Legislature(2015 - 2016)CAPITOL 120
04/10/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 109 | TELECONFERENCED | |
| += | SB 30 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 30-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES
1:09:40 PM
CYNTHIA FRANKLIN, Director, Alcoholic Beverage Control Board
(ABC Board), Department of Commerce, Community, and Economic
Development, referred to the ABC Board and agency's perspective
regarding Versions T and Q, and advised she would address
criminal provisions relating to marijuana in light of the
initiative. The document, "Preliminary Considerations for the
Implementation of AS 17.38," is located on the agency's web
site, she pointed out. She explained that the document
addresses how the criminal provisions relating to conduct around
marijuana will work and informed that committee that alcohol is
not in the Controlled Substances Act. She further explained
that all of the rules around alcohol are contained in Alaska
Statute Title 4, except that alcohol crimes relating to driving
are under Title 28. She opined that having all of the criminal
provisions in one place allows the ABC Board and its enforcement
officers to serve as de facto experts on what is, and is not,
allowed around alcohol in the State of Alaska. She stated that
in the event a Marijuana Control Board is created, the agency
can serve the same role regarding the regulation of marijuana
and what is, and is not, allowed. In assigning all of the
criminal provisions in one place, side-by-side, next to the
statutes enacted by the voters will assist in the laws being
clear for the general public and law enforcement officers.
1:11:58 PM
MS. FRANKLIN pointed out that the voters stated in AS 17.38,
their intention that marijuana is a legal substance for
individuals 21 years of age and older, which puts it in the same
category as alcohol as a legal but dangerous and regulated
substance. She conveyed that requiring law enforcement to start
with the basis that the substance is illegal is both contra-
indicated in the initiative and confusing for law enforcement
and members of the public. The conduct around the substance is
what the laws will be designed to address. She offered that
under the split scheme of having marijuana as a controlled
substance in Title 11, and also a legal and regulated substance
in Title 17, forces an officer into the position of determining
whether or not he/she is looking at a pile of legal regulated
marijuana or a pile of illegal marijuana. She extended that it
is not a concern of the ABC Board that it can't be done, as it
can, and if no criminal bill is passed that will be the status
of the law in this state. The concern is that there would
potentially be a lack of enforcement over conduct around
marijuana that is illegal. She pointed out that in discussing
goals set forth in the James M. Cole, Deputy Attorney General,
U.S. Department of Justice, 2/19/13 memo entitled "Guidance
Regarding Marijuana Enforcement," and how to strictly regulate
this substance and stay on the right side of the James M. Cole
Memo, the ABC Board should be able to enforce the rules and if
the rules are confusing and difficult to enforce, the state
risks a lack of enforcement that could lead to public safety
issues. She articulated that as set forth in the ABC Board's
preliminary considerations document, the ABC Board has taken the
position that the most desirable approach is to place a series
of criminal offenses in one place in Title 17, which proclaims
and announces to the world what is, and is not, allowed around
marijuana subsequent to the voter initiative.
1:14:51 PM
MS. FRANKLIN responded to Chair LeDoux that the "Preliminary
Considerations for the Implementation of AS 17.38" document is
part of larger document and Ms. Franklin will email it to her.
1:15:31 PM
REPRESENTATIVE CLAMAN commented that currently there are
marijuana offenses as a controlled substance in Title 11. He
asked what the criminal offense would be for more than one
ounce, and whether there would both be up to one ounce that is
legal and also a Title 17 offense that begins at over one ounce.
There would be no be Title 11 marijuana offenses, and all
misdemeanor and felony marijuana offenses would be contained in
Title 17, he surmised.
MS. FRANKLIN responded "Yes," and explained the alcohol offenses
in Title 4 apply to both licensees and non-licensees. She
advised that all provisions in Title 4 are not only related to
commercial alcoholic activities. She used the example of AS
04.16.051, which is furnishing alcohol to a minor by someone who
does not hold an ABC Board license, and AS 04.16.052, is what
happens when a liquor licensee furnishes alcohol to a minor.
She clarified that the idea is that all criminal conduct around
marijuana would be contained in one place, whether it is
committed by someone holding a marijuana license or someone who
does not.
REPRESENTATIVE CLAMAN surmised that also contained in Title 17,
would be the specification that up to one ounce, if a person is
over 21, is now legal and above that would be illegal. He
further surmised it would clearly have that first ounce
consistent with the initiative and would be clearly legal as
articulated in the statute.
MS. FRANKLIN answered in the affirmative, and advised that
essentially it would state where a person gets beyond what is
contained in the initiative as being legal. She advised that
the term used in the previous version of the bill was
"misconduct involving marijuana," and it would described how
that offense is committed and include the various types of
conduct that would run a person into that problem and the
associated penalty.
1:18:21 PM
CHAIR LEDOUX noted that under the initiative a person can
possess one ounce purchased from a vendor, and a person can also
possess up to six marijuana plants which can grow more than one
ounce. She questioned whether it makes sense that a person
cannot purchase more than one ounce and it becomes either a
fairly hefty misdemeanor or maybe a felony, but a person can
grow as much as they can grow. In that regard, a person with a
"green thumb" could produce quite a bit and someone else
couldn't produce any, and that the criminal laws are based upon
that issue.
MS. FRANKLIN responded that the legislature is guided by the
initiative and the initiative decriminalizes possession of an
ounce outside a person's home. [The initiative] then turns to
what a person can do inside of their home and discusses the
growing provisions and does provide that a person is permitted
to possess the harvest of their grow. She opined it does vary
because Alaskans have had the right to grow in their own home
for many, many years, and that the amount of the harvest varies
tremendously from thumb-to-thumb. She further opined that
criminal penalties would have to be written that are structured
around what the voters have voted for. Although, she answered,
it doesn't necessarily make sense and when compared to alcohol
where a person can virtually have any quantity unless in a local
option community, it would make these criminal provisions look
very different. She remarked that she is taking the advice of
colleagues in Colorado who said, when embarking into this new
territory the legislature should start conservatively with
strict rules and regulations that later on can be reviewed once
it is determined how the rules are working. She said she takes
the initiative literally, and when it talks about possession
outside of a person's home and puts the one ounce limit on it
that it makes sense the rules would have to say what happens
when a person possesses more than one ounce outside of their
home. She pointed out that it is the legislature's policy
determination in setting the penalties and posited that if the
legislature says, as the voters have said, the limit on the
amount a person can possess outside their own home is one ounce,
there must be a corresponding provision to inform what happens
when a person possesses more than one ounce.
1:22:07 PM
CHAIR LEDOUX extended that the initiative does not read that a
person can only possess an ounce outside of a person's own home
as it just reads an ounce. She put forth a scenario of the
police coming into a person's home for some other reason and
finds two ounces of marijuana with no plant. The person then
advises that the plant died and the two ounces is harvest from
their plant. Practically, she asked, what happens and how does
Ms. Franklin anticipate that working inside the home.
MS. FRANKLIN replied that it is a difficult question because
inside the home is the exact area the Alaska Supreme Court
addressed in Ravin v. State of Alaska, 537 P.2d 494 (Alaska
1975), and in Noy v. State of Alaska, 83 P.3d 538, 544-45
(Alaska Ct. App. 2003), in which the Alaska Supreme Court deemed
Alaskans have a constitutional right of privacy to possess up to
four ounces of marijuana in their own home. She described it as
a difficult task to set those limits and the legislature has a
tough job in terms of creating offenses around what a person
can, and cannot, possess. She advised that the ounce she was
speaking of was literally the ounce referred to in the
initiative, which is legal for adults to possess up to one ounce
outside the home. She warned the committee to be careful when
legislating the amount adults can possess inside their home when
cross-referencing the Alaska Supreme Court precedent that has
been created and upheld in this state.
1:24:29 PM
CHAIR LEDOUX asked whether Ms. Franklin reviews the initiative
as regulating one ounce outside of the home as opposed to inside
the home. She surmised that it includes inside the home also
except that with the marijuana plant a person can possess more
as long as it came from that particular marijuana plant.
MS. FRANKLIN responded that there are three areas: outside the
home; inside the homes with respect to growing and harvesting
the plants; and inside the home with respect to the rules
established by the Alaska Supreme Court in the Ravin and Noy
decisions.
1:25:33 PM
CHAIR LEDOUX asked Ms. Kaci Schroeder how, in a practical
manner, the questions she asked Ms. Franklin would work with the
Department of Law (DOL).
1:26:02 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law (DOL), summarized Chair LeDoux's questions as
to when a person possesses two ounces in their home and for some
reason law enforcement ...
CHAIR LEDOUX restated the scenario in that a person has two
ounces in their home with no marijuana plant.
MS. SCHROEDER responded that it is difficult to offer a straight
answer because there is the Noy decision that re-enforced the
four ounces and it is still good law. She advised that
subsequent to the 2006 Noy decision, the legislature changed the
law again as it had new findings regarding how bad marijuana
was. The legislature then lowered the limit and did not
specify, so it applies inside the home. As a practical matter,
she stated, she does not know whether a trooper would make an
issue out of Chair LeDoux's scenario. She related that the law
on the books, in December, has not been challenged so there is
some conflict between case law and what is on the books.
1:27:14 PM
CHAIR LEDOUX asked whether the Noy decision was four ounces.
MS. SCHROEDER advised that it re-enforced the legislature's
determination of four ounces.
CHAIR LEDOUX pointed out that a marijuana plant could produce
more than four ounces and a person can possess all of the
harvest.
MS. SCHROEDER agreed in that the initiative reads there is no
threshold as long as a person is cultivating and harvesting it
from their own plant.
CHAIR LEDOUX surmised that if a person wants more than four
ounces there had better be a plant in the house.
MS. SCHROEDER indicated that when a person has a plant it has
been referred to as a justification.
1:27:59 PM
REPRESENTATIVE CLAMAN stated that the initiative reads one ounce
and six plants. He asked whether that means a person could
possess an ounce on the street, and when at home could add to
the same ounce with whatever the person can gather off of six
plants.
MS. SCHROEDER answered in the affirmative as that is how DOL
reads the initiative.
1:28:58 PM
CHAIR LEDOUX advised that Amy Saltzman and Jordan Shilling will
take the committee through the bills, particularly the side-by-
sides with respect to penalties and tell the committee, in the
event it decides to take marijuana out of controlled substance,
what might need to be done to tweak the bill a bit.
1:29:36 PM
AMY SALTZMAN, Staff, Senator Lesil McGuire, Alaska State
Legislature, [Available to testify and answers questions.]
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, [Available to testify and answers questions.]
1:29:42 PM
MS. SALTZMAN referred to a comparison document provided in the
committee member's packets and advised that the document was
prepared so the committee could review the differences between
the version passed out of Senate Judiciary Standing Committee
[Version Q], and the version passed out of Senate Finance
Committee [Version T] with regard to the crimes and penalties
assessed. She pointed to the document and that the Senate
Finance Committee version, class C felony crimes, include:
* Possesses 16 or more ounces of useable marijuana
outside of the home.
* Possesses 25 or more plants.
* Furnishes marijuana twice within five years to a
person under 21 years of age.
MS. SALTZMAN stated the penalty is a fine of up to $50,000 and
jail time of zero to five years. The Senate Judiciary Standing
Committee version started its highest penalty crimes at class A
misdemeanor crimes, include:
* Possesses 25 or more marijuana plants,
manufacturing more than six marijuana plants.
1:30:53 PM
CHAIR LEDOUX asked how a person manufactures a plant.
MS. SALTZMAN responded that it is the cultivation process ...
MR. SHILLING replied that growing a plant is excluded from the
definition of manufacture. He stated that Ms. Hilary Martin
could speak to the nuances.
1:31:38 PM
MS. SALTZMAN continued reading the Senate Judiciary Standing
Committee version's highest penalty crimes at class A
misdemeanor crimes, include:
* Delivers or transports more than one ounce of
usable marijuana or more than six marijuana
plants.
MS. SALTZMAN advised the above is in reference to transporting
in a person's vehicle or delivering to another person by
carrying these out in the public or transporting by vehicle.
She continued that the Senate Judiciary Standing Committee
version's highest penalty crimes at class A misdemeanor crimes,
include:
* Delivers any amount of marijuana to a person
under the age of 21.
* Manufactures a marijuana concentrate using a
volatile or explosive gas.
* Delivers or transports an ounce or less of
marijuana or six plants or less for remuneration
or barter.
1:32:20 PM
CHAIR LEDOUX referred to remuneration or barter and said that
barter is part of remuneration. She offered a scenario in which
a person gives six marijuana plants for six bottles of wine,
therefore, the person is paid. She asked why the term barter is
included and how barter differs from remuneration.
MS. SALTZMAN advised that the issue was debated by the committee
and was an amendment as to the definition of barter.
MR. SHILLING said that remuneration strictly means monetary
gain, currency. He explained that the intent of adding barter
is because there are other things that have value and barter is
to include the exchange of goods and services.
1:33:25 PM
CHAIR LEDOUX asked Mr. Shilling how he determined that the
definition of remuneration only includes money. She further
asked whether it was a Webster's Dictionary definition or a
definition in law as his definition is not the common place
definition of remuneration.
MR. SHILLING conveyed that Legislative Legal and Research
Services advised it is strictly money, and offered to review
Black's Law Dictionary, or that Chair LeDoux could speak with
Ms. Hilary Martin.
MS. SALTZMAN added that the original language used "benefit"
which was too broad for most people to interpret, and that it
was typically used within the Alaska Statutes. The intent was
to get it a little narrower, however, barter is a fairly broad
term, she noted.
1:34:21 PM
CHAIR LEDOUX asked whether "benefit" is from the initiative.
MR. SHILLING answered that the initiative only refers to
"remuneration." "Benefit" is the term Legislative Legal and
Research Services used when initially drafting the bill. He
opined that is the form it took for a of couple working
committee substitutes in the Senate Judiciary Standing
Committee.
1:35:00 PM
MS. SALTZMAN continued with the presentation and referred to the
Senate Finance Committee version of CSSB 30 [Version T]
class A misdemeanor crimes, include:
* Delivers or transports more than one ounce of
marijuana or more than six marijuana plants.
* Possesses 3 but less than 16 ounces of marijuana
outside of the home or 12-24 plants.
* Delivers any amount of marijuana to a person
under 21 years of age.
* Delivers or transports an ounce or less of
marijuana or six plants or less for remuneration
or barter.
* Manufactures a marijuana concentrate using a
volatile or explosive gas.
* Brings marijuana into a correctional facility.
CHAIR LEDOUX questioned whether there are provisions in the
Senate Finance Committee version that are not a class A
misdemeanor within the Senate Judiciary Standing Committee
version.
MS. SALTZMAN answered in the affirmative.
CHAIR LEDOUX asked whether those provisions are in any [class]
within the Senate Judiciary Standing Committee version.
MS. SALTZMAN replied that within the Senate Judiciary Standing
Committee version marijuana was removed from the controlled
substances and it did address the issue of bringing marijuana
into a correctional facility. She opined that it wasn't put on
the crime schedule but it may have ended up there if there had
been further debate. She remarked that it was recommended by
DOL that it remain as a class A misdemeanor. She conveyed that
the possession crimes are the significant difference by adding
the amounts, thresholds, and limits on the 3-16 ounces, which
was the heart of the Senate Finance Committee debate when it
added these crimes in the schedules.
1:36:59 PM
CHAIR LEDOUX quiered whether they were not crimes at all under
the Senate [Judiciary Standing Committee] version.
MS. SALTZMAN explained that the only crime the committee had was
possessing 25 plants or more which was a class C felony. She
noted it was moved from a class C felony to a class A
misdemeanor in the Senate Judiciary Standing Committee version.
CHAIR LEDOUX asked whether 3-16 ounces of marijuana outside of
the home or 12-24, was anything in the Senate Judiciary Standing
Committee.
MS. SALTZMAN responded that the committee had a class A
misdemeanors as possession of 25 or more, and a class B
misdemeanor as possessing more than 6 but less than 25 plants.
Ms. Saltzman replied to Chair Ledoux that the committee
struggled in attempting to determine the best definition for
usable marijuana. She advised that the Senate Judiciary
Standing Committee and the Senate Finance Committee worked
together in attempting to ascertain a clear definition for
[usable marijuana], which was achieved in the Senate Finance
Committee version.
CHAIR LEDOUX pointed out that the [usable marijuana] definition
would be relevant not only for 3-16 ounces of marijuana, but
also one ounce.
MS. SALTZMAN answered in the affirmative.
1:38:33 PM
MS. SALTZMAN continued her presentation and advised that the
Senate Judiciary Standing Committee version, class B misdemeanor
crimes, include:
* Possesses, purchases, displays, delivers or
transports more than 6, but less than 25
marijuana plants.
* Delivers more than one ounce of usable marijuana
in a public place or possesses, or delivers more
than six plants.
MS. SALTZMAN stated that the Senate Finance Committee version
[class B misdemeanor crimes] include:
* Possesses more than two, but less than three
ounces of usable marijuana outside of the home.
* Possesses seven to eleven plants.
1:39:02 PM
MS. SALTZMAN said with regard to violations, the Senate
Judiciary Standing Committee version, violations punishable by a
fine of $300, include:
* Manufacture marijuana in a location where the
plants are in public view or not secure from
unauthorized access or on property not in
possession of the person or without consent of
the property owner.
* Are under 21 and attempts to purchase marijuana
with false identification or otherwise
misrepresents the person's age.
MS. SALTZMAN said the Senate Judiciary Standing Committee
version, violations punishable by a fine of $100, include:
* Are under 18 and possesses, uses, or displays any
amount of marijuana.
* Are over 21 and use any amount of marijuana in a
public place.
* Are between the ages of 18-20 and use, display or
possess one ounce or less of marijuana.
MS. SALTZMAN clarified that the drafting language of some
sections in the Senate Judiciary Standing Committee version are
convoluted as there were issues in putting the initiative
language into misdemeanor crimes, and attempting to replicate
the initiative language of delivery, display, and possess. She
indicated the committee attempted to put that language in the
bill for clarity sake, but it made the language more confusing.
Therefore, she pointed out, some of the language needs to be
cleaned up.
1:40:33 PM
MS. SALTZMAN referred to the Senate Finance Committee version
wherein violations punishable by a fine up to $300 include:
* Possesses over one ounce but less than two ounces
of marijuana outside the home.
* Consumes marijuana in a public place.
* Grows marijuana in public view or on someone
else's property without their consent.
* Uses marijuana while operating a vehicle.
* As a minor, possesses less than two ounces of
marijuana or consume any amount of marijuana.
1:41:10 PM
CHAIR LEDOUX referred to the Senate Judiciary Standing Committee
version of the non-controlled approach, and asked Ms. Saltzman's
recommendations in incorporating some of the Senate Finance
Committee version.
MS. SALTZMAN stated it would be best to create a hybrid if that
is the direction the House Judiciary Standing Committee
preferred. She offered that the Senate Finance Committee
version clarifies the definition of marijuana. She indicated
that another policy call the committee might consider is in the
Senate Finance Committee version wherein Tetrahydrocannabinol
(THC) was removed from the IIIA controlled substances, and put
into VIA controlled substances, which is the definition of
marijuana in the controlled substances. She stated it is up to
the committee to consider whether it prefers removing THC
entirely from the IIIA controlled substances, or where the
committee would like to put marijuana in the future.
1:42:39 PM
MS. SALTZMAN, in response to Chair LeDoux, advised that
Tetrahydrocannabinol (THC) is listed in the IIIA controlled
substance schedule and ...
CHAIR LEDOUX asked "as opposed to the Sec. 6."
MS. SALTZMAN answered in the affirmative, and advised that the
confusion was discussed with DOL, who indicated they are not
sure what it is defining, and what is the definition of THC.
She indicated that DOL considered putting it in to deal with
synthetic THC, rather than organic THC. Although, she opined,
since the definition is so unclear there is the issue that the
committee could be making all of marijuana illegal because there
is no marijuana without THC. In that regard, removing it
entirely from IIIA controlled substances might be an option to
consider, or possibly moving it to another place, she offered.
1:43:35 PM
MS. SALTZMAN continued her presentation and advised that the
sale of concentrates section was added in Senate Judiciary
Standing Committee and amended in the Senate Finance Committee,
wherein it reads that a person could only sell five grams per
transaction. The Senate Judiciary Standing Committee version
reads five grams total, which is not possible to track because
the initiative prohibits any sort of tracking system of sale.
She related that it was corrected in the Senate Finance
Committee version.
CHAIR LEDOUX offered that it is questionable whether or not the
sale belongs in the criminal bill as opposed to letting the,
hopefully, created Marijuana Control Board deal with that.
1:44:32 PM
MS. SALTZMAN advised that in the event the Marijuana Control
Board does exist, the Senate Finance Committee version grants
the powers of enforcement through Title 11 and Title 17, thereby
granting authority to follow through with the enforcement issues
it would be tasked with. There is a provision providing firemen
or EMS under 21 to enter a marijuana facility if responding to
an issue which, she added, the Senate Judiciary Standing
Committee version supports. She referred to the open container
law and advised it was changed from the Senate Judiciary
Standing Committee version and in the Senate Finance Committee
version was modified slightly. With reference to the CourtView
records for juveniles, Ms. Saltzman advised that staff worked
closely with the Senate Finance Committee and the Alaska Court
System to be certain the language reflected the intention of the
Senate Judiciary Standing Committee.
CHAIR LEDOUX referred to juveniles and offered her concern that
when a person is joining the military, there is probably a
conviction question regarding a felony or misdemeanor, and a
person convicted of a felony or misdemeanor may not be able to
join the military. She stated that in order to be certain with
juveniles that the committee should keep it in the violation
category.
1:46:51 PM
MS. SALTZMAN responded that the Senate Judiciary Standing
Committee and Senate Finance Committee debated keeping these
records off of CourtView once the cases were closed. She
explained that the intent was not prohibiting any sort of life-
long decision that a juvenile might damage.
CHAIR LEDOUX advised her concern is keeping them off CourtView
so the public, when they have nothing better to do in the
evening, cannot see a juvenile's [record]. She remarked that if
the committee wants to be certain it is not having an impact
forever on a juvenile's life, it might take eliminating it from
CourtView altogether.
REPRESENTATIVE CLAMAN offered that court records are available
at the courthouse regarding files purposely not available on
CourtView, and that the public can draw wrong conclusions from
information involving acquittals and other issues.
1:48:38 PM
MS. SALTZMAN said that the Senate Finance Committee version
added delivery of marijuana as a crime in order to prohibit a
delivery service of marijuana, and the committee may want to
consider keeping that in.
CHAIR LEDOUX asked for clarification regarding the licensed
marijuana establishment not being allowed to deliver its goods.
She added that in California they do deliver medical marijuana,
but that is something that should be dealt with in the marijuana
regulations.
1:49:44 PM
MS. SALTZMAN indicated that the Senate Finance Committee version
added language for the local option of opting out or the option
of established villages opting back in.
1:50:03 PM
REPRESENTATIVE CLAMAN stated it is the House Judiciary Standing
Committee's view that the "opt in/opt out" topic was addressed
in HB 75.
1:51:48 PM
The committee took an at-ease from 1:51 to 1:53 p.m.
1:53:01 PM
JORDAN WELLINGTON, Attorney, Law Office of Vincente Sederburg,
The Marijuana Law Firm, said his background includes being a
staffer in the Colorado General Assembly, an attorney and former
bill drafter for the New Jersey legislature including a
legalization initiative. At the end of the legislative session
he worked for the Colorado Marijuana Enforcement Division and
assisted in organizing its rule making and working groups and
was part of a small team that drafted regulations governing both
retail and medical marijuana in Colorado. He then joined the
Law Firm of Vincente Sederburg, and works on regulatory
compliance for licensed marijuana businesses. He remarked that
he performs policy work with other states in devising
responsible regulatory structures. He noted that the discussion
[today] is of de-scheduling cannabis and whether that is an
appropriate way to move forward.
1:55:23 PM
CHAIR LEDOUX asked whether he had any advice for this
legislature based upon what Colorado did right, or wrong.
1:55:34 PM
MR. WELLINGTON responded that a large lesson is the importance
of a policy perspective embracing the challenge and setting up a
regulatory structure designed to protect public safety, but
doesn't go overboard. He stated that his first piece of advice
is to take a careful, thoughtful approach to what is put in
place because there is a lot of white noise that can create
negative consequences. For example, there are numerous labeling
requirements in Colorado, many of which were well intentioned
but created so much white noise on the label that Colorado is
not conveying the most important information to consumers in
order to protect public safety, he explained. In drilling down
specifically on the issue of de-schedulaization it is important
to look holistically at the code, and especially criminal codes
where the controlled substances come up. Colorado drafters
frequently reference that list of substances and it has been
dealing with the child abuse and neglect statutes. He said that
due to the manner the statutes are written that basically the
possession, manufacture, production, or use of a controlled
substance, is more or less per se child abuse in a lot of
situation. Currently, there is a situation in Colorado where it
is important to remove cannabis from those schedules so it can
be treated as much more of a totality of the circumstances
approach. Obviously, he pointed out, engaging in the use of any
substance as a parent could present a risk to their child as it
depends upon whether the parent does so responsibly, as in
alcohol or any other substance they might take. He advised it
is important to look at cannabis as a legal substance and the
totality of the circumstances situation and not just a binary
first (indisc.) decision that is seen in many abuse and neglect
statutes. He offered that probation is another great example
where people who are very sick, people with epilepsy, and people
with cancer, that are on probation are denied the use of medical
cannabis due to federal prohibition. He advised that removing
cannabis from the schedule allows each individual circumstance
to be treated more appropriately as opposed to a broad brush
stroke that the Controlled Substances Act is.
1:58:57 PM
REPRESENTATIVE KELLER said that he read an article wherein
regret was expressed from Colorado and Washington for not having
done more to enable the regulation of concentrates and potency,
which he assumes relates to the labeling.
MR. WELLINGTON responded that he has heard concerns about
concentrates with the biggest issue being developing a solid
equivalency standard for sales through the Marijuana Enforcement
Division, in order that the discussion would be like components.
He conveyed that he has not seen a lot of actual concerns on the
ground in terms of people using cannabis concentrates as there
are legitimate substances a person may want to use, both for
medical or recreational purposes. He related that it is really
a question of how that line is drawn to determine that people
are not over aggregating large quantities, and that his focus is
always public safety, diversion to other states, and diversion
to minors. He opined that an important way to do that is having
reasonable sales limitations at the counter. In that manner, a
person may be able to purchase just one ounce of marijuana
flower at the register, and not necessarily an entire ounce of
marijuana concentrate at the register. He pointed out that
developing a rational equivalency standard would reduce the
amount a person could purchase thereby limiting diversion, which
he strongly suggested the legislature consider if it makes sense
for Alaska.
2:00:55 PM
REPRESENTATIVE KELLER indicated that he was hoping Mr.
Wellington could give the committee the rational equivalency
standard.
2:01:03 PM
REPRESENTATIVE CLAMAN referred to prior testimony from Ms.
Cynthia Franklin that indicated a broad concept thereby starting
with a clear set of regulations and basic set of laws. He
extended that in going forward they would need to be refined,
but to not try and get every detail right the first go-around.
He asked Mr. Wellington for background in terms of Colorado's
experience as to how much detail it tried to provide at the
first instance, and the timeline in which it has gone in making
modifications or adjustments to the laws and regulations.
2:02:06 PM
MR. WELLINGTON answered that Colorado has seen issues on both
sides of this kind of situation. On one hand there are
regulations and statutes drafted broadly enough that allowed the
Marijuana Enforcement Division (Colorado's regulatory agency) to
adjust and massage the regulations over time without statutory
intervention. He expanded that an example can be found in
Colorado's concentrate production regulations, which he strongly
recommends Alaska's regulatory body review as it is an important
worker safety measure. The Colorado Marijuana Enforcement
Division had broad authority to regulate various things for
basic efficient and safe administration of the article, he
remarked. Although, he pointed out, there was no express
designation for them to regulate concentrate production it was
able to use the broad grant of authority to establish a fairly
comprehensive set of regulations designed to protect worker
safety around the production of concentrates.
2:03:13 PM
MR. WELLINTON offered an example regarding the manner in which
packaging language was drafted in that a determination was made
that serving sizes should be more intuitive in a retail
marijuana product. He explained that without any statutory
authority or direction from the legislature, the Colorado
Marijuana Enforcement Division recognized it needed to adjust
the structure of packaging and immediately convened working
groups, developed a set of rules, and implemented the rules very
quickly. He further explained that it created economic
incentives to reduce the size of cannabis within a package, and
at the same time made serving sizes more intuitive for adults
thereby reducing accidental over ingestion. He pointed out that
in contrast to that, Colorado still has problems with labeling
requirements as there are 20 different things per statute that
must be on the label. He advised that label requirements are
statutory and specific, and they downed the regulators hands.
He noted that the regulators would like to remove some of the
noise and unnecessary information on the label. For example, he
offered, only the batch number and producer is needed, but there
is a host of other tracking information that due to Colorado's
tracking system is duplicative and unnecessary but is forced to
be on there. He said that all of that information creates white
noise for the consumer and thus reduces the ability to put
special warnings in larger font regarding storing safely, not
allowing access to minors, or waiting two hours for the effect
of an edible product to come in, which affects consumer safety.
He noted there is a balance of making sure the regulators do
check off all their boxes, and not binding their hands to very
specific legislation in that the Alaska regulatory agency has
the flexibility to change those rules as it sees fit. This is
involving policy and just because something works in Colorado
doesn't mean it will work in Alaska. He pointed out that the
Alaska legislature will have to design policy that fits its
communities and state, and the legislature will not get it right
the first time as no one does. He related that giving
regulators flexibility within the language to make adjustments
to protect public safety is very important.
2:06:16 PM
REPRESENTATIVE CLAMAN surmised that Mr. Wellington strongly
recommends, in the area of labeling, to be certain as a
legislature that it gives the regulatory entity authority to
manage labeling in that it doesn't come back to the legislature
every time.
MR. WELLINGTON agreed with Representative Claman's statement,
but stated that on the other hand the legislature does not want
to give the regulatory entity flexibility on things like child
resistant packaging as everything should be in child proof
packaging with no negotiations or conversations to the contrary.
2:07:40 PM
HILARY MARTIN, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, said she is available on
line.
CHAIR LEDOUX asked what manufacturing a plants means.
MS. MARTIN responded that manufacture is currently defined in AS
11.71.900, and reads that manufacturing does not include growing
marijuana for personal use. She offered that manufacturing does
include growing, cultivating, production, and preparation and
conveyed that manufacturing includes growing marijuana and
making it into a concentrate or some other process to get a
different product out it.
2:08:51 PM
CHAIR LEDOUX asked whether [the bill] could [read] cultivating
and processing marijuana as opposed to manufacturing marijuana,
which might be easier for a person to understand.
MS. MARTIN replied that processing and cultivating is included
in the definition in AS 11.71.900, and there does not have to be
an identical definition. She pointed out that the initiative
does not define manufacture and if Chair LeDoux wanted to adjust
the definition it is certainly a possibility.
2:09:34 PM
CHAIR LEDOUX asked whether remuneration is defined in any of the
statutes and whether it includes barter.
MS. MARTIN responded that remuneration is not currently defined
in the statutes and is in defined in the initiative. She said
that a common dictionary definition seems to imply a transaction
for money, and it is unclear whether it would include barter.
An option to solve the problem is including a definition of
remuneration to make it clear what it is, and is not, she
remarked.
CHAIR LEDOUX previously questioned the confidentiality issue of
juvenile records and asked Mr. Matt Davidson to testify.
2:10:46 PM
MATT DAVIDSON, Division of Juvenile Justice, Department of
Health & Social Services, said any felony or misdemeanor
provision is handled by the Division of Juvenile Justice under
AS 47.12.310 or .315. He pointed out that the records are
strictly confidential and released under limited circumstances
so the criminal act under marijuana would remain confidential
and handled by the Division of Juvenile Justice. The portion of
the bill speaking to confidentiality deals with violations that
would become district court offenses, basically pot tickets. He
noted concern in the Senate Judiciary Standing Committee about
those being on juvenile's records publically forever and
assessable. He explained that the provision is aimed at the
non-criminal offense, and more the violations that are handled
in district court via fine.
2:12:00 PM
REPRESENTATIVE CLAMAN surmised that the parallel would be minor
consuming for alcohol that show up as district court minor
infraction type offenses whereas everything else would go into
their juvenile record. In that regard, he said, with marijuana
someone might get ticketed for possession of marijuana in
district court. In the event the person was under 18, it would
be a public record unless there was a means to insist those
could only be prosecuted by juvenile authorities which would
bring in the confidentiality, or provisions to make them
confidential.
2:12:51 PM
MR. DAVIDSON stated that Representative Claman is correct, and
there was discussion regarding the potential of moving all
marijuana offenses or keeping them all in the Division of
Juvenile Justice. He advised that would be problematic as those
would be status offenses and not currently going to be criminal
acts. He explained that a status offense is something that is
not illegal if an adult, but illegal as a juvenile. He related
that the Division of Juvenile Justice had provided testimony
that it would like to keep them out of the criminal system as
they are violations, and are given a fine, which is the same for
alcohol. He noted that there are provisions in place under AS
47.12.310 allowing the division to release information, with the
consent of the individual, to military recruiters or employers,
but is limited to adjudications which would be the equivalent to
being convicted for a crime as a juvenile. He offered that the
division is authorized to release those records, and juveniles
themselves are allowed to release any confidential information
from their juvenile records. He noted that the military
requires signing under oath regarding anything a person has been
charged with, so whether it is confidential or not, the juvenile
should not withhold that information. He remarked that this
bill would not change information a juvenile is required to
release to a military recruiter.
2:15:00 PM
CHAIR LEDOUX asked whether or not being a minor in possession of
pot would preclude someone from getting into the military.
MR. DAVIDSON advised that he researched this issue and under
either version of the bills a minor cited for a marijuana
violation would not be precluded from entering the military.
Although, he commented, the military may decide a person having
a number of violations could be precluded. He remarked that the
military does have a waiver processes whereby kids with criminal
records, and some of them extensive, are given waivers when they
can show they have been rehabilitated. In that regard,
juveniles who go through the Division of Juvenile Justice, and
sometimes an adjudicated delinquent that spends time in a
juvenile treatment facility are sometimes able to enter the
military, but they have to go through a more formal process. He
opined that the military recruiting documentation indicates that
a violation such as a marijuana ticket, under-age drinking
ticket, fish & game violation, or a traffic violation under
these bills will not preclude a juvenile. He suggested that a
felony or higher misdemeanor conviction might preclude a person
from joining the military.
CHAIR LEDOUX opened public testimony.
2:18:06 PM
TOM PATMOR, Citizens for Rights on Marijuana, said it is
ridiculous to expect kids 21 years or younger to abide by any
rules unless the parents are given some discretion in
disciplining these kids. He related that a parent tries to
spank a kid, is reported to the police, and the parents go to
jail for disciplining their kids. He remarked that kids now
days think they are more grown up than they actually are and
telling them they can't do something until they are 21 ... they
hardly ever listen to that as they want to do the same as
adults. He pointed out that if they see their parents, or
neighbors, or anyone else smoking pot they are going to figure
they can do it also. He offered that more discretion has to be
given to parents in disciplining their kid, and get the message
across that they shouldn't be doing these things.
2:19:52 PM
MR. PATMOR related that as a child his father convinced him with
the back of his hand that he shouldn't smoke cigarettes. He
remarked that a parent can influence their kids regarding what
they are going to do and who they hang out with, but if the
parent faces the possibility of going to jail over it a lot of
parents won't even try to discipline their kids. He pointed out
that parental discipline will be the main factor in deciding how
many kids use pot and its derivatives.
2:20:54 PM
CAPTAIN ANNA YOUNG reiterated Representative Nageak's comments
spoken on the House floor in that there is no comparison between
marijuana and alcohol, and they should not be compared or ruled
on in the same manner. She said she agrees with Representative
Nageak in that prisons are overrun with non-violent offenders
and the court system is jammed up with non-violent criminals.
Alaska should try to eliminate this problem and look at the
violence toward women and children rather than worrying about
pot smokers that are not damaging anyone. She advised that in
2000, she ran for Congress on the platform of legalizing
industrial hemp which was associated with pot and, therefore,
went down. She noted that Colorado has received a lot of money
from industrial hemp and Alaska could do the same. She remarked
that she would like to have a choice at the pumps with her
medicine, her food, and able to grow industrial hemp and pot for
uses that are well documented. Alaskans, she stated, are
becoming disenchanted with Juneau as they vote for things that
never happen, such as, moving the Capitol three times. The
voters spoke regarding legalizing marijuana and she described it
as being picked apart whereas a lot of the state will not be
eligible for this legalization, such as Cordova because it is
not in a borough, and as a resident of Cordova rejects this part
of the planning.
2:23:49 PM
KEN ALPER, Director, Tax Division, Department of Revenue,
referred to the discussion regarding legal limits and the
difference between the various bills. He suggested that a
potential solution would be to make volumes in excess, of
whatever the legislature chose, subject to the excise tax on
marijuana. He explained that the $50 tax in the initiative is
subject to the grower at their first sale to a wholesaler or a
retailer, and that tax could also be put upon the person who
possesses an illegal amount.
2:24:54 PM
CHAIR LEDOUX said that SB 30 was held over.
2:25:08 PM
CHAIR LEDOUX advised there will be another committee substitute
for SB 30 based upon the testimony of Ms. Franklin and the
overwhelming public testimony, and that it will follow in the
approach of the Senate Judiciary Standing Committee.
2:25:48 PM
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