Marijuana board calls meeting to revise grow rules

The Marijuana Control Board will need to immediately revise a regulation it passed on July 8, an action that’s become a pattern for a board creating an industry from scratch.

The July 7-8 meeting reviewed public consumption provisions, awarded licenses, and made changes to enforcement officers’ powers. The board will convene an emergency meeting on July 14 to remedy a cultivation regulation flub that would potentially have bankrupted some of the earliest entries to the industry.

“At the meeting the Marijuana Control Board will discuss and may amend preliminary inspection requirements regarding adopted policy decisions relating to licensing of marijuana cultivation facilities,” according to a public notice of the meeting, which will be held telephonically. “No public testimony will be taken during this meeting.”

The board passed a measure during its July 7-8 meeting that would have limited cultivators to six so-called “mother plants” before their initial inspection.

Mother plants are grown cannabis plants from which cultivators can cut whole stems, called clones, which will then grow on their own as viable plants of the same strain.

The board made this regulation with the intent to create an equitable entry for Alaska cannabis grower and to avoid legal scrutiny.

Alaska statute allows the personal possession of six cannabis plants for personal use. In theory, a cultivator could “gift” itself six viable mother plants and still be in the realm of legality.

If interpreted literally, however, the regulation doesn’t mesh with directives from the Alcohol and Marijuana Control Office, or AMCO, for some cultivators whose licenses were in an “active” state prior to the board’s July 9 meeting.

In a letter, AMCO outlined instructions for these cultivators. These include securing fire marshal approval, local government approval, meeting certain training requirement for the state’s tracking system, METRC, and ordering METRC tracking tags.

AMCO appeared to have an understanding that cultivators would be cultivating clones in the time between license issuance and final inspection, but did not mention quantity limits, only size and tagging requirements.

“Make sure that you are within approximately seven days of your inspection when you tag your plants,” read the instructions. “The plants will be approximately 6-18 inches tall on the day of your initial inspection.”

Several cultivators across the state have spent the last month cutting clones to be in the ground, tagged, and ready for final inspection, including Kenai’s Greatland Ganja, Fairbank’s Rosie Creek Farm, and Juneau’s Rainforest Farms.

Mike Emers, an owner of the already-established organic outdoor produce grower Rosie Creek Farm, said he already has large crop of clones beneath the 18-inch limit. If forced to throw them away, his outdoor cultivation couldn’t produce another viable crop with only six mother plants before Alaska’s short growing season ends.

“There’s nothing I could do, the plants were already planted,” said Emers. “I have to get a crop in this year. I can’t have a different start date.”

Leif Abel, owner of Greatland Ganja, operates an indoor grow facility, but said a six mother plant limit would bankrupt him. His roughly $500,000 facility depends on the large crop of clones he’s been cultivating since June 9 to recoup the investment, he said.

“No other state has been asked to come online with six plants,” Abel said. “It’s like telling an oil producer to build all this infrastructure and then only pull five barrels of oil in the first year.”

The board members believed they had only been voting on mother plants, rather than total plants. AMCO and the board will hold an emergency meeting on July 14 to correct the inconsistency.

 “After the meeting was adjourned, I was informed by the chair that the board was confused about the action they took regarding how many plants could be on a cultivation premises at the first preliminary inspection,” wrote AMCO and board director Cynthia Franklin in a letter to staff and industry members.”

The Marijuana Control Board has needed to undue several decisions in a similar manner in the first year of its industry oversight.

In an emergency meeting, the Marijuana Control Board voted unanimously on Dec. 1 to reinstate a stricter residency requirement for marijuana business licensees, following Permanent Fund Dividend residency rules (one calendar year in the state) instead of voter registration rules.

Earlier, a Nov. 20 meeting opened the Alaska cannabis market to more Outside presence than some industry members liked. That amendment had loosened residency requirements to voter registration standards, which only require an Alaska address and a 30-day wait.

In draft regulations stages in September, the board passed regulations that would have banned marijuana social clubs where consumption but no sales take place. The board later reversed that vote and said it could neither ban nor endorse licenses for marijuana clubs until the Legislature creates the license type in statute, which it has yet to do.

It was at this meeting the idea for onsite consumption provisions for retail stores made its way onto books, which allow retail stores to have adjoining rooms for customers to consume what they have purchased from the retail store.

Onsite consumption

Retail licenses are still a few months away from being issued while waiting on crops to grow. In the meantime, the board is still shaping how onsite consumption will look, and reviewed a draft of regulations.

Some of the board’s members thought the onsite consumption draft strayed too far from the original intent to tie consumption to retail purchases.

The draft would require retailers make distinct sales for marijuana to be consumed in their shop, rather than customers consuming some of what they bought for personal use. Retailers would sell up to one gram of flower or bud for onsite use, and have to monitor users for overconsumption.

Consumers would not be allowed to leave the shop with anything they’d bought for onsite consumption, which public commentators and board members alike feared could lead to overconsumption.

“We have turned this into marijuana bars, from the looks about it,” said member Mark Springer. “My desire is to see a space where people can purchase products and consume a legal portion of them, and then leave with the remainder held by them in a legal fashion.

“I think that’s going to be a lot more palatable to the public than commercial marijuana clubs, which is what people see, and I can fully understand their concern about that.”

Amendments offered by Springer and Brandon Emmett revised the onsite consumption draft. Springer’s amendment changed language to allow customers to consume from what they purchased as a regular retail purchase. Emmett’s would allow customers to take home their unfinished marijuana in a childproof container — the marijuana equivalent of a “doggie bag,” as assistant attorney general and board legal counsel Harriet Milks put it — thereby avoiding scenarios where customers smoke more than they can handle in order not to leave any behind.

The board voted 4-1 to submit the new draft for public review. Only Loren Jones voted against.

The amendments intended to address several public commentator concerns, not least of which came from the Municipality of Anchorage, which has not only the largest amount of retail stores applying for onsite consumption provisions but the only marijuana social club free of legal challenge.

The Municipality of Anchorage weighted in heavily on issue with a detailed letter from Erika McConnell, the marijuana coordinator for the municipality. 

“There is perhaps good reason that this step has not been taken in other states, as regulating a marijuana bar raises significant concerns,” the letter states. “There is as yet no physical test to determine marijuana impairment, leaving only subjective behavioral tests which will probably be inconsistently applied. Limiting onsite consumption to marijuana that is in the state’s tracking system will be difficult if not impossible. And the very nature of this concept encourages marijuana consumption outside the home which will increase the likelihood of public intoxication and impaired driving.”

McConnell wrote that the city is still considering whether or not to allow onsite consumption in city limits.

“At this time onsite consumption is prohibited in Anchorage by municipal code,” the letter reads. “The administration is continuing internal discussion on the issue of social consumption of marijuana — whether to allow it at all, and if so, whether to allow it through the onsite consumption provision or through the social club model.”

Smoking and driving drives a large part of the fears from regulators regarding onsite consumption.

The board takes the concerns seriously, but as of now the state has no statistics to prove that marijuana consumption either increases impaired driving or has no effect on impaired driving at all.

“We haven’t gotten that far in our record keeping,” said an Anchorage Police Department representative.

The most well established area for non-home marijuana consumption is Pot Luck Events in Downtown Anchorage. Pot Luck Events has no endorsement from the Marijuana Control Board, but exists in a still-hazy legal area that has allowed it to continue operating as a private club where paying members can bring their own cannabis and consume onsite.

Anchorage police records don’t track DUI violations according to the substance ingested. Rather, to track for what impairing substance, police must backtrack each violation and check whether the offender registered 0.0 percent blood alcohol content, then further check violation records to find what substance was in question.

Peninsula conditions and enforcement

Several applications from the Kenai Peninsula were only approved conditionally.

The Kenai Peninsula Borough submitted letters to the board asking that it require three conditions for each of the approved licenses. Under state regulations, the board has to approve such local conditions unless they are “arbitrary, capricious, and unreasonable.”

KPB’s conditions require that the marijuana establishment shall conduct their operation consistent with the site plan submitted to the Kenai Peninsula Borough, that marijuana establishments allow no parking in borough rights-of-way, and that the marijuana establishment shall remain current in all Kenai Peninsula Borough tax obligations consistent with local law.

The board eventually allowed the licenses, not wanting further delay, but not before a lengthy discussion with KPB legal clerk Johni Blankenship. The discussion distilled to a question of enforcement, specifically whether or not the state or the borough would have enforcement powers over parking, taxes, and site plans.

Enforcement

AMCO enforcement officers will now have the authority to cite and make arrests for unlicensed marijuana activity or other marijuana-related offences.

The board narrowly passed the measure with a 3-2 vote, with Brandon Emmett and Bruce Schulte fearing unforeseen consequences for an industry already suspicious of law enforcement.

“I don’t think we fully understand the scope of this proposal,” said Schulte.

Franklin took umbrage at the idea the regulations would expand police powers. Enforcement officers are already fully sworn police officers, simply with special duties. The regulation would give them the power to have enforcement capabilities for regulatory matters as well as legal matters.

“This is not expanding their authority,” Franklin said. “This is activating their authority. This is not about arresting people; this is about protecting our licensees. This is the authority to shut down illegal competition with our licensees.”

Board chair Peter Mlynarik, himself the police chief of the Soldotna Police Department, said the more help, the merrier.

“I don’t think you confront the problem by totally removing law enforcement from it,” Mlynarik said. “I welcome having additional people who would help out in additional cases like that.”

Tourism

Tourism may be good for green tours, but the chances for having a cultivator’s license approved seemed to improve the more the applicants expressed disinterest in tourism.

Tourism has reached a height of curiosity among the board thanks to an Alaska Dispatch News article detailing “green tours,” which would take Alaska visitors to see commercial marijuana businesses including cultivation facilities.

Companies in tourist-heavy Southeast Alaska have already begun cropping up.

The board appeared to think the prospect of tourism companies could lead to security problems and license protests from neighbors. Members asked many applicants whether or not they would be interested in taking part in green tourism.

Cultivators, each of whom were approved, invariably answered no, drawing satisfied responses from the board.

Some companies have already had problems with curious rubberneckers, drawing questions about security plans from the board.

“People have been showing up asking about it because they’ve read about it online,” said the proprietor of Farmer Jack’s LLC, an Anchorage cultivator. “We’ve been having to ask people to leave.”

DJ Summers can be reached at daniel.summers@alaskajournal.com.

 

Updated: 
07/13/2016 - 11:12am

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