03/11/2015 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s): Alaska Commission on Judicial Conduct | |
| HB75 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 75 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 11, 2015
1:06 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Chair
Representative Wes Keller, Vice Chair
Representative Bob Lynn
Representative Charisse Millett
Representative Matt Claman
Representative Neal Foster
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 75
"An Act relating to the regulation of marijuana by
municipalities; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
CONFIRMATION HEARING(S):
ALASKA COMMISSION ON JUDICIAL CONDUCT
George R. Boatright
- CONFIRMATION ADVANCED -
BILL: HB 75
SHORT TITLE: MUNI REGULATION OF MARIJUANA; ADV. BOARDS
SPONSOR(s): COMMUNITY & REGIONAL AFFAIRS
01/23/15 (H) READ THE FIRST TIME - REFERRALS
01/23/15 (H) CRA, JUD
02/21/15 (H) CRA AT 10:00 AM BARNES 124
02/21/15 (H) -- MEETING CANCELED --
02/24/15 (H) CRA AT 8:00 AM BARNES 124
02/24/15 (H) Heard & Held
02/24/15 (H) MINUTE(CRA)
03/03/15 (H) CRA AT 8:00 AM BARNES 124
03/03/15 (H) Moved CSHB 75(CRA) Out of Committee
03/03/15 (H) MINUTE(CRA)
03/05/15 (H) CRA AT 8:00 AM BARNES 124
03/05/15 (H) Moved CSHB 75(CRA) Out of Committee
03/05/15 (H) MINUTE(CRA)
03/06/15 (H) CRA RPT CS(CRA) NT 3DP 3NR
03/06/15 (H) DP: NAGEAK, SEATON, TILTON
03/06/15 (H) NR: DRUMMOND, REINBOLD, HUGHES
03/11/15 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
GEORGE BOATRIGHT
Anchorage, Alaska
POSITION STATEMENT: As appointee to the position of Alaska's
Commission on Judicial Conduct, discussed his qualifications and
answered questions.
CHARLES MCKEE
Anchorage, Alaska
POSITION STATEMENT: During the confirmation hearing of George
Boatright testified regarding the "Oath Bonded Commission".
REPRESENTATIVE CATHY TILTON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented CSHB 75 on behalf of the House
Community and Regional Affairs Standing Committee, of which she
chairs.
HEATH HILYARD, Staff
Representative Cathy Tilton
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified regarding CSHB HB 75 on behalf of
the House Community and Regional Affairs Standing Committee,
sponsor by request, chaired by Representative Tilton.
SCOTT BLOOM, City Attorney
City of Kenai
Kenai, Alaska
POSITION STATEMENT: Testified in support of CSHB 75.
LUKE HOPKINS, Mayor
Fairbanks North Star Borough
Fairbanks, Alaska
POSITION STATEMENT: During the hearing of CSHB 75 offered
testimony and answered questions.
TODD SHERWOOD, Assistant Municipal Attorney
Anchorage Department of Law
Anchorage, Alaska
POSITION STATEMENT: During the hearing of CSHB 75 offered
testimony and answered questions.
RENE BROKER, Borough Attorney
Fairbanks North Star Borough
Fairbanks, Alaska
POSITION STATEMENT: During the hearing of CSHB 75 answered
questions.
CATHY WASSERMAN
Alaska Municipal League
Juneau, Alaska
POSITION STATEMENT: During the hearing of CSHB 75 offered
testimony and answered questions.
BRUCE SCHULTE
Coalition for Responsible Cannabis Legislation
Anchorage, Alaska
POSITION STATEMENT: During the hearing on CSHB 75 offered
testimony and answered questions.
ACTION NARRATIVE
1:06:19 PM
CHAIR GABRIELLE LEDOUX called the House Judiciary Standing
Committee meeting to order at 1:06 p.m. Representatives Keller,
Lynn, Millett, Claman, and LeDoux were present at the call to
order. Representatives Gruenberg and Foster arrived as the
meeting was in progress.
^CONFIRMATION HEARING(S): ALASKA COMMISSION ON JUDICIAL CONDUCT
CONFIRMATION HEARING(S)
ALASKA COMMISSION ON JUDICIAL CONDUCT
1:06:41 PM
CHAIR LEDOUX brought before the committee the appointment of
George R. Boatright to a position on the Committee on Judicial
Conduct. [Packets contain biographical information on the
appointee.]
CHAIR LEDOUX advised the committee that it would be hearing the
qualifications of this individual today and recommending that
his name be referred to the Joint House and Senate for
consideration. Chair LeDoux reminded the committee that its job
is only to review the history and qualifications of these men.
She stated that there will be no vote for or against their
confirmations. Committee members should feel free to ask
questions, but to bear in mind that the committee is not voting
on qualifications, merely reviewing them, she highlighted.
1:07:32 PM
CHAIR LEDOUX asked Mr. Boatright if there was anything he would
like to point out.
1:08:07 PM
GEORGE BOATRIGHT said that primarily his experience in law
enforcement with the Alaska Court System is most relevant.
1:08:49 PM
REPRESENTATIVE KELLER asked Mr. Boatright why he is willing to
serve on the commission.
MR. BOATRIGHT noted that he has been retired for almost three
years and is looking for something to do as he has always been
involved in public service.
1:09:35 PM
CHAIR LEDOUX remarked that in his professional career in law
enforcement had he ever had the opportunity to appear before
many of the judges.
MR. BOATRIGHT opined that most of the judges he has dealt with
have long since retired or moved on to other things. He said
there are a few judges left that he is familiar with from his
time as Chief of Police in Palmer, but he has not had any
contact or interaction with the current serving judges.
CHAIR LEDOUX opened public testimony.
1:11:04 PM
CHARLES MCKEE advised he told the [Alaska Commission on Judicial
Conduct [when the vacancy arose] must have an "Oath Bonded
Commission" on file with the clerk of court as after 30 days
they are an imposter. He cited the 1863 Act of Congress signed
by Lincoln.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify.
1:13:00 PM
REPRESENTATIVE KELLER moved to forward the name of George R.
Boatright to the joint session of the House and Senate for
confirmation. There being no objection, the confirmation of
George R. Boatright was advanced from the House Judiciary
Standing Committee.
1:13:29 PM
The committee took an at-ease from 1:13 to 1:15 P.M.
HB 75-MUNI REGULATION OF MARIJUANA; ADV. BOARDS
1:15:24 PM
CHAIR LEDOUX announced that the last order of business would be
HOUSE BILL NO. 75, "An Act relating to the regulation of
marijuana by municipalities; and providing for an effective
date."
1:15:28 PM
REPRESENTATIVE CATHY TILTON, Alaska State Legislature, said HB
75 is essentially a collaborative effort between the House
Community and Regional Affairs Standing Committee, Alaska
Municipal Leagues, Alaska Municipal Attorneys Association,
community governing stakeholders, and community members. She
noted that when the marijuana initiative was passed, communities
looked to the legislature for guidance in whether to opt in or
opt out. During the hearings, rather than telling the
communities what to do, she listened to what communities need
from the legislature.
1:17:02 PM
HEATH HILYARD, Staff, Representative Cathy Tilton, Alaska State
Legislature, referred to the "S" version and stated it follows
the identical definition provided in the initiative language,
with the exception of the removal of the reference "salt." To
the extent possible, the drafter aligned definitions in specific
provisions that also exist in other marijuana related
legislation. He pointed out that Sec. 1 pertains to a
definition in Title 11 of the Alaska Criminal Statute. In the
course of drafting, they created a structure whereby if HB 75
was the only related piece of marijuana legislation that passed
this year the appropriate statutory references would be
provided. He related that other pieces completely remove the
definition under Title 11 of the Alaska Criminal Statute. He
further related that the functional effect is the same as the
goal is to provide a standard definition through statute for
marijuana.
1:19:56 PM
CHAIR LEDOUX questioned that other than taking the language
"salt" out, was anything done with the comma.
1:20:07 PM
MR. HILYARD responded that his research did not direct the
drafters to do or not do anything with the comma. He referred
to Sec. 2 [AS 17.38.020(2)], page 2, lines 16-18, which read:
(2) ... were grown, except that not more than 12
marijuana plants, with six or fewer being mature,
flowering plants, may be present in a single residence
where two or more persons 21 years of age or older
reside;
MR. HILYARD continued that municipalities provided a specific
number of plant limits per household. He advised that this bill
is largely a work product of municipal attorneys and they asked
that the legislature provide a bright line regarding the total
limit on a household. In attempting to make a legitimate
justification for 12 plants, they reviewed federal laws as they
pertain to alcohol and particularly the home brewing of alcohol.
1:22:39 PM
CHAIR LEDOUX interjected that because she has concerns that the
[number of plants for personal use] might contravene the terms
of the initiative, she asked Legislative Legal and Research
Services for an opinion, which the committee has not yet been
provided.
She advised that her question was whether or not this
contravenes the initiative, and whether it contravenes the
initiative in such a manner that would be inappropriate,
unconstitutional, or illegal, under Alaska law relating to
initiatives.
1:23:21 PM
MR. HILYARD noted that there were several municipal attorneys on
line to testify, and some specifically like 12 as a number, and
some simply say they do not care what the number is so long as
there is a definitive number per household. He described the
legislation as a work product designed to be responsive to the
needs of municipal communities.
The House Community and Regional Affairs Standing Committee is
the sponsor of this bill and, he related, that the committee
would be satisfied with whatever number the House Judiciary
Standing Committee offers.
1:24:00 PM
CHAIR LEDOUX opined that one of the progeny of the Ravin v.
State of Alaska, 537 P.2d 494 (Alaska 1975), decision discusses
how many plants a person can possess.
MR. HILYARD advised that Ravin pertains only to the privacy
issue and under Noy v. State of Alaska, No. A-8327, August 29,
2003, the Alaska Court of Appeals defined four ounces or less
for personal possession. His research did not reveal case law
directed at 12 plants versus 24 plants.
1:27:32 PM
CHAIR LEDOUX asked Mr. Hilyard the definition of a marijuana
club.
MR. HILYARD pointed to [Sec. 21. AS 17.38.900(16)], page 11,
lines 3-5, and said that the definition of a marijuana reads as
follows:
(16) "marijuana club" means an entity registered to
allow consumption of marijuana by paying members of
the club on the registered premises and whose members
are 21 years of age or older;
MR. HILYARD advised there has been discussion about providing
additional sideboards in which the input of the House Judiciary
Standing Committee would be very valuable. He offered that this
is an initial first blush based on the discussions of the House
Community and Regional Affairs Standing Committee.
1:28:18 PM
CHAIR LEDOUX questioned whether a marijuana club could have
employees.
MR. HILYARD responded there has been discussion relating to
bottle clubs versus private club as it pertains to provisions in
Title 4, but the committee did not weigh in on that issue.
CHAIR LEDOUX stated that many municipalities ban the consumption
of the smoking of cigarettes and that there is currently
legislation concerning a statewide ban. She wondered how
marijuana legislation will gel with anti-smoking legislation.
MR. HILYARD stated that as this legislation was being drafted it
did not have the luxury of the presumption of other pieces of
legislation passing. He noted there would have to be a
reviser's bill to address any potential differences between what
passes. He pointed out that Sec. 8, addresses an unintended
omission in the initiative regarding the local option provision
as AS 17.38 made no provision for local option elections for
established villages. In going through the drafting process,
they put in sideboards regarding the process in which an
established village can hold a local option election, and how
the perimeters of an established village are determined.
1:30:34 PM
CHAIR LEDOUX asked if this would basically work as it does for
the local option with respect to alcohol.
MR. HILYARD answered in the affirmative, and stated with the
exception that Ravin provides protection for personal
consumption of marijuana and not for alcohol. The local option
election in this circumstance would pertain only to the banning
of commercial [marijuana] activities within the perimeters of an
established village.
1:31:02 PM
MR. HILYARD referred to Sec. 9, [AS 17.38.110(b), page 5, lines
26-31 and Page 6, lines 1-2, and stated that at the express
request of municipalities, the House Community and Regional
Affairs Standing Committee allowed municipalities to establish
civil and criminal penalties for time, place, and manner
violations by commercial marijuana establishments. He pointed
out it was not originally included in the initiative, and
Legislative Legal and Research Services advised it was not
specifically prohibited in the initiative language. He opined
that Title 29 provisions would allow the municipalities to do
that even though it was not expressly defined. The committee,
at the express request of the municipalities, provided that they
have criminal authority for time, place, and manner, violations
for commercial establishments. He referred to Sec. 16, [AS
17.38.110], page 7, lines [15]-22, which stipulate that any of
the powers authorized to the boroughs is on a non-areawide
basis. Essentially, he noted, in the case of the Fairbanks
North Star Borough, the borough may adopt prohibitions or
regulations within the borough boundaries. Due to the fact they
are non-areawide, any prohibition or ordinance on the borough-
wide level would not apply to cities within its boundaries. He
said that was at the request of cities like the City of
Fairbanks and the City of Wasilla that are first-case cities
within second class boroughs.
1:32:37 PM
CHAIR LEDOUX surmised that the boroughs, many of which do not
have area-wide powers, cannot currently adopt anti-smoking
regulations. She questioned whether they would be able to under
this legislation adopt regulations vis-à-vis marijuana
establishments.
MR. HILYARD used the example of the Fairbanks North Star Borough
and remarked that it could adopt borough ordinances pertaining
to borough land outside of the boundaries of first class cities
like North Pole and Fairbanks, which lay within the boundaries
of the Fairbanks North Star Borough.
CHAIR LEDOUX questioned that even if one of their powers is not
health or public safety, as many boroughs do not have that
power.
MR. HILYARD opined that they still have zoning and planning
authority and that could fall under that circumstance. He said
the intent of the policy call of the House Community and
Regional Affairs Standing Committee, with regard to stipulating
non-areawide, is that a borough could not supersede a city
within its boundaries.
1:33:49 PM
MR. HILYARD pointed to Sec. 17, [AS 17.38.200 - AS 17.38.260],
page 7, lines 26-31 through page 10, lines 1-[11] and stated it
sets forth the proper process by which an established village
can have a local option election to prohibit a commercial
marijuana operation within its boundaries. He advised it is
virtually identical language to Title 4, for the purpose of
commercial marijuana establishments. Sec. 19, [17.38.900(9)],
page 10, lines [16-19], adds to the definition of marijuana club
to marijuana establishment, he explained. Sec. 20, [AS
17.38.900(6)], page 10, lines [20-28], revises the definition of
marijuana to be consistent with Sec. 1, of the bill. He noted
that essentially the practical effect is that the committee
prefers a singular definition of marijuana throughout statute
for municipalities to adopt ordinances. Sec. 21, [AS
17.38.900], page 10, lines [29-31] through page 11, lines [1-12]
offers the express definition for an established village,
marijuana club, public place, and residence. The public place
definition follows AS 11.81.900, he noted. "Sec. 22 removes
local government from the definition section found in AS 17.38.
... let me just refresh myself why that was the case ... there
was ... that's kind of a conforming amendment and quite honestly
I don't remember exactly why local government was removed but
there was a drafting reason." Sec. 23 provides for the
effective date of the bill, he explained.
1:35:49 PM
CHAIR LEDOUX asked that if public place doesn't include a
marijuana club then under what opuses would the local government
ban the marijuana club.
MR. HILYARD explained that it would be determined as a
commercial marijuana establishment. The initiative provides for
various types of commercial establishments regarding the
cultivator, transporter, wholesaler, or retailer, and this
provision adds marijuana club to the list of commercial
establishments.
CHAIR LEDOUX offered a scenario of a person forming a marijuana
club like a book club, or a non-profit, and asked how that would
work.
MR. HILYARD answered that he did not have a response as perhaps
the House Community and Regional Affairs Standing Committee
definition of marijuana club is not as sufficient as necessary.
He reiterated it was a first blush based on requests from
municipalities to offer them a definition so they could
determine, by local ordinance, whether they would allow or
disallow marijuana clubs within their boundaries.
1:37:07 PM
CHAIR LEDOUX referred to [Sec. 1, AS 11.71.900] page 2, lines 2-
4, which read:
(14) ... , or the weight of any other ingredient
combined with marijuana to prepare topical or oral
administrations, food, drink, or other products;
CHAIR LEDOUX asked whether that language differed from current
law.
MR. HILYARD opined that as it is referring to AS 11.[71.900], of
the Alaska Criminal Statute, and the language needed to be
included to conform to the initiative language. He said the
definition must be reviewed in the event a substantive criminal
regulatory bill package is not adopted by this legislature.
1:38:02 PM
REPRESENTATIVE KELLER referred to Sec. 14, [AS 17.38.110(i)],
page 7, lines 5-9, which read:
(i) A registration issued by a municipality [LOCAL
GOVERNMENT] in accordance with (f)[OF THIS SECTION] or
(g) of this section shall have the same force and
effect as a registration issued by the board in
accordance with AS 17.38.100. The holder of the
[SHALL] registration is [SHALL] not [BE] subject to
regulation or enforcement by the board during the term
of that registration.
REPRESENTATIVE KELLER and asked Mr. Hilyard to explain the
language.
MR. HILYARD answered that the House Community and Regional
Affairs Standing Committee amended existing statute for the
initiative language which changed local government to
municipality. He said he could not speak to language from the
initiative.
REPRESENTATIVE KELLER asked for verification that the initiative
made the deletions on line 8.
MR. HILYARD said that Sec. 14 includes the deletion of local
government with the inclusion of municipality, which is
clarifying and using the standard. In going forward, he
offered, when looking at the holder of the registration "is not
subject" is a grammatical change based on Legislative Legal and
Research Services. He posited there was no policy direction by
the committee or any members of the municipal attorneys working
with them as it was drafting language.
1:40:21 PM
CHAIR LEDOUX opined that the way the initiative works is that if
the board does not act on an application for registration, then
the municipality can act. She said the language is changing
from local government action to municipality action.
MR. HILYARD said the initiative language would read "The holder
of such registration shall not be subject to regulation or
enforcement by the board during the term of that registration."
He related that the new revision reads "The holder of the
registration is not subject to a regulation or enforcement by
the board during the term of that registration." He suggested
asking the drafter, Hilary Martin, but remarked it was
essentially a grammatical issue by the Legislative Legal and
Research Service. He reiterated there was no policy direction
by the House Community and Regional Affairs Standing Committee
or any requests from municipalities for the language change.
1:41:27 PM
REPRESENTATIVE KELLER pointed to [Sec. 2, AS 17.38.020], page 2,
lines 6-7, and referred to the wording "NOTWITHSTANDING any
other provision of law ..." and said it was taken out of HB 79.
CHAIR LEDOUX offered that one of the work drafts took the
language out, but it is still being considered.
1:41:59 PM
REPRESENTATIVE KELLER asked for clarification of [Sec. 5, AS
17.38.100(c)] page 3, lines 13-14, which read:
(c) Within 10 days after receipt of [UPON RECEIVING]
an application or renewal application for a marijuana
establishment, the board shall notify the municipality
of the board's receipt of the application and
[IMMEDIATELY] forward a copy of each application and
half of the registration application fee to the local
regulatory authority for the municipality [LOCAL
GOVERNMENT] in which the applicant desires to operate
the marijuana establishment, unless the municipality
[LOCAL GOVERNMENT] has not designated a local
regulatory authority under [LOCAL GOVERNMENT] has not
designated a local regulatory authority under
[PURSUANT TO] AS 17.38.110(c).
REPRESENTATIVE KELLER questioned whether the language is a
policy decision for the House Judiciary Standing Committee.
MR. HILYARD opined that there has been debate as to revenue
sharing for the license registration fees and based upon his
conversations with municipal attorneys, municipalities would
like the 50-50 split. He advised there are people on line who
could speak to that issue.
1:43:00 PM
CHAIR LEDOUX pointed to a legal opinion in each packet
suggesting it is not legally appropriate.
MR. HILYARD remarked that he does not recall the above-mentioned
opinion as this issue was not discussed in the House Community
and Regional Affairs Standing Committee.
CHAIR LEDOUX said she is referring to the legal opinion of
2/27/15, and noted that page 3 refers to dedication of funds
without appropriation.
MR. HILYARD said that he does not have an opinion.
CHAIR LEDOUX commented that the committee would consider the
issue during the next hearing.
1:44:55 PM
REPRESENTATIVE KELLER quiered whether this requires the board to
notify the municipality when it receives an application, and
asked if there is a fiscal note.
MR. HILYARD advised there is a singular fiscal note from the
Department of Commerce, Community, and Economic Development
(DCCED) under the Division of Alcohol, Division of Economic
Development, within the Alcoholic Beverage Control Board (ABC
Board) that is a zero fiscal note. The language and the
provision Representative Keller spoke to was essentially taken
directly from Title 4. He advised that the House Community and
Regional Affairs Standing Committee wanted to apply provisions
with regard to notification and/or protest that exists for
alcohol licensures to municipalities to commercial marijuana.
CHAIR LEDOUX opened public testimony.
1:46:53 PM
SCOTT BLOOM, City Attorney, City of Kenai, said that
Representative Tilton and Mr. Hilyard have worked closely with
many local municipal representatives regarding their concerns
about implementation of the initiative and opined that the
current CSHB 75 fairly represents those efforts. Options for
local control and clarity in enforceable rules will benefit the
City of Kenai and other municipalities as well. The bill
preserves local options and provides clarity for the public and
agency's charged with enforcement. He said he supports a bright
line rule for a particular number of plants per household as it
provides clarity to all potential interested parties. He
related that he does not advocate for any particular limit as
long as there is a specific number. He opined that without the
amendment in this regard the initiative language would either
result in scant enforcement or constant litigation. He further
opined that the committee's support for CSHB 75 will help to
provide guidance and uniformity as municipalities move forward
in this process.
1:48:21 PM
REPRESENTATIVE GRUENBERG requested that Mr. Bloom and others
remain available.
MR. BLOOM stated he would be available.
CHAIR LEDOUX asked why would it be difficult for a municipality
when there are four people in a household with 24 plants, why
isn't that as bright of a line as saying 12 or 18 plants. She
opined that when there are four adults it would be relatively
easy to figure out how many plants they are entitled to.
MR. BLOOM responded that there is difficulty in determining how
many people actually live at that residence and used the example
of police responding to a domestic violence call and the police
find 36 plants, except the 2 people at the residence say that 6
adults live in the house. He described a person having large
quantities of marijuana in a college-like setting where there
are numerous adults living together and stated it can lead to
other problems.
CHAIR LEDOUX related that is a different scenario than a bright
line just for purposes of making things easier to figure out.
MR. BLOOM agreed that it is a little different in that when the
municipality knows a household can only have 12-24 plants and
law enforcement shows up at a residence for whatever reason and
there are a given number of plants within the limit, that is the
end of the inquiry. Otherwise, he said, it is a more
complicated process in determining who lives there and who
possesses the plants.
1:50:50 PM
REPRESENTATIVE GRUENBERG asked if the focus in the discussion
was on page 2, lines 16-18.
CHAIR LEDOUX advised that Mr. Bloom was testifying on the bill
before the committee.
REPRESENTATIVE GRUENBERG offered a scenario of having a 4-plex
and a backyard or a greenhouse, how would law enforcement know
to which residence the plants belonged.
MR. BLOOM said he does know that they could, and opined that the
police department would have to investigate in that regard.
REPRESENTATIVE GRUENBERG directed that the committee received a
three page legal memo, dated 2/27/15, from Emily Nauman, which
discussed equal protection on the first page. He questioned
whether Mr. Bloom had reviewed it.
MR. BLOOM said he does not know whether he has read that
particular memo, however, he has looked into some case law and
analyzed under Alaska law more as a privacy type interest. He
offered that the Alaska Supreme Court has looked at whether a
regulation has a close and substantial relationship to a
legitimate government interest. He stated that the Alaska court
previously decided that the state has a substantial interest in
regulating the use of marijuana in driving, use by children,
regulating in public places, and regulating the buying and
selling of marijuana. He opined that when there is a lot of
marijuana in one place it triggers that interest in the buying
and selling of marijuana. He further opined that there is an
interest in reasonable enforcement of regulations as without
more clarity on this subject it will be difficult for
enforcement because it is too vague for law enforcement to
determine whose marijuana plants are whose.
1:53:53 PM
REPRESENTATIVE GRUENBERG said that his questions will relate to
the practical problems of enforcing this law and constitutional
issues. He posed a question of how law enforcement and
prosecutors are going to do this.
CHAIR LEDOUX said there are three people listed to testify,
Scott Bloom, Luke Hopkins, Fairbanks Mayor, Todd Sherwood,
Anchorage Municipal Attorney, and Bruce Schulte, available to
answer questions. She noted that Cathy Wasserman is in the
audience from the Alaska Municipal League to testify.
REPRESENTATIVE GRUENBERG surmised that law enforcement was not
available to testify.
1:56:02 PM
CHAIR LEDOUX referred Representative Gruenberg to the initiative
and pointed out that under AS 17.38.030(1)(A) which read:
(A) marijuana plants shall be cultivated in a location
where the plants are not subject to public view
without the use of binoculars, aircraft, or other
optical aides.
CHAIR LEDOUX said it may answer Representative Gruenberg's
question regarding a greenhouse in the backyard.
REPRESENTATIVE GRUENBERG offered that he would change his
question to a common basement.
1:57:10 PM
LUKE HOPKINS, Mayor, Fairbanks North Star Borough, asked that
Representative Gruenberg restate his question for the borough
attorney.
1:57:47 PM
REPRESENTATIVE GRUENBERG questioned how will growing marijuana
be legally enforced in a situation where marijuana is being
grown in an area in a multi-family residence accessible to a
number of people. He offered that it could be a greenhouse that
a person cannot see what is growing inside, in a basement, or
hallway.
1:58:35 PM
TODD SHERWOOD, Assistant Municipal Attorney, Anchorage
Department of Law, responded to Representative Gruenberg that as
an important aside on the equal protection issue, advised he
spoke with an attorney in the City of Denver's law department on
this issue. He explained that the Colorado initiative is part
of their constitution, unlike Alaska which has the identical
language regarding the six plant limit. He advised that the
City of Denver, prior to legalization January 1, 2014,
established a 12 plant per dwelling unit limit. He expressed
that Denver has had no equal protection challenges and in fact
there have been no challenges of any kind on the 12 plant limit.
In some manner this may speak to whether it would be a credible
challenge, he opined. He noted that on one hand, he does not
know if Colorado has the same privacy clause in its constitution
as Alaska. On the other hand the Colorado amendment that
legalized recreational marijuana is part of its constitution, he
further noted. He offered that the question illustrates the
importance of a bright line rule in Alaska as to whether
marijuana is grown in a basement or backyard. The 12 plants are
in essence owned in common and however many adults are living
there are arguably in possession of those plants, he remarked.
He said that within the Anchorage Municipal Code the term single
residence is not used for a separate residence for one household
as it is called a dwelling or dwelling unit, and the code
defines household. He opined that in order to address the issue
raised, municipalities may need to further define what the 12
plant limit applies to in terms of a greenhouse. He noted that
the definition is fine when it applies to inside the building.
For Anchorage, he said, it further underlines the need to leave
maximum flexibility to the municipalities in moving forward.
2:02:05 PM
REPRESENTATIVE GRUENBERG pointed to existing law, AS
11.81.900[(52)], which read:
(52) "public place" means a place to which the public
or a substantial group of persons has access and
includes highways, transportation facilities, schools,
places of amusement or business, parks, playgrounds,
prisons, and hallways, lobbies, and other portions of
apartment houses and hotels not constituting rooms or
apartments designed for actual residence;
REPRESENTATIVE GRUENBERG stated that the statute moved the
committee closer to specific language for CSHB 75. He assumed
that definition would apply to this bill in Title 17. He
mentioned that Chair LeDoux nodded in agreement.
2:04:05 PM
RENE BROKER, Borough Attorney, Fairbanks North Star Borough,
added that the Fairbanks North Star Borough also uses the term
dwelling units.
REPRESENTATIVE GRUENBERG noted that dwelling units may be better
as it is not as narrow.
2:05:46 PM
MR. HOPKINS referred to [Sec. 2, AS 17.38.020] page 2, lines 16-
19, which read:
(1) possessing, using, displaying, purchasing, or
transporting marijuana accessories or one ounce or
less of marijuana;
(2) possessing, growing, processing, or transporting
not [NO] more than six marijuana plants, with three or
fewer being mature, flowering plants, ...
MR. HOPKINS posited that six plants per dwelling unit is his
hope, and harvesting three adult fully flowering plants for a
household. He questioned whether more than six flowering plants
are necessary in a dwelling unit to satisfy personal use of
adults over 21 years of age. He opined that adults in Fairbanks
ask him why more than six plants [per household] are necessary
to suffice personal use. He opined there is a slogan to
regulate marijuana like alcohol, but in his mind marijuana is
different than alcohol and he asked that the committee consider
that issue. Another point, he said, is language that a "second
class borough may exercise by ordinance on a non-areawide or
areawide basis the power to regulate, prohibit, and provide for
civil penalties for a public ... for the public use of
marijuana." He noted that this language was forwarded to
Representative Tilton's staff, Heath Hilyard. He referred to
the above language and explained that second class boroughs have
to adopt different degrees of the Department of Health & Social
Service (DHSS) powers. He opined it would be best for the
Fairbanks North Star Borough and other second class boroughs
that the law allow the ability to adopt civil fines for public
use of marijuana by ordinance. He said his plan was for a $100
fine for public consumption of marijuana and had to pull it back
because it currently doesn't fit in the Fairbanks North Star
Borough. Should the [fine] be by law it could be brought before
the Fairbanks North Star Borough Assembly and adopt an
ordinance. He used the example of it being placed under AS 29
or AS 17.38 as it would be most beneficial to local
municipalities and offers them the ability to do as the local
legislative body finds appropriate for its communities. He
noted that the aspect of an areawide borough has incorporated
cities has a more restrictive code on marijuana that it be
considered on an areawide basis so the borough does not have to
"spray paint lines" in the snow where the city and borough
limits are.
2:10:54 PM
REPRESENTATIVE GRUENBERG said the issue is complicated and hoped
the municipalities would be of a like mind and asked for
language so the committee could understand their concerns.
CHAIR LEDOUX said the sponsor does have other language and the
committee will be working with that.
2:11:46 PM
CHAIR LEDOUX asked in relating to the wording of CSHB 75,
without new language, whether the boroughs have areawide powers
to enforce the DHSS laws.
MR. HOPKINS responded that it depends upon the powers that have
been given to second class boroughs.
2:12:42 PM
MS. BROKER explained that second class boroughs do not have that
power unless it has separately acquired it through voter
approval. She noted that the Fairbanks North Star Borough does
not currently possess that power because it has not been
provided by city law or voter approval.
CHAIR LEDOUX asked which boroughs have the authority and which
boroughs do not.
MS. BROKER answered that she would not like to speak with
authority, but does not believe that any second class borough
has that authority.
2:13:36 PM
REPRESENTATIVE GRUENBERG raised the issue of whether any state
laws should be changed to provide flexibility.
2:14:15 PM
CATHY WASSERMAN, Alaska Municipal League, said the purpose of
the Alaska Municipal League (AML) is to attempt to put
municipalities on the same page. The bill expresses what
municipalities need to ascertain its residents are safe and that
municipalities abide by the provision of the initiative. She
noted there are disagreements between areawide and non-areawide
and AML does not take a position on that issue. She said that
AML appreciates CSHB 75 as it offers the local option to take
care of issues on the local level. She opined that
municipalities will feel the ramifications first whether or not
there are good or bad things that happen and they need to be
able to be flexible. She further opined her hope that the
municipalities and legislature look at the issue in a couple of
years because she is confident there are issues that won't work
well and noted that the AML is in favor of CSHB 75.
2:18:43 PM
CHAIR LEDOUX surmised that the 12 plant limit is a compromise
that the municipalities have more or less agreed upon.
MS. WASSERMAN opined that the 12 plant limit is a placeholder
and no one is married to 12. It does help keeps things from
being grey for law enforcement when determining who lives in the
residence, are they on the North Slope, in the military, or the
National Guard and gone for a month and law enforcement has to
wait until the person returns. She opined there are too many
questions and too many ifs, ands, or buts, so the more
regulation put into this sometimes brings more enforcement and
more questions. She further opined that the limit is a
stipulation that will keep it more clean cut and allow law
enforcement to be more positive in responding to a call. She
referred to the committee discussion on tax and she said she
found the registration tax similar to the Raw Fish Tax Program
which the legislature shares with municipalities.
2:20:27 PM
REPRESENTATIVE CLAMAN referred to the discussion relating to 12
plants and he surmised there is some tension with what to do
with the constitutional protections from Ravin for plants in a
residence. In attempting to articulate law enforcement needs is
what the 12 plants is attempting to address and, he noted, the
detective from a prior meeting showed samples of marijuana
except his expertise was in harder drugs. Although, there is
concern with the 12 plants limit, he pondered whether
municipalities are not going to be doing much with plants at
home, whether 12 or 30 plants because it is confusing and
difficult to ascertain where Ravin fits. He surmised law
enforcement would find the plants because they are at a
residence for something else.
2:22:24 PM
CHAIR LEDOUX asked how Bruce Schulte "squares" the 12 plant
limit with the specific wording of the initiative and whether
his organization has a position.
BRUCE SCHULTE, Coalition for Responsible Cannabis Legislation,
Anchorage, Alaska, said he has given this issue a great deal of
thought and determined that many of the numbers thrown out are
somewhat subjective in nature as they are based on precedence
outside of the state.
He said that everyone would like to see law enforcement and
Alaskan citizens have clear guidance on this issue. He pondered
substantial arguments for the number of plants as the initiative
reads that adults over the age of 21 can have up to six plants,
and the question relates to limits of multiple adults in the
home. He said he looked at the legal precedent which was Ravin
and he cannot find a specific reference to 24 plants as it may
be in a subsequent ruling. He determined that the Ravin
decision was a forced issue as Mr. Ravin went out of his way to
get arrested just to bring this issue to court. When looking
for a benchmark, 24 plants is a compelling number. He submitted
that a total of 24 plants in any household is probably the most
defensible based upon prior legal precedent and rational
arguments. He stated that it points to another opportunity of a
home grower license, referenced in another bill, in which there
should be a distinction between personal cultivation,
possession, and commercial, however, it is a fact that some of
the existing commercial market is being supplied by smaller home
growers. He remarked that the challenge for the industry and
legislature is how to encourage those folks to participate in a
regulated marijuana taxed industry. He contends the state
should make it as easy as possible for a person to obtain a home
grower license so they can participate legitimately in a
regulated marijuana industry but, he posited, confusion cannot
be entirely avoided.
2:26:28 PM
CHAIR LEDOUX said the Alcoholic Beverage Control Board (ABC
Board) or Marijuana Control Board can consider a home grown
license. She opined that there is the Ravin right to privacy
issue which is a different issue than the terms of the
initiative.
MR. SCHLTE responded that the initiative clearly reads that an
individual can grow up to six plants in their home and where
there are two or more adults is a grey area, which he surmised
exists all the way to 24 plants. He suggested that the only
rational manner to address this is to simply say for a single
adult, possession is six plants, for multiple adults sharing a
residence the number is 24 plants. He said he does not have a
good answer for that issue.
2:28:14 PM
REPRESENTATIVE CLAMAN noted that initiative refers to 6 plants
and asked how 12 plants is irrational and 24 plants is rational.
He questioned that the number of plants is an arbitrary number
as there are households with more than 4 adults.
MR. SCHULTE said it is only slightly less arbitrary based on the
fact there is a legal opinion stipulating that anything under 25
plants is considered a protected activity under the person's
right to privacy. He said that is the only argument he can make
and granted that the difference between 12 and 24, based on his
argument is a slim one.
2:30:10 PM
MR. HILYARD offered the rationale as to how the House Community
and Regional Affairs Standing Committee came to 12 plants. He
said it goes beyond the City and [County] of Denver adopting a
similar regulation.
CHAIR LEDOUX said she read the article in the packets which
talked about a 36 plant limit for the City [and County] of
Denver.
MR. HILYARD stated that is new in response to grow operations in
non-residential areas. He noted that the City and County of
Denver is attempting to put a different restriction for grow
operations that could be considered personal grow in non-
residential areas. He opined there is an ordinance before the
City and County of Denver that would be a limit of 12 per
household in a residential area. In terms of working with
municipalities in arriving at a bright line number, he remarked,
that the federal government currently provides a limitation on
the amount of home brew a person can brew for personal
consumption for alcohol. He advised the limitations are 100
gallons per person or not more than 200 gallons per household.
Similarly, the thought of the committee was that if there is a
standard for the amount of home brew, there should be a limit on
the amount that can be personally cultivated for personal
consumption. He provided that there is a question in the
packets regarding "How much usable marijuana is in an ounce of
pot," and the author responded there are roughly 60 joints
assuming that a joint is one-half gram of marijuana. He said
that the author characterized it as a "keg of pot," as there are
roughly 60, 12-ounce beers in a pony keg of beer. The House
Community and Regional Affairs Standing Committee determined
that an ounce of pot is roughly 5.35 gallons of beer. Depending
upon the ability of a home cultivator the amount of usable
marijuana could [fluxuate], he remarked. On the low end, he
opined, six plants in one year could produce 1.5 pounds or 18-
ounces. On the high end, he continued, six plants could
generate as much as 13.5 pounds of usable marijuana a year. The
committee assumed that 1.5-13.5 pounds per year for 6 plants is
a reasonable estimation of the amount that could be yielded.
Using the assumption that 1 ounce is equal to 5.35 gallons of
beer, on the low end 18 ounces equates to approximately 101
gallons. Yet, he noted, on the high end 13.5 pounds would
equate to 1200 gallons per year. The campaign to promote the
initiative was a campaign to regulate marijuana like alcohol so
in adopting the 12 plant limit, and attempting to find a bright
line and a standard, that was the rationale.
2:35:10 PM
MR. SCHULTE referred to his 3/11/15, memo to Representative
Gabrielle LeDoux and testified regarding Sec. 12, AS
17.38.110(m), page 7, lines 16-20, which read:
(m) A municipality that has not prohibited the
operation of marijuana cultivation facilities,
marijuana product manufacturing facilities, marijuana
testing facilities, retail marijuana stores, or
marijuana clubs under (a) of this section may create a
local advisory board to advise the municipality on
issues related to licensing of marijuana
establishments and regulation of marijuana.
MR. SCHULTE said he just realized that AS 17.38.110(m) is
currently in 29-LS0345\S, and moved to page 3 of his memo
regarding the definition of "public place." There will be an
issue, whether commercial business or otherwise, wherein
marijuana might be lawfully be consumed on the premises, mainly
of a private business. He noted that the discussion today had
been about marijuana clubs and he offered other examples of a
trade show, or the Cannabis Cup. He remarked that those types
of events could allow consumption on the premises in a
designated area, equivalent to a beer garden. He pointed out
that within Title 4 of the alcohol regulations there are 22
different license types articulated, of which are temporary,
seasonal, and annual licenses. He submitted that the solution
for this issue is not to define what a public space is, but
rather provide a simple exception, which read:
AS 17.38.040 Public Consumption [BANNED, PENALTY]
It is unlawful to consume marijuana in public, except
on the premises of a marijuana establishment operating
under a state or local license or permit. [A PERSON
WHO VIOLATES THIS SECTION IS GUILTY OF A VIOLATION
PUNISHABLE BY A FINE OF UP TO $100].
MR. SCHULTE said the language solves the problem as in the event
the Alcoholic Beverage Control Board (ABC Board) determines
another permit type, or business type, it had already been
addressed in state statute. It is a permit with a
classification of temporary, seasonal or annual, he reiterated,
and it would be issued under whatever parameters deemed
appropriate where marijuana consumption would be lawful. It the
most concise solution to the problem, he opined.
2:40:08 PM
MR. HILYARD responded to Chair LeDoux that at first blush, Mr.
Schulte's recommendation could seem reasonable. He reiterated
that CSHB 75 is essentially the work product of municipalities,
and would ask the municipalities to weigh in.
2:41:08 PM
CHAIR LEDOUX said she would not close public testimony.
2:41:29 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:41 P.M.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB75 Proposed Draft Ver S.PDF |
HJUD 3/11/2015 1:00:00 PM |
HB 75 |
| HB75 Sponsor Statement, versionS.pdf |
HJUD 3/11/2015 1:00:00 PM |
HB 75 |
| HB75 Fiscal Note.pdf |
HJUD 3/11/2015 1:00:00 PM |
HB 75 |
| HB 75 Supporting Documents - Legal Memorandum, Equal Protection and household limits.pdf |
HJUD 3/11/2015 1:00:00 PM |
HB 75 |
| HB75 Supporting Documents - Legal Opinion, Administrative Procedures Act.pdf |
HJUD 3/11/2015 1:00:00 PM |
HB 75 |
| HB75 Supporting Documents - Legal Opinion, Establishment Revocation.pdf |
HJUD 3/11/2015 1:00:00 PM |
HB 75 |