Legislature(2015 - 2016)BARNES 124
02/12/2015 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| Presentation: Municipal Regulation of Marijuana | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
February 12, 2015
8:02 a.m.
MEMBERS PRESENT
Representative Cathy Tilton, Chair
Representative Paul Seaton, Vice Chair
Representative Shelley Hughes
Representative Lora Reinbold
Representative Harriet Drummond
Representative Dan Ortiz
MEMBERS ABSENT
Representative Benjamin Nageak
COMMITTEE CALENDAR
PRESENTATION: MUNICIPAL REGULATION OF MARIJUANA
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
CYNTHIA FRANKLIN, Director
Alcoholic Beverage Control Board (ABC Board)
Department of Commerce, Community & Economic Development (DCCED)
Juneau, Alaska
POSITION STATEMENT: Presented local option control of
marijuana.
LAWRENCE BLOOD, Local Government Specialist, Acting Director
Division of Community & Regional Affairs (DCRA)
Department of Commerce, Community & Economic Development
Juneau, Alaska
POSITION STATEMENT: Offered a presentation explaining the
vested powers of a municipality from the Alaska State
Constitution and Alaska Statutes not addressed in AS 17.38.
TIM HINTERBERGER, Ph.D., Chair
Campaign to Regulate Marijuana like Alcohol in Alaska
Anchorage, Alaska
POSITION STATEMENT: During the hearing on local community
marijuana issues answered questions.
RACHELLE YEUNG, Legislative Analyst
Marijuana Policy Project (MMP)
Washington, D.C.
POSITION STATEMENT: During the presentation, offered legal
support for the Campaign to Regulate Marijuana like Alcohol in
Alaska, and answered questions.
ACTION NARRATIVE
8:02:45 AM
CHAIR CATHY TILTON called the House Community and Regional
Affairs Standing Committee meeting to order at 8:02 a.m.
Representatives Hughes, Reinbold, Ortiz, Drummond, Seaton, and
Tilton were present at the call to order.
^Presentation: Municipal Regulation of Marijuana
Presentation: Municipal Regulation of Marijuana
8:03:22 AM
CHAIR TILTON announced that the only order of business would be
presentations related to the municipal regulation of marijuana.
8:04:52 AM
CYNTHIA FRANKLIN, Director, Alcoholic Beverage Control Board
(ABC Board), Department of Commerce, Community & Economic
Development (DCCED), said that the ABC Board or Marijuana
Control Board, if created, can procure local option regulations
clearly from AS 17.38 as there is authority to create the type
of menu present in Title 4 for local governing bodies when it
comes to regulating alcohol in their community. The biggest
priority, she opined, is to have a similar menu of local options
for marijuana and the same entities hold elections and create
local option rules for their community through Title 4 and be
the type of local governing body that can opt in or out through
Title 17. Local government is defined in AS 17.38.900(4), which
read:
(4) "local government" means both home rule and
general law municipalities, including boroughs and
cities of all classes and unified municipalities;
MS. FRANKLIN maintains there is a glaring omission of
"established villages." She explained that "established
villages" are entitled under Title 4 "to hold local option
elections and create local control of alcohol in their
communities," and explained that in the event the legislature
does not act on the definition of local government in Title
17.38, "established villages" will not be included in that
definition.
8:06:49 AM
MS. FRANKLIN further explained that AS 17.38.110, "Local
Control," uses the term "local governments" throughout the
section and defines local governments to exclude "established
villages." She opined there is a concept of amending that
definition to add "established villages" as they are defined in
AS 04.21.080(a)(9), which read:
(9) "established village" means an area that does not
contain any part of an incorporated city or another
established village and that is
(A) an unincorporated community that is in the
unorganized borough and that has 25 or more permanent
residents; or
(B) an unincorporated community that is in an
organized borough, has 25 or more permanent residents,
and
(i) is on a road system and is located more
than 50 miles outside the boundary limits of a unified
municipality, or
(ii) is not on a road system and is located
more than 15 miles outside the boundary limits of a
unified municipality;
MS. FRANKLIN continued that AS 04.21.080(a)(9), "established
village" means an area that does not contain any part of an
incorporated city or another established village, with a list of
other qualities of an established village including areas both
inside and outside incorporated boroughs and unincorporated
communities, that are in and out of organized boroughs.
8:07:42 AM
MS. FRANKLIN commented that Mr. Blood will discuss all of the
different structures of local governments in Alaska. She said
it will be clear there are many areas in Alaska that would be
able to hold a local option election for alcohol, but as written
would not be able to hold a local option election for marijuana.
She expressed that is a concern particularly if the Alcoholic
Beverage Control Board (ABC Board), or Marijuana Control Board
is sharing resources. She pointed out that it is unknown what
the board structure will look like but if there is a
relationship between those two agencies, she foresees it being
very difficult to tell a local community it can have an option
election for alcohol, but not marijuana. She offered that a
concern of all of the state legislators and state agencies is
not to subvert the intent of the voters or language of the
initiative. However, she opined, if the intent is clear to make
the local governing structures mirror those that are able to
hold Title 4, local options alcohol elections, certainly [the
legislature will] make this Act in the local option piece look
like alcohol. She posited she does not have any indication that
this omission or different definition of local government was on
purpose and does not know why this definition was chosen for AS
17.38. Nevertheless, she submitted, if the intent was to
include every local governing body able to hold alcohol
elections, it would be difficult for anyone to argue that the
legislature subverted the intent of the initiative.
8:10:27 AM
MS. FRANKLIN noted that the ABC Board is meeting today and will
discuss marijuana and believes the board will produce its
preliminary considerations. She offered that on February 24,
2015, when the Act becomes effective, a direction of the board
will be to preserve local control of marijuana. The board will
publically state it is considering a menu of local options
similar to the menu found in Title 4. She pointed out that the
two substances are different and the menus will not be
identical. A lot of thought is needed regarding types of
licenses available and how those licenses look, and it may be
that the menu for local communities is by license types, she
explained. In other words, she advised, a community can go down
the list to determine the types of licenses it will allow. A
major difference between Title 4, "Local Option Elections," and
any local elections held under AS 17.38 will be that the option
does not exist for local communities to be in possession of
marijuana due to the line of Supreme Court cases and the
initiative. Unlike local option 5, Title 4 for municipalities,
allows a municipality to ban alcohol in every form, including
possession - no local community will be able to ban marijuana in
every form. She anticipates it will be a frustration for local
communities and some smaller communities that want the substance
kept out of their community. Due to Ravin v. State, 537 P.2d
494 (Alaska 1975), and Noy v. State, No. A-8327, August 29, 2003
(Alaska), there is a constitutional right of privacy to possess
this substance in a person's home and in that regard no local
government or the people themselves can vote to completely ban
that substance in their community. That issue will affect the
way the menu of local options is written as it will have to be
clear what the parameters of those options are, and what a
community can and cannot do. Certainly, she offered, the Act
entitles the local government, as defined in AS 17.38, to
prohibit cultivation and retail licenses as that is the language
of the Act. In moving forward, she related, that is the manner
she anticipates that regulations or statutes might be crafted to
make it clear exactly what activities the local community is
opting out of.
8:14:21 AM
REPRESENTATIVE DRUMMOND referred to a list of communities
provided by Mr. Blood [to the committee], of which the front
half, she assumed, is everything except "established villages."
She noted the list of villages in the back refer
"unincorporated," and advised she will address Mr. Blood with
her questions.
8:14:56 AM
REPRESENTATIVE REINBOLD asked whether federal law trumps state
laws in regulations.
MS. FRANKLIN explained that federal law will not apply to these
regulations because marijuana is a Schedule I Controlled
Substance in federal law. In that regard, all activities
relating to marijuana are prohibited and no regulations are
written around the substance. She remarked that the federal
government released a [8/29/13, Memorandum for all United States
Attorneys, from James M. Cole, U.S. Deputy Attorney, regarding
Guidance Regarding Marijuana Enforcement], also known as the
"Cole Memo," that was overlaid on top of a memorandum released
when President Barak Obama took office explaining the federal
enforcement priorities for marijuana. The basic language of the
memo reads that if individual states legalize the substance then
it is not a federal priority to enforce the federal prohibition
against marijuana for any entity following strict rules enforced
by the states. She submitted that when a state legalizes
marijuana and creates regulations and rules around that
substance, and the person dealing with marijuana is complying
with those rules, then the federal government essentially
pledges it will not interfere with activity that is otherwise
lawful in the state.
8:16:42 AM
REPRESENTATIVE REINBOLD found Ms. Franklin's remarks
interesting, and she said that in this case as long as it is
regarding marijuana it is "state's rights," except recently the
federal government struck down the Alaska State Constitution.
She related there is an intriguing philosophy in the White
House.
MS. FRANKLIN agreed that it is an awkward position for all
legalized marijuana states to be in, although aside from the
four states with legalized recreational marijuana there are
approximately 20 states with legalized marijuana in some form of
medical marijuana. There is a dilemma between the state and
federal primacy rules that necessitates resolution and Alaska is
hanging precariously between the two sets of rules, she
remarked.
8:17:57 AM
REPRESENTATIVE SEATON said that within other bills changing the
local option in Title 17 to that of Title 4, has occurred where
the term license is used ... change that to license because it
is what is being done with alcohol. He advised there has been
severe pushback for registration rather than license, and asked
that Ms. Franklin contrast the two for him. "Or have you not
found that ... has that pushback ... in declaring that we're
unconstitutionally changing the bill gone away over the type of
discussions."
MS. FRANKLIN replied that she has not heard there is a strenuous
objection to changing registration to license. Frankly, she
opined, she would be surprised if the group putting forth the
initiative will publically say they fully intended to leave
giant chunks of Alaska out of the ability to opt out of this
substance in their community. She said she suspects that the
initiative didn't have the necessary vetting within the area of
initiatives as, she related, the vetting process is generally
running through a mill of lawyers and experienced legislators to
prevent omissions. Basically, she explained, the legislature
would say, if a person lives in a large enough city they can
choose to prohibit marijuana conduct in their community, but a
smaller community is out of luck and has marijuana whether it
wants it or not. She described this issue as requiring a
necessary fix and expressed her surprise that the difference
between "registration" and "license" has had a lawsuit
threatened over that change. She advised she will look into
Representative Seaton's comments.
8:22:05 AM
REPRESENTATIVE SEATON offered to share documents with Ms.
Franklin. He then referred to Alaska's communities inside and
outside of boroughs identified for revenue sharing, and asked
whether that subset of villages and communities sit within the
qualifications, or whether it was a village as an Alaska Native
village she was discussing.
MS. FRANKLIN responded that the definition for "established
village" in Title 4 attempts to bring in every group of over 25
people who draw a line around their community as an established
village. She then deferred to Mr. Lawrence Blood on how this
definition of "established village" interacts with the
definition used with revenue sharing.
8:24:00 AM
CHAIR TILTON, with regard to the initiative, asked whether
municipalities can choose the types of products they allow to be
produced or sold within its jurisdiction, or must municipalities
allow all products to be sold, such as edibles.
MS. FRANKLIN opined that it will hinge upon the definition of
marijuana, and Representative Seaton has a bill carving out
marijuana concentrates. Alaska Statute 17.38 defines marijuana
as including concentrates and, she pointed out, in other
legalized states there is not a distinction in licensing between
different types of products using concentrates to make the
marijuana products. In other words, she offered, a retail
license in Colorado entitles a retailer to sell all types of
products other than just the actual flower and bud themselves,
and noted all other products are made using concentrated
marijuana. Currently, she pointed out, it is hard to say
whether or not there will be separate licenses issued for
products using marijuana concentrates. She opined that by
including all of those materials in the definition of marijuana
in AS 17.38, every rule including those under AS 17.38.010 Local
Control appears to be around whatever is contained in that
definition. She explained that an issue not being discussed
with local governments is that there is Local Option 1, which
permits a local community to run its own alcohol retail outlet.
She said that should an established village or municipality run
its own marijuana store it could determine the products it would
sell in that store. She conveyed that while the federal issue
exists she doubts municipal attorneys will allow or encourage
their municipalities to have retail sales of a federally
prohibited product. In moving forward, using the model in Title
4, the legislature could create the option for a local community
to control retail sales of the product by having a community
store, she explained. She described it as a good avenue in
which to get the funds expended toward that product back into
the community, and noted there are a couple of communities with
alcohol Local Option 1 such as Kotzebue where it runs its own
liquor store and the cost of that substance being in their
community is somewhat offset by the sales of the store.
8:28:03 AM
MS. FRANKLIN remarked that if a community invites retailers in
to sell marijuana products with a state license or conditional
use permit at the municipal level, the city could write a law
authorizing a person to sell flower and bud but not edibles.
She submitted there could be a problem with AS 17.38.110(b),
which read:
(b) A local government may enact ordinances or
regulations not in conflict with this chapter or with
regulations enacted pursuant to this chapter,
governing the time, place, manner, and number of
marijuana establishment operations. A local government
may establish civil penalties for violation of an
ordinance or regulation governing the time, place, and
manner of a marijuana establishment that may operate
in such local government.
MS. FRANKLIN said that there would be issues with the local
government carving out and making a different scheme of how
marijuana is defined and regulated, than what this law says and
whatever amendments the legislature makes during this session.
Individual owners of retail establishments, of course, can
decide what products they stock. She posited that one approach
to the edibles the board may endorse is to define edible, which
is not defined in the Act, and in defining edibles exclude
certain types of edibles that are "worst offenders." She
offered that in Colorado "adulteration" is when existing edible
products are removed from its packaging and sprayed with
marijuana and repackaged. The term adulteration is currently in
Alaska's food safety statutes and the board is cognizant to not
confuse the public by reusing terms that already have set
definitions in state law, she related. For purposes of this
discussion, she said she is using the term adulteration and
basically asking why edibles could not be defined to exclude
those adulterated products in that edibles would still be
allowed to be made through a process that includes marijuana
concentrates and can be sold as marijuana infused products.
Thereby, she remarked, not allowing someone to take a short cut
that, in Colorado, has led to risks of public safety with
products like gummy bears, little "dubbies," and products
appealing to children. She indicated there are strategies in
terms of serving sizes, education, and ascertaining that people
who buy these products know what they are getting.
8:31:11 AM
REPRESENTATIVE SEATON noted that edibles appear to be of concern
to people in small villages as well as the larger cities. He
opined that some jurisdiction having legalized use requiring the
product to come before the board for approval prior to selling.
He asked whether there is a reason for selecting the one that
says a person is free to generate any product that doesn't
violate a certain provision versus approval from the board prior
to selling.
MS. FRANKLIN replied that Representative Seaton's question is an
excellent example of parsing out this work as to the
legislature's job, and the job of the regulations and the
legislature could determine a definition of edibles that does
not include adulterated products. When regulations are
promulgated the board can require a pre-approval process for
edibles on the shelf such that Washington State Liquor Control
Board requires. Whereby, she pointed out, a sample of the
prospective product must be brought before the board to obtain
approval so it does not violate a set of standards established
through regulation, including not being blatantly appealing to
children or whatever. "I think you can have both," she offered.
8:33:33 AM
REPRESENTATIVE SEATON asked whether that will be discussed today
during the ABC Board meeting as it would be helpful for the
legislature to know what kind of system the current board may
put in place.
MS. FRANKLIN responded in the affirmative.
8:34:04 AM
REPRESENTATIVE REINBOLD put forth her concern that health care
costs are rising and there are issues within other states
regarding overdoses. Secondly, she pointed out, if a child
ingests some of the edibles and there is a health care issue,
who is liable. She hopes someone can help the legislature with
the packaging and display issues of what can go on the package
and display that is very obvious to people.
MS. FRANKLIN responded that packaging, advertising, and display
are the heart of promulgating regulations around the substance,
and the board anticipates labeling, packaging, and child proof
packaging requirements. She related that in determining
liability, the parent brought the product into the home and
allowed the child access, which is the main cause of all
overdoses and poisonings in children. Frankly, she related, the
doctors from the Colorado Children's Hospital said that while
marijuana overdoses in children are very public and a concern,
they are an extreme minority in the types of poisoning and
overdoses seen in the emergency rooms, as many more children
overdose from Ibuprofen than from marijuana. She said, Alaska
does not want that to happen, wants the child proof packaging,
and that no one is permitted in marijuana establishments unless
they are 21-years of age. She said the security they saw in
Colorado (and would like to emulate) was quite high, and was not
a situation as in Alaska where a parent can walk into a liquor
store with their young child. She pointed out that she would
discuss with the board today the concept of high security with
these establishments, over 21-years of age only, and for adults
that enter the store, as it would not be like a Fred Meyer or
Carr-Gottstein situation where products are sitting out on the
shelf.
8:37:57 AM
REPRESENTATIVE REINBOLD said to keep in perspective that this is
a new market and marijuana will be available in the retail
market and the statistics have not yet been borne out.
8:38:31 AM
REPRESENTATIVE ORTIZ opined that the intent of the initiative is
to treat marijuana like alcohol, yet realize the substances are
quite different issues. He asked how problematic it is to go
down the road of saying the legislature is going to try to treat
marijuana like alcohol when they truly are different issues,
particularly around regulations, and questioned how problematic
the issue is, and whether it would be in the best interests of
the state to allow the ABC Board to regulate this area - or
whether a Marijuana Control Board would be best.
MS. FRANKLIN replied that a separate board is appropriate as the
two substances are quite different with industry representation
on the all-volunteer ABC Board. She voiced concern that by
adding industry representation to the ABC Board it would
suddenly became four industry representatives and three public
representatives which is unbalanced. She advised it is the
opinion of the ABC Board that the Marijuana Control Board be
comprised, as Title 4 stakeholders have recommended, of a five
member volunteer board. She further advised there is value in
the state employees currently servicing the ABC Board and
bringing their expertise to the regulation of marijuana. She
pointed out that the ABC Board's official position is advocating
for a "two board and one agency hybrid" that would allow a
Marijuana Control Board and ABC Board both housed with the same
agency and staff so an enforcement officer could enforce on both
substances, which represents a fiscal savings to the state. In
terms of local control, she said, there is a lot of control in
alcohol as there have been two audits, a survey, and a
stakeholder's work group in the last five years regarding
alcohol, and they have not received any feedback that localities
don't feel they have enough control. She commented that they
have a good model for local control with alcohol under Title 4
which, hopefully, is what local control of marijuana would look
like. She said she recognizes there are marijuana establishment
situations wherein a parent could not take their child into the
establishment. The legislature can settle issues particularly
around definitions and some issues that require regulations, and
statutes and regulations will not be perfect in the first year.
Alcohol, she noted, is not perfect yet and the board has worked
on it for a very long time. She offered that her answer is two
boards.
8:43:05 AM
REPRESENTATIVE DRUMMOND referred to packaging and overdose cases
in Colorado, and asked whether she is aware of alcohol overdose
cases of children in Alaska.
MS. FRANKLIN said she is not aware of that situation and
ascertained through the doctors at Children's Hospital that
parents typically do not bring children who overdose on alcohol
to the emergency room because most people know what an alcohol
overdose looks like and that there will be a period of time
where the body will process the alcohol through, unlike a severe
alcohol overdose. She expressed that education is imperative
around marijuana for adults using the substance to understand
dosages, serving sizes, and wait times. She described Colorado
as being behind the train because it had medical marijuana
dispensaries open for four years before opening the market to
recreational marijuana so there were already medical marijuana
users with high tolerances to marijuana which lead to changes in
the packaging, advertising, and education of consumer
requirements. She opined that Alaska can get in front of the
train by not allowing stores to sell high concentration and high
doses of THC by limiting serving sizes by limiting the total THC
in any given product.
8:47:22 AM
REPRESENTATIVE DRUMMOND inquired as to what a child proof
alcohol container looks like.
MS. FRANKLIN responded she has never seen one which is another
area where regulation of this product will look different.
People have argued that if Alaska could start over with alcohol
possibly there would be some of the same considerations. She
pointed out that it demonstrates that once the train has left
the station it is hard to get it back. A piece of advice
received from the regulators in Colorado was to start strict
because Alaska will not be able to dial it back, she stated.
8:48:23 AM
REPRESENTATIVE HUGHES offered that there has been work performed
in the last couple of years to rewrite Title 4 and she asked
whether there is anything from that process Ms. Franklin learned
that will be applicable and that she would advise the committee,
including how the state relates to local government.
MS. FRANKLIN referred to a local options subcommittee as part of
the stakeholder's group and, she said one recommendation was to
eliminate Local Option 4, which controls sale, distribution,
trade, manufacture of alcohol in a community allowing
possession. In putting Local Option 4 up against Ravin v.
State, 537 P.2d 494 (Alaska 1975), Noy v. State, Alaska App. 83
P.3d 538, 2003 WL 23207968 (2003), and AS 17.38, means that
Local Option 4 is the best the community can get because
possession cannot be banned. The local option subcommittee heard
that local communities are frustrated that the substance can be
in the community which in turn causes enforcement to be
difficult for all of the other verbs relating to that substance
that are prohibited in the community, she conveyed. She pointed
out that some of the recommendations reflected penalties
addressing profit motivation in that when individuals violate
those rules that the penalties are written to address the
motivation behind that activity - to make a lot of money such as
bootlegging. Currently, under the rules in Title 4, if an
individual brings in one bottle and sells it to a person, that
individual is subject to the same penalties as if they brought
in one case of liquor. She explained that some of the work of
the stakeholder's group was to adjust the penalties so that the
more a person brought in the higher the fine because profit
motive is what is behind that activity. The stakeholder's group
takes the board as it exists today and tweaks it to have public
safety and public health designees openly represented on the
board. In terms of marijuana, that regulation will be
particularly important to have all of the voices at the table
when the board meets.
8:52:23 AM
REPRESENTATIVE SEATON referred to fines and asked whether she
meant that a fine would be imposed instead of revoking the
license if someone is operating outside the parameters of their
license.
MS. FRANKLIN explained that she was talking about non-licensed
activity.
8:53:11 AM
The committee took a brief at ease.
8:54:20 AM
LAWRENCE BLOOD, Local Government Specialist, Acting Director,
Division of Community & Regional Affairs (DCRA), Department of
Commerce, Community & Economic Development, said a primary
charge of the Division of Community & Regional Affairs (DCRA) is
to assist and advise municipalities within the State of Alaska.
He said he would explain the vested powers of a municipality
from the constitution and statutes not addressed in AS 17.38.
He referred to slide 1, and advised the presentation would also
include examples identifying questions not answered in the
initiative, whether the excise tax means a property tax cannot
be levied on a facility and property, whether it means a sales
tax cannot be levied, and whether there is any authority on
where the cultivation facility is located on different sides of
a railroad track. He said his response to the questions are "it
all depends," upon the classification of municipality, location
of the municipality, and its authority to assume different
powers. He reiterated that the public should be informed as to
the vested powers of a municipality from the Alaska State
Constitution and already in statute not addressed in AS 17.38.
8:56:03 AM
MR. BLOOD continued his slide presentation and referred to slide
2, "Types of Municipal Government," and advised there are 145
cities, 19 organized boroughs, 80 unincorporated communities in
organized boroughs, and 73 unincorporated communities located in
the unorganized borough. The first part of the document "sheet"
[Community Name, Current Population, Incorporation Type,
Borough/Census Area], represents municipalities with the second
part being unincorporated. Unincorporated communities include
tribal governments, and unincorporated communities with a non-
profit that are providing some kind of municipal type services.
These numbers, which could be higher, represent communities
inside and outside the borough that could potentially qualify
for community revenue sharing. Mr. Blood responded to
Representative Seaton's earlier question, and said that within
Title 4 the definition of community is 25 individuals in a 5-
mile radius around the post office, and community revenue
sharing is 25 people living as a social unit. Unincorporated
communities are one of CRA's biggest issues in that there are no
defined boundaries, and depending upon the program or the
context, it is a difficult question to answer as to how many
communities exist in Alaska.
8:58:39 AM
MR. BLOOD referred to slide 3, "Classification of Cities and
Boroughs," and offered that there are three classification of
city governments and that the classification and location of
cities are significant in terms of the powers and duties. He
explained that a home-rule city has all of the legislative
powers not prohibited by law or charter, and first-class and
second-class cities being general law in which the state law
defines their powers, duties, and functions. Slide 4, "City
Governments in Alaska," he said, depicts each classification of
cities and the importance of understanding whether a city is in
an unorganized or outside of an organized borough is how it is
treated under law. Slide 5, he said, depicts four
classification of organized boroughs in that the classification
of boroughs are significant in terms of the powers and duties,
whereas with the city it was classification and location. Slide
6, "Organized Boroughs in Alaska," he indicated shows how many
borough are in Alaska and the different classifications. Slide
6, "Provisions Applicable to All Local Governments," he pointed
out are the general law municipalities that have many powers
dictated by Title 29. However, he remarked, the Alaska State
Constitution provides for maximum local self-government with a
minimum of local governing units and preventing duplication of
tax levying jurisdiction "a liberal construction shall be given
to the powers of local government units." He described the
following as powerful statements restated in AS 29.35.400, "a
liberal construction shall be given to all powers and functions
of a municipality," and further stated in AS 29.35.410 "Extent
of powers: Unless otherwise limited by law, a municipality has
and may exercise all powers and functions necessarily or fairly
implied in or incident to the purpose of all powers and
functions." He reiterated that these are powerful statements
because in a majority of the states, municipalities are given
specific duties and powers by the legislature. The State of
Alaska is much different in that it provides broad powers by
municipalities to exercise local control outside of the
[provisions] in AS 17.38. While general law local governments
have broad powers, home-rule local governments have even greater
powers, he remarked.
9:02:47 AM
MR. BLOOD referred to slide 8, which read: "Article X, Section
11 of the Alaska State Constitution provides that: a home-rule
borough or city may exercise all legislative powers not
prohibited by law or by charter." Slide 9, "Distinctions
Between General Law Boroughs," he related is that there is a
principal distinction between a first-class borough and a
second-class borough relating to authority to assume powers. He
stated that a first-class borough may exercise any power not
prohibited by law on a non-areawide basis (the area outside of
the city municipal boundaries), and a second-class borough must
gain voter approval for the authority to exercise many non-
areawide powers. On the other hand, he pointed out, home-rule
boroughs can exercise on an areawide basis. Slide 9, he stated
that the duties and powers of cities depend upon the
classification and city duties and powers also vary in terms of
location within or outside of an organized borough. In many
cases, he explained, if a second-class city is in the
unorganized borough it has greater powers at its disposal. He
remarked that all local governments have certain fundamental
duties such as, conducting local elections and holding regular
meetings, beyond this, duties and powers of municipalities vary
considerably. Second-class cities are not obligated by law to
provide any particular service, he said. Second-class cities
are not required by law, like the other classifications of
cities and boroughs, to perform actions, however, the Alaska
State Constitution and statutes give them the ability to assume
those powers, he offered. Where they find themselves in between
those two ends of the spectrum is local control, he pointed out.
9:05:24 AM
MR. BLOOD referred to slide 11, and said that all organized
boroughs, as well as home-rule cities and first-class cities in
the unorganized borough must exercise planning, platting, and
land use regulations, which refers to what side of the track a
cultivation facilities is located is through zoning codes and
land use regulations. Second-class cities in the unorganized
borough are permitted, but not required, to exercise planning
powers which is where DCRA assists second-class cities because
not all exercise its planning powers, he advised. Home-rule
cities, first-class and second-class cities in organized
boroughs may exercise planning, platting, and land-use
regulation powers only if those powers have been delegated to
them by the borough because all boroughs are mandated by state
law to exercise planning and platting, he stated. However, they
can delegate those to the cities if they so choose, and the
cities must consent to that delegation, however, should the
borough revoke that delegation it does not require the consent
of the city, he conveyed. Organized boroughs have the duty to
collect municipal property, sales, and use taxes, levied within
their boundaries, he explained, otherwise municipal powers are
exercised at the discretion of local governments. Slide 12,
"Powers and Duties of Cities," he said is a "cheat sheet"
depicting the rules of home-rule cities, first-class cities,
second-class cities and [authority] references. He used the
example of planning, platting and land use regulations and how a
particular city or borough acquires those powers. With
reference to slides 13-14, "Powers and Duties of Organized
Boroughs," he said it comes down to whether or not it is an
unorganized borough of the borough. He offered, as an example,
planning, platting and land use regulations in that the borough
must exercise powers areawide, however, it can delegate. The
property tax and sales tax is different depending upon which
class of borough a person lives in and the way it applies to the
cities.
9:09:28 AM
MR. BLOOD referred to slide 15, "Powers of Unincorporated
Communities," and related that unincorporated communities have
no planning, taxing, or policing powers. He stated that the
[slide 2] depicts municipalities and also the unincorporated
communities that are in no manner referenced in AS 17.38, unlike
Title 4. He explained that Title 4 unincorporated communities
or what is defined as established villages have the option of
adopting a local option whether it is inside or outside an
organized borough as it doesn't matter - just an organized
village of 25 people can opt to have a local option, and under
AS 17.38 they have no options. In addition to not having any
powers under AS 17.38 they have none of the municipal powers
that the municipalities exercise, such as, planning, platting,
land use regulation, and taxation, he pointed out. However, the
unincorporated communities inside an organized borough are
governed by the areawide and non-areawide powers of a borough,
and those policies could be covered by the borough, he
explained. Unincorporated communities outside an organized
borough could only regulate marijuana in accordance with a
legislative enactment. He reiterated that unincorporated
communities have no planning, taxing or policing powers and also
no boundaries. Slide 16, "Unincorporated Community Boundary
Examples," he offered explains how a community is defined that
is not a municipality. The established village under Title 4 is
the five-mile radius around the post office, or the census
designated place (CDP) which is a concentration of population
identified by the U.S. Census Bureau for statistical purposes -
CDP's are populated areas that lack a separate municipal
government but otherwise physically resemble an incorporated
place. He remarked that a community for community revenue
sharing is a place not incorporated as a municipality in which
25 or more individuals reside as a social unit. He said his
point to this slide is that unincorporated communities do not
have boundaries.
9:13:15 AM
REPRESENTATIVE HUGHES asked in areas where there are 25 or more
people that build homes in the same general area, whether they
automatically become an established village once it reaches that
point due to the census process or whether it is something the
community applies for as there may not be a post office.
MR. BLOOD advised that within Title 4 it does not necessarily
have to have a post office because within the definition it
states that it could be another identified facility, such as, a
store, school, or something else. He reiterated that regarding
community revenue sharing, for example, 25 people does not
necessarily establish that village, wherein if it is in an
unorganized it is 25 people living as a social unit. He stated
an organized borough requires 25 people living as a social unit
providing three of five listed municipal type services in
statute, and it must provide or substantially pay for it so
there is a difference between organized and unorganized even for
the unincorporated communities, he stated.
9:15:17 AM
REPRESENTATIVE HUGHES referred to slide 12, and suggested adding
on the left column an alcohol and marijuana box, and moving
across the top adding established villages. She asked Mr. Blood
to walk through for home-rule city, first-class city, second-
class city, and established villages the present situation with
alcohol and the same with marijuana under the initiative
language.
MR. BLOOD referred to the alcohol box and unincorporated
community and municipalities, and said they are entitled to
adopt a local option through the petition process that is in
accordance with Title 29 for a municipality. However, a major
difference is the number of required signatures on the petition,
under Title 29, for a citizen's initiative it is 25 percent, and
for the local option it is 35 percent. All municipalities and
unincorporated communities throughout the state are allowed to
adopt a local option, which is not true for AS 17.38 as it is
currently written. He remarked that under AS 17.38
municipalities can adopt a local option by either ordinance or a
petition and unincorporated communities are completely left out
of AS 17.38.
REPRESENTATIVE HUGHES requested not only the above, but to
include taxation and any other powers granted to those different
categories of cities.
MR. BLOOD responded that for taxation all municipalities have
broad taxing authority in that they are able to levy a tax and
remit it back to the city. The level of taxation it may be able
to tax is dependent upon the classification and whether or not
it is located inside or outside of a borough, he conveyed.
Unincorporated communities, tribes, and non-profits have no
taxing authority, he remarked.
9:18:27 AM
REPRESENTATIVE HUGHES asked Mr. Blood to summarize anything else
such as, policing, planning and all of the different issues that
may relate to alcohol and marijuana for the different
categories.
MR. BLOOD advised that the quickest summary and rule-of-thumb is
that all municipalities have all the implied powers not
expressly prohibited by law, and unincorporated communities have
nothing.
9:19:14 AM
CHAIR TILTON asked if a slide included a reference of
established villages under Title 4, would that be sufficient
enough to allow the unorganized communities. Also, she
questioned, whether it is correct that the legislature
functionally will act as the assembly for the unorganized
boroughs.
MR. BLOOD answered that functionally the legislature does in
many aspects serve as the assembly for the unorganized borough
and can enact any laws it desires. He submitted that a problem
with adding established village to AS 17.38 is possibly that an
established village cannot adopt an ordinance as it would have
to be through the petition process and run the election through
the Division of Elections under Title 4.
9:20:18 AM
REPRESENTATIVE SEATON noted that previous testimony was of some
villages looking for a "25-mile buffer zone." The established
village can use a CDP as its "area" and asked whether that means
an established village has the CDP area if it would opt out for
the census designated area.
MR. BLOOD replied that it is a difficult question in that there
is no uniform size for a census designated place, for example,
Elfin Cove which the CDP is a small area which incorporates
Elfin Cove itself, however, the residents of Elfin Cove are on
Indian Island, Idaho Inlet, and different areas around. So the
25 people living as a social area is much larger than the actual
census designated place. On the other end of the spectrum, he
said, there is the Deltana CDP which is half the size of the
State of Rhode Island. He expressed there are many communities
that could be located inside that census designated place.
Since unincorporated communities have no boundaries, he has not
been able to find a perfect fit to say "this is what a community
is," he related. Since DCRA performs the community data base
online, it struggles with the question of "what is a community,"
and each time they believe they have an answer they have to
change the answer because it doesn't fit another community
around the state.
9:22:38 AM
REPRESENTATIVE SEATON questioned whether under Title 4 if these
communities are able to opt out of alcohol, where are they
opting out of.
MR. BLOOD responded a five-mile radius around the post office or
other designated facility, and there are considerations of
making that a ten-mile radius.
9:23:06 AM
REPRESENTATIVE REINBOLD referred to his comments regarding the
powers of responsibility for boroughs, unorganized boroughs and
cities, and asked who is addressing the powers of employers, the
state or private sector, that does not allow marijuana in their
system.
MR. BLOOD opined that the first portion of AS 17.38 reads that
nothing in this statute prohibits the state or employers from
having drug free rules in the work place regulations, or
communities receiving a federal grant regulations, but he would
like to follow up with his answer.
REPRESENTATIVE REINBOLD asked whether there is anything the
legislature needs to strengthen for the powers of the state or
private sector employers with marijuana.
MR. BLOOD replied that definitions are important such as, how is
"one ounce" measured, and the definition of "public." He stated
that having definitions and terms in statute takes away
uncertainty when being interpreted.
9:25:46 AM
CHAIR TILTON advised Representative Reinbold that these are
issues she has been discussing with the Alaska Municipal League
and other attorneys to determine definitions and will bring them
before the committee.
9:26:05 AM
REPRESENTATIVE ORTIZ said in following up with Representative
Reinbold's question, asked whether the answer includes a
landlord deciding there would be no marijuana on their property.
MR. BLOOD deferred to Ms. Franklin as he did not know whether
that issue is considered under Ravin v. State, 537 P.2d 494
(Alaska 1975).
9:26:52 AM
REPRESENTATIVE DRUMMOND commented that the legislature will be
acting as an assembly for the first time for the unorganized
borough, and she opined it may have to determine land use
regulations and local taxing. She called attention to the
initiative which put forth that the state will impose a $50 per
ounce tax and questioned whether local communities with taxing
powers will be able to add an additional tax, or will all the
taxes collected on an ounce of marijuana have to total $50 and
divide it differently.
MR. BLOOD answered in the affirmative, unless it is specifically
prohibited by law those municipalities may exercise all the
implied taxing powers. Should a sales tax be levied, he said he
could not see any reason it would not be mandatory that it also
levy that same sales tax on the sale of marijuana products
because the municipalities have to levy a tax and then provide a
list of exemptions. In the event marijuana is not a listed
exemption and it is a retail sale, he could not see a reason the
sales tax could not be levied. Also, he opined, if a
municipality levies a property tax the facility and land would
be subject to the city or borough property tax.
9:29:47 AM
TIM HINTERBERGER, Ph.D., Chair, Campaign to Regulate Marijuana
like Alcohol in Alaska, in response to earlier testimony advised
that the intention of the initiative is that local control of
marijuana should quite closely mirror local control of alcohol
in Alaska. The omission of "established village" wasn't meant
to exclude any local government that has the ability to regulate
alcohol use in its community and, in fact, during the campaign
they attempted to make it clear, he stated.
9:31:39 AM
REPRESENTATIVE REINBOLD noted that Alaska has a high percentage
of alcoholics together with a high rate of traffic related
accidents related to alcohol, and a high rate of teen-age drug
and alcohol abuse. She contends that Alaska has not done a good
job regulating alcohol and questioned why Alaska should regulate
marijuana like alcohol.
DR. HINTERBERGER agreed that alcohol has been a serious problem
for many people in Alaska and elsewhere, but it is important to
remember that marijuana shares few of the pharmacological and
toxicological properties of alcohol. He analyzed that
marijuana's methods of use and behaviors induced by its use are
entirely different than those as a result of alcohol use. He
pointed to a common concern that people have that difficulties
with alcohol should cause great caution in allowing marijuana to
be regulated, except he does not see that much similarity
between the two substances.
9:33:16 AM
REPRESENTATIVE REINBOLD reiterated that as marijuana is so
different from alcohol, why regulate it the same. Especially,
she said, in that Alaska has not done a good job overall of
regulating alcohol. She surmised that the conclusion does not
bear a good strategy in that if the two substances are
different, why regulate them the same.
DR. HINTERBERGER responded that marijuana, from a toxicological
and pharmacological point of view, is far less problematic than
alcohol. He pointed out that the fact that prior to the
initiative being passed, marijuana was prohibited whereas
alcohol was permitted and regulated which is the opposite
direction these two substances should be dealt with. Simply
making marijuana regulated equivalently with alcohol is a step
in the right direction as there is no reason marijuana should be
regulated more stringently than alcohol or prohibited as it has
been in the past and if anything, marijuana should be regulated
more leniently than alcohol, he conveyed.
9:34:36 AM
REPRESENTATIVE REINBOLD argued that Dr. Hinterberger's
statements were debatable as she was in pharmaceutical sales
roughly 10-years and to say some of the things Dr. Hinterberger
said about the pharmacology ... it all depends on the efficacy,
and concentrate, the size of the individual, et cetra. She
advised Dr. Hinterberger to use caution when making his
statements.
DR. HINTERBERGER replied that marijuana in any dose is not toxic
or lethal which cannot be said about alcohol and, the evidence
is clear that marijuana is far less toxic and harmful than
alcohol.
CHAIR TILTON pointed out that the goal today is to define terms
and not to debate the initiative.
9:35:53 AM
REPRESENTATIVE SEATON offered from a community and regional
affairs standpoint that some of Alaska's rural communities have
been dealing with is both tobacco and alcohol addiction. A
running question is regarding the mixing of nicotine with THC
products, or mixing alcohol with THC products which would
effectively increase its dependency or addiction properties, he
noted.
DR. HINTERBERGER answered that it was never the intent of the
drafters of the initiative to permit alcohol or tobacco to be
combined in the same product with marijuana, or necessarily even
to be available for sale or use in the same establishment and
the legislature could draw a clear line between all of those
substances and how and where they may be purchased and used.
REPRESENTATIVE SEATON indicated he appreciated Dr.
Hinterberger's statement in making sure the legislature can move
the commercial enterprise in a manner that is not going to have
unforeseen consequences is important.
9:37:38 AM
CHAIR TILTON referred to the local option issue and asked
whether it was the intent to put municipalities into the all or
nothing approach, meaning that a municipality must allow all
commercial activities or none. She maintained that the
municipalities are willing to allow the cultivation, but not
necessarily the retail sales or visa versa.
DR. HINTERBERGER remarked that the initiative states that a
local government may prohibit the operation of marijuana
cultivation facilities, marijuana product manufacturing
facilities, marijuana testing facilities, or retail marijuana
stores through enactment of ordinance or by voter initiative.
He surmised that it spells out that local government can
prohibit any number or all of those activities.
9:38:33 AM
REPRESENTATIVE HUGHES assumed Dr. Hinterberger was involved in
the process of drafting the initiative and questioned his
intention regarding "established villages."
DR. HINTERBERGER reiterated it was not the intent of the
drafters to exclude established villages, as they were trying to
mirror the way that local option applies to alcohol. He
apologized for the omission as the intent was to mirror local
control of alcohol and he did not want to create any problems
through that misunderstanding.
9:40:01 AM
REPRESENTATIVE REINBOLD referred to Dr. Hintergerger's statement
that "marijuana is not toxic at any level," and specified that
the definition of "toxic" is necessary and his statement is "a
very, very debatable statement." She asked whether he is being
funded by any entity, or as a volunteer.
DR. HINTERBERGER responded that this is an issue he has
personally devoted his time to for over a decade as the
prohibition of marijuana causes negative consequences in a free
society, such as the black market. He emphasized it is a lesson
that should have been learned through alcohol prohibition 80-
years ago and applied to marijuana, but better late than never.
He stated he is not being paid in any manner for his activities
and is a volunteer. He said he is grateful for the assistance
received from colleagues in the Marijuana Project, but is
receiving no compensation in any manner for his participation
with them.
9:41:37 AM
CHAIR TILTON questioned whether a city can allow the sale of bud
yet ban the sale of edibles under the initiative.
DR. HINTERBERGER offered that her question requires more
discussion among those on the undecided issue, but opined that
it would not be good to tamper with the definition of marijuana
as it is given in the initiative. Therefore, he pointed out,
any municipality or local government, for example, to forbid the
sale of edibles but allow the sale of marijuana plant material
would be altering the definition and would require a re-
definition. Another issue, he said, is whether a local
government could require that marijuana stores be only be
municipality owned, such as a city or municipality owned store,
which would not be inconsistent with the initiative and as a
result then, that store could choose which type of marijuana
products to sell and would accomplish the same goal.
9:43:17 AM
RACHELLE YEUNG, Legislative Analyst, Marijuana Policy Project,
echoed Dr. Hinterberger's statement that "established villages"
were omitted inadvertently as the drafters' intent was to mirror
the local authority under Title 4. She emphasized that unlike
alcohol, with Local Option 5 in which it can prohibit all
personal use and possession of marijuana is protected both by
the initiative and Ravin. She then addressed the question
Representative Seaton offered to Ms. Franklin regarding how
adding "established villages" to the statute differs from
substituting the word "registration" with "license." With
regard to his "adamant" opposition, she opined that it did not
come from the campaign, for legal reasons the belief that the
word "registration" is a better term to use as far as marijuana
regulation. She offered a court precedent from Oregon that read
"affirmative authorization using words such as license or
permitted by" is riskier as far as drawing federal intervention
than a term such as "registration," but even laws using the term
"license as ... um ... appears to be your intent" are not
preempted by federal law and it should be alright. However, she
noted, the word "registration" would be the strongest legal
footing to defend against potential federal preemption. They
were not the ones to make a strong objection to that
substitution, and as far as the campaign goes it is not
something it would put a lot of energy into fighting, she said.
She remarked that Mr. Blood did a much better job than she of
outlining the different authorities under various types of local
governments.
9:47:48 AM
REPRESENTATIVE REINBOLD asked whether Dr. Hinterberger is
affiliated with a completely separate organization or whether he
works with the Marijuana Policy Project (MPP) out of Washington
D.C. She further asked whether Dr. Hinterberger and Ms. Yeung
are volunteers, or are being paid, and if being paid, she
inquired as to the entity funding them.
MS. YEUNG advised she is a full-time paid employee by the MPP, a
501(c)(3) and (c)(4). She explained that her job as a
legislative analyst is to support and assist local advocates who
elect to bring about marijuana policy reform to their own
states, which is the capacity in which she is assisting and
supporting the Campaign to Regulate Marijuana like Alcohol in
Alaska. Ms. Yeung reminded the committee that Dr. Hinterberger
is the chair of the Campaign to Regulate Marijuana like Alcohol
in Alaska and is an uncompensated volunteer.
9:49:10 AM
REPRESENTATIVE SEATON pointed out that alcohol in Alaska is
regulated by licenses and multiple licenses for different
portions instead of a single registration that might cover all
aspects. He asked whether Dr. Hinterberger and she are in
opposition to the use of licenses for different parts of the
industry.
MS. YEUNG responded that MPP believes using the term "license"
would not be preempted by federal law, and that the language
should be left as is to keep the law on the strongest possible
legal footing.
9:50:17 AM
REPRESENTATIVE SEATON recognized that alcohol uses a number of
different endorsements to a licenses such as, a distillery,
retail establishment, or processing facility. He asked whether
MMP objects to those levels of discriminated licenses used in
the alcohol industry in Alaska.
MS. YEUNG opined that the initiative lays out a number of
marijuana related establishments that can be registered such as,
production, retail, testing, and processing. She offered to
research the issue and forward a response.
DR. HINTERBERGER, in response to the question concerning the
distinction between registration, licensing, and the application
of multiple licensing for certain aspects of the industry,
deferred the question to Ms. Yeung's legal expertise and the
ramifications of that distinction.
MS. YEUNG explained that under AS 17.38.070, the lawful
operation of marijuana operated facilities, there are various
provisions for the different types of marijuana related
facilities the initiative envisioned being established. She
opined that each one of the type of facilities could have its
own distinct registration types as each facility would be
allowed to do different things under the initiative. She
remarked that the four types of marijuana related establishment
categories are: retail marijuana store, marijuana cultivation
facility, marijuana product manufacturing facility, and
marijuana testing facility.
9:53:43 AM
REPRESENTATIVE SEATON asked whether Dr. Hinterberger agrees that
the multiple licenses would be available for those four
different parts of the industry.
DR. HINTERBERGER replied yes, and concurred that the licenses or
registrations would be received separately for each type of
facility.
9:54:41 AM
ADJOURNMENT
There being no further business before the committee, the House
Community and Regional Affairs Standing Committee meeting was
adjourned at 9:54 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HCRA DCCED 02-11-15 .pdf |
HCRA 2/12/2015 8:00:00 AM |
HB 75 |
| Marijuana Legalization Research Binder.pdf |
HCRA 2/12/2015 8:00:00 AM |
Marijuana |