Bill allowing rural pot opt-out passes 37-1
After a hiatus, House Bill 75 reappeared on May 16 to sail through conference committee unopposed and passed 37-1 on the final day of legislative session.
The bill, sponsored by Rep. Cathy Tilton, R-Wasilla, began as an administrative bill to allow the Marijuana Control Board to request fingerprint background checks from the FBI. The bill morphed over time, however, as rural Alaska concerns arose over local control.
The background check provision eventually passed through another bill, leaving HB 75 without the original intent.
“This is a very scaled down version of both bills,” said Heath Hilyard, Tilton’s chief of staff.
The current incarnation of HB 75 would allow established villages in the unorganized borough of the state to opt out of commercial marijuana activity, set a 12-plant household limit for personal home grows, and clarified that borough-wide bans would only affect unincorporated areas.
The unorganized borough refers to the parts of the state not within the 19 organized boroughs.
HB 75 stalled in April over the Senate’s version of the bill, which would have automatically banned commercial marijuana in the unorganized borough. The new bill merely gives established villages in the unorganized borough the ability to opt out, a power it does not currently have under statute.
Sen. Lyman Hoffman, D-Bethel, introduced the automatic opt out idea that caused the bill to stall, fearing marijuana could bring the same problems to the village alcohol brought.
Title 4, the section of Alaska statute dealing with alcohol, gave villages no method to halt alcohol sales. Ballot Measure 2 created the same problem. Ballot Measure 2 passed in 2014 to legalize recreational marijuana commercial business.
“As the ballot was written,” explained Hilyard, “there was no way for established villages to opt out.”
At the last conference committee held April 13, Hoffman said, “Title 4 was flawed. It started out with those communities wet, and they had to go through all that pain and suffering.”
The problem lies in the Ballot Measure 2 definitions, which don’t deal with established villages at all.
Ballot 2 does give local authorities the ability to opt out of commercial marijuana, and several towns, cities, and boroughs have already used the local control options to enact temporary or permanent ordinances against some or all components of commercial marijuana, including Craig, Delta Junction, Palmer, Soldotna, Unalaska, Valdez, Wasilla, Kodiak Island Borough, and Mat-Su Borough.
However, local control only applies to municipalities.
“’Local government’ means both home rule and general law municipalities, including boroughs and cities of all classes and unified municipalities,” according to the measure’s definitions.
This leaves established villages in the unorganized borough without any means of local control beyond Tribal councils or the Legislature itself.
Tribal councils can enact local controls. According to Alcohol and Marijuana Control Office records, Metlakatla Indian Community has enacted a commercial marijuana ban by Tribal council action in accordance with federal laws. Native Village of Kipnuk has banned all marijuana sale or import for sale by Tribal ordinance.
Jesse Logan, chief of staff for Sen. Lesil McGuire, R-Anchorage, said the state wants to avoid conflicts between Tribal ordinances, which don’t require public vote, and the state’s laws, which do.
“The Tribal authority is always in contention with the state,” said Logan. “Since the ballot measure was enacted by a vote of the people, it seems congruous to have the opt out provisions be subject to a vote of the people.”
The Legislature does have the authority to act as the local authority for established villages, but rarely uses it. With upward of 100 established villages, the Legislature would be hard pressed to convene and deliberate each time a village wants to opt out.
HB 75’s fix mirrors the way the Legislature solved the same problem with Title 4. It allows villages of 25 residents or more within a five-mile radius to submit a ballot initiative to ban marijuana if 35 percent of registered voters in the area petition for it. In this way, the bill gives local control to a public vote.
Another of the bill’s provisions makes the local option non-area specific. This means a borough-wide ban would not apply to cities within the borough that keep commercial marijuana legal.
Again, this portion of the bill mirrors Title 4 provisions, Hilyard said.
For the Mat-Su Borough and Houston, the language is unnecessary to prevent borough law from overriding city law.
Houston is the only incorporated city in the borough without a commercial marijuana ban. The borough itself enacted a moratorium on commercial marijuana on May 3, and will vote Oct. 4 to ban it indefinitely. The ballot measure specifies it will only affect unincorporated borough areas.
Borough Mayor Vern Halter vetoed the moratorium on May 16. Halter said the borough has made marijuana regulations “cumbersome and confusing” and should welcome the income stream rather than creating codes it has little manpower to enforce.
“We are a large and diverse borough outside our cities,” wrote Halter. “I have no problem with the cities regulating within their borders but it is better to allow the state to regulate outside our cities and for the borough to tax and receive revenue from the sales.”
The veto had the lifespan of a fruit fly. The following day during its regular meeting, the borough assembly unanimously overturned the mayor’s veto, just as it unanimously voted in favor of the moratorium on May 3.
Assembly members echoed member Randall Kowalke’s rationale when he introduced the moratorium in April. Kowalke said he wanted a “time out” for marijuana industry development, and that had concerns that cannabis businesses could crop up in de facto residential neighborhoods in the borough, which has no zoning laws.
“I will not support anything that does not protect residential property owners from businesses being located within residential subdivisions,” said member Steve Colligan. “We don’t have zoning like Anchorage does. It’s a little more difficult.”
Member Jim Sykes did add an amendment that sunsets the moratorium on Aug. 17, giving would be cannabis growers several weeks to grow in between the sunset and the Oct. 4 ballot. If the borough ban is successful, the sunset will mean little. Cannabis takes a minimum 100-day period to grow to maturity.
The bill also sets a household limit of 12 cannabis plants, which follows Colorado’s lead but may or may not run afoul of cannabis law that predates Ballot Measure 2.
Plant limits have been a touchy subject in the Legislature, Hilyard said, and parties have not yet agreed on anything more than that the state ought to have limitations.
“Both regulators and law enforcement said, ‘we don’t care what the plant limit is, we just need one,’” Hillyard said.
According to the measure, each Alaskan over 21 years of age may grow six plants for personal use, with no more than three plants in bloom at a time. The measure didn’t clarify, however, how that would extend to a household of several adults.
Colorado allows personal marijuana grows of six per adult and a maximum 12 per household. Oregon allows only four plants per household. Washington allows no personal cultivation.
Like the established village portion of the bill, Hillyard said the latest version takes cues from Title 4, trying to match cannabis with alcohol’s fine line between commercial use and personal consumptive use.
Alaskans are allowed to brew up to 200 gallons of beer annually for personal use. Hilyard said the 12-plant limit is a rough proxy for the level of intoxication 200 gallons of beer could provide.
Hilyard said the predominant legislative view holds that an ounce of cannabis roughly equals one pony keg of beer — five gallons — in its capacity for intoxication.
In the hands of an experienced grower, 12 plants can yield roughly 10 pounds of cannabis annually, or 160 ounces. By this math, a 12-plant limit equivalent would equal 800 gallons of beer, four times the intoxicative power allowed to personal alcohol consumption.
Hilyard said the limit seeks to establish a clear line between personal and commercial marijuana cultivation, specifically, not to allow a sizable black market grow that black marketers could pass off to personal use.
Even at low quantity, cannabis has market value; 10 pounds of marijuana sold at the typical $250 to $400 per ounce black market price could be worth between $40,000 and $64,000, approaching twice the average Alaska per capita annual income of $33,062, according the U.S. Department of Census data.
Allowing only 12 plants, however, digs into gray area of existing Alaska law.
In 1975 in Ravin vs. State of Alaska, the Alaska Supreme Court decided that the Alaska Constitution’s right to privacy clause protects small cultivation and possession of marijuana.
“We conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown,” reads the ruling.
The Ravin Doctrine neither guarantees marijuana possession nor sets definitive household allowance, but in several subsequent cases concerning the precedent Ravin vs. State of Alaska, the state ruled it would not make laws against small gardens under 25 plants.
“There’s a gray area around the 12-plant limit,” said Logan. “Ballot 2 specifies that it won’t try to subvert Ravin, but Ravin offers protections to anyone growing up to 24 plants.”