regulated the
same as alcohol. She said she will not withdraw her objection.
2:20:44 PM
MS. FRANKLIN added that there is a prohibition similar to
proposed Amendment 1, in SB 62, but she could not recall whether
the bill contains a prohibition related to misdemeanor
convictions. She reiterated that the five year felony
prohibition is present in the current version of SB 62.
2:21:11 PM
REPRESENTATIVE CLAMAN agreed that it should be under marijuana
regulations, and questioned whether the condition of CSHB 123
adequate to give the Marijuana Control Board regulatory
authority to create the same as the ABC Board has or should
there be a change to the bill if desiring that the Marijuana
Control Board has that authority.
MS. FRANKLIN responded that the language is adequate.
REPRESENTATIVE CLAMAN advised that he shares Chair LeDoux's
objection.
2:22:01 PM
REPRESENTATIVE KELLER referred to time saved for the board by
having these parameters implies that the 10 year look back
period takes a considerable amount of time. He asked whether
Ms. Franklin had to make decisions that were controversial in
her look back experience.
MS. FRANKLIN responded that she has only been to three board
meetings, and there was an applicant with a felony conviction.
She advised that she wouldn't say it takes a significant amount
of time although it does involve the board going into executive
session because an individual's criminal history is private.
Typically, she offered, because the board discovers the criminal
convictions through the Alaska Safety Planning and Empowerment
Network (ASPEN) security clearance that the enforcement officers
have, and the authority the board has to look at an individual's
criminal history who applies for a license. She reiterated that
board goes into executive session at the board meeting for the
board to discuss that history with the applicant. She further
reiterated that it does not take a significant amount of time
and that it add a human element to the board process in the
particular case she observed. It allowed the board to consider
rehabilitation efforts the individual had made and it was a
controlled substance conviction and was a long time prior. She
advised the individual had circumstances she wanted to explain
to the board and the license she was applying for was a beer and
wine license at a "hamburger/wings joint," and the board was
able to consider the age of the conviction, type of license
applied for, and weigh the various determinations as opposed to
a bright line scheme where the simple fact of the conviction
would automatically preempt the person from holding such a
license.
2:24:25 PM
REPRESENTATIVE KELLER related that five years and three years is
reasonable, wherein comparing five years to ten years is not
apples to apples. He remarked that proposed Amendment 1 is
good.
2:24:44 PM
REPRESENTATIVE GRUENBERG stated that when Chair LeDoux mentioned
some things that might be issues for the regulatory authority to
consider, he does not want the record to reflect that those
would be the only issues. He offered that other issues might
include whether a person would have a right to appear before the
board, and also whether this activity may have occurred in a
different jurisdiction with different laws. He offered a
scenario of a person with a little marijuana in a baggie in
their car glove compartment charged within the last three years
as to whether that person should be disqualified. He said he
agrees with taking it to the regulatory authority.
2:25:46 PM
REPRESENTATIVE LYNN responded to Representative Gruenberg that
prior to this initiative a small baggie of marijuana would have
been illegal which showed a predilection to not obeying the law.
REPRESENTATIVE GRUENBERG answered that it depends upon the case.
2:26:26 PM
CHAIR LEDOUX referred to the alcohol context and questioned
whether the prohibition is applied to simple employees of the
bar or just someone with a license.
MS. FRANKLIN replied that it is the applicant for the license or
applicant for the transfer.
CHAIR LEDOUX surmised that it would not affect hiring an
employee with an Alcohol Education Card (TAM) for example.
MS. FRANKLIN answered, correct.
2:27:00 PM
REPRESENTATIVE CLAMAN offered a further note in support of the
regulatory approach in that the legislature wants people who now
may be in the marijuana growing business to register and
participate. He stated he would rather have a person, with a
misdemeanor conviction for marijuana possession in the last
three years, licensed and identified rather than being in the
black market.
2:28:04 PM
REPRESENTATIVE LYNN referred to Ms. Franklin testimony wherein
she stated the board would go into executive session because
convictions are private. He questioned whether the convictions
are really private in that anyone can go on the internet or
courthouse to locate convictions of anything.
MS. FRANKLIN answered that it depends on whether it is an Alaska
conviction and in Courtview then anyone can see it. In the
event it is a federal conviction or out-of-state conviction that
is located on ASPIN, it is not viewable by the public. The
board is governed by processes created in regulation in terms of
how to treat the criminal history during public meetings. She
explained that the process is that an applicant applies, the
ASPIN history is run, and if there is an item on the history
that would cause the applicant to fall under that regulation the
information is shared solely with the director, and then the
board in executive session versus being on the board's public
agenda.
2:29:35 PM
REPRESENTATIVE LYNN opined that the state is entering an
entirely new ground and in the event there is an error it should
be on the side of caution. He offered that instead of five
years for felony it could have ten or twenty, but he was
attempting to reach a reasonable compromise and the same goes
with a misdemeanor as it could have been any number of years and
three years was chosen as reasonable for controlled substances
only, not for any other misdemeanors.
2:30:33 PM
A roll call vote was taken. Representatives Keller and Lynn
voted in favor of Amendment 1. Representatives Gruenberg,
Foster, Millett, Claman, and LeDoux, voted against it.
Therefore, Amendment 1 failed to pass by a vote of 2-5.
2:31:07 PM
CHAIR LEDOUX quiered whether this bill gives the board the
authority to create whatever license or license type it deems
necessary in order to effectively regulate the industry.
MS. FRANKLIN advised that it does.
2:31:29 PM
REPRESENTATIVE GRUENBERG questioned whether the Marijuana
Control Board will have the authority to create crimes.
MS. FRANKLIN responded "No," that by regulation the board will
not be creating crimes, but if through regulation if criminal
activity is identified there can be some penalty work performed
by regulation. In terms of creating offenses and putting an
individual into jail the answer is no, as obviously AS 17.38
gives whichever regulatory board that has authority over this
substance the ability to create civil penalty fines relating to
violation of the rules created by the board, she explained.
2:32:48 PM
REPRESENTATIVE GRUENBERG paraphrased Ms. Franklin's previous
statement that the board may be able to do something with
respect to criminal penalties.
MS. FRANKLIN replied that the statement is based on a discussion
pre-session with the board's attorneys in terms of how far the
regulations might go if no amendments to AS 17.38 occurred. She
said she would have to refresh her memory on that before putting
it on the record. Generally speaking, she offered, with regard
to Title 4, the regulations clarify statutes and she knows the
board cannot create crimes.
2:33:43 PM
REPRESENTATIVE GRUENBERG requested that a written follow-up
answer to his question be delivered to the committee and in that
manner he could determine if there is a problem.
MS. FRANKLIN responded that she is willing to prepare a written
follow-up.
2:34:37 PM
REPRESENTATIVE KELLER moved to report CSHB 123 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSHB 123(JUD) was reported
from the House Judiciary Standing Committee.
2:34:56 PM
The committee took an at-ease from 2:34 to 2:39 p.m.