Pot: What’s legal, what’s not

Editor’s note: In this two-part series, the Homer News looks at what Ballot Measure 2 means. This week we look at what happens next Tuesday, when pot becomes legal in the home. Next week we look at what happens next as the state works to regulate the marijuana industry.

In October 1972, the late Irwin Ravin of Homer deliberately got arrested for possessing marijuana, an action that led to the landmark Alaska Supreme Court decision, Ravin v. Alaska, that established the right to possess small amounts of marijuana in the privacy of one’s home.

“It wasn’t about pot. It was the right to privacy,” Ravin said in an October 1990 Homer News article. “It was a philosophy of freedom from government intrusion into personal life.”

The freedom to use marijuana in the home becomes more expansive next week. When the sun rises on Feb. 24, the personal cultivation, possession and use of marijuana will be legal not just by court ruling, but by enacted law. 

Alaska has the highest per capita adult usage of marijuana in the country and the fourth highest usage by people of all ages, according to Cynthia Franklin, director of the Alcoholic Beverage Control Board. The initiative gives the ABC board the power, duties and responsibilities relating to control of marijuana. 

In spite of its use, people seem naive about pot’s presence in Alaska, according to Franklin.

“This is not a substance that’s coming in. This is a substance that’s here. We’re attempting to go from it being illegally here to being legally here,” said Franklin.

That transition starts on Feb. 24, the effective date of new laws passed with Ballot Measure 2 in the November election. On Tuesday, a person 21 years of age or older can legally possess, use, display or transport 1 ounce of marijuana or up to six marijuana plants. It also starts the clock ticking on another section of the citizen initiative, the process toward adopting regulations for the commercial cultivation, transport and sale of marijuana.

If that seems straightforward, think again.

“The Legislature has at least six bills before it relating to marijuana,” said Franklin. “There are bills coming out every day. Look at the legislative schedule for next week. There are six hearings on marijuana. The next highest topic is oil and gas and there are three hearings on that.”

Franklin described the understanding of the new marijuana laws as an “unfolding thing, day by day, until the end of the (legislative) session and then we should have several sets of rules in place … then we know what we’re working with.”

It is, she said “lots of layers all moving at the same time, with many, many moving parts.”

All the unanswered questions leave a lot to learn. 

“People have a lot of questions. We want people to have answers,” said Franklin. 

Toward that end the ABC board has compiled a lengthy list of frequently asked questions. They can be found online at commerce.state.ak.us/dnn/abc/resources/MarijuanaInitiativeFAQs.aspx.

Here are some of those answers.

Q: Who can possess marijuana?

A: Any adult age 21 and older.

Q: What about those under 21?

A: Marijuana remains illegal for those under 21. Under one proposed bill, Senate Bill 30, adults over 18 and under 21 would be charged with a new offense, seventh-degree misconduct involving a controlled substance, for possessing 1 ounce or less of marijuana, a fine punishable by not more than $100.

Q: How much marijuana can an adult grow for personal consumption?

A: Adults can possess or grow up to six plants per household, with three or fewer of those mature and flowering. Flowering plants are those with buds, the part of the plant with the highest concentration of tetrahydrocannabinol, or THC, the chemical that gives marijuana its effect. The ABC board says the initiative doesn’t change other laws defining possession and adults can’t combine personal-use plant and harvested marijuana limits to increase the legal limit.

Q: Where can marijuana for personal cultivation be grown?

A: The initiative says “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 aids.” Practically speaking, because of Alaska’s short growing season, most marijuana will be grown in greenhouses or inside with grow lights.

Q: How much processed marijuana can an adult possess?

A: In addition to plants, Alaskans can possess in the home up to 1 ounce per household, according to the ABC board.

Q: What about possessing personal use marijuana outside the home?

A: It’s legal to transport 1 ounce or less or six plants. 

Q: Can that amount of marijuana be given to another adult?

A: Yes, but without remuneration, that is, payment in cash or other consideration.

Q: Can an adult help another adult grow or transport personal-use marijuana?

A: Yes. Ballot Measure 2 makes legal not just possessing and using marijuana, but other personal use associated with it.

Q: Outside of the home, where can marijuana be used?

A: That’s the big question. Ballot Measure 2 says that “nothing in this chapter shall permit the consumption of marijuana in public,” but it doesn’t define “public.” Public consumption is banned, with a violation punishable by a fine up to $100.

Q: How will public use be defined?

A: “That’s one of the biggest things missing in the initiative is defining public places,” said Homer Police Chief Mark Robl. “For now, for us, a public place for marijuana is the same as for alcohol use.”

Robl said that means not at schools, not on sidewalks, not in common areas, not on the beaches or at city parks.

“We expect it to be defined by the board on Feb. 24 by virtue of a process called an ‘emergency regulation,” said Franklin of the ABC board. “That bypasses the public input process, but it’s an emergency because we all need to know by Feb. 24 what ‘public’ means.”

An emergency regulation would be good for 120 days “during which time we would expect either the Legislature or the long-term public regulations process will provide more permanent means of defining that,” said Franklin.

Some municipalities have taken steps to define what public means for their areas. The City and Borough of Juneau earlier this month unanimously added marijuana to its secondhand smoke rules, which states that smoking marijuana will not be allowed in “bars, private clubs, and any other enclosed space where marijuana or alcoholic beverages are sold, or food is offered for sale.”

Q: Can people smoke pot in a vehicle?

A: One proposed law, SB 30, would add marijuana to the state open container law and prohibit an open marijuana container. The proposed law also says that a way to determine marijuana is in an open container is if “there is evidence marijuana has been consumed in the motor vehicle,” that is, if it has been smoked. Under SB 30, it would be legal to transport marijuana in the trunk of a car or if enclosed in another container.

Q: Is it legal to use marijuana and drive?

A: Not under the influence.

“Marijuana will continue to be a controlled substance following the effective date of the initiative. Therefore, it will still be a crime under AS 28.35.030 to drive a motor vehicle while under the influence of any controlled substance, inhalant, alcoholic beverage, or any combination of those substances,” said Franklin.

As is the case now, Homer Police will continue to investigate driving under the influence of marijuana. “We’ve made cases based on drug use other than alcohol and charged driving under the influence,” Robl said. “It’s not entirely new ground for us.”

One challenge under current DUI laws is proving impairment by marijuana use. In a 2011 Homer case, Alaska State Troopers charged with DUI a Homer man who they said was incoherent at a crash scene and had a blood test of 5.7 nanograms per milliliter of THC. The standard of 5 nanograms/milliliter is what Colorado, one of the other states with legal marijuana, has established as a threshold for intoxication. 

If police suspect marijuana intoxication, they would need a warrant to draw blood, Robl said. “I would expect we’re going to see some changes to the law so there is a blood test requirement for marijuana as there is for alcohol,” he said.

Q: How do federal laws affect legalization in Alaska?

A: Four states — Alaska, Oregon, Colorado and Washington — have legalized recreational marijuana and 22 states have legalized medical marijuana, according to Franklin. That doesn’t change federal law, which lists marijuana as a Schedule I drug.

“Schedule I drugs, substances or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Schedule I drugs are the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence,” according to information provided by the U.S. Drug Enforcement Administration. Other Schedule I drugs include heroin, LSD, ecstasy and peyote.

A 2013 memo from the U.S. Attorney General’s Office stated the federal position on marijuana, which “basically says that for now, the federal government is not going to prioritize enforcement of marijuana prohibition on a federal level against any business that is operating within the framework of legalized state regulations,” said Franklin. “In other words, if a state legalizes and creates regulations and issues licenses and businesses are relying on state law and their activities are legal and they’re complying with state regulations, the feds have pretty much said ‘we will not come after you, shut you down, seize inventory and prosecute you for violating federal law.”

Q: What about transporting marijuana on boats?

A: U.S. Coast Guard regulations prohibit marijuana use by licensed captains and crews.

“If you’re smoking pot in your boat, the Coast Guard will charge you after Feb. 24 the same as today,” Robl said.

Q: Is it legal to mail marijuana through the U.S. Postal Service?

A: No.

Q: Can marijuana be shipped by private companies?

A: The new Alaska laws allow for transporting marijuana, marijuana plants and accessories from one person to another, but how to get it there is another issue.

Because of federal laws, “transporting marijuana by plane or by marine vessel or rail is going to be nigh impossible. … Transportation problems become an issue,” said Franklin.

As an example, Franklin said a Matanuska-Susitna valley grow operation would not be able to supply marijuana to Juneau, a city only accessible by air or water.  

Charlotte Sieggreen, marketing manager for Ravn Alaska, said Federal Aviation Administration regulations prohibit the company from transporting marijuana.

“Until something changes on the federal level, we’ll continue to not carry any sort of marijuana substance,” said Sieggreen.

Corporate policies, as well as federal law, also rule out FedEx when it comes to a transporting.

“Although the use of marijuana is permitted under certain circumstances within some states, we are a global transportation provider and marijuana is prohibited in our networks both by federal law and by our policies,” said Scott Fiedler, with FedEx media relations.

The legality of transport by road is a question Alecia Claunch of Stage Line is still trying to figure out. Until she has a clear answer, Claunch is steering clear of any potential problems. “Because I’m registered with the U.S. Department of Transportation, it’s whatever the feds say,” said Claunch.

Q: Can private businesses and others prohibit marijuana?

A: Yes. The initiative allows homeowners, businesses, employers, schools, hospitals, corporations or anyone who owns or controls private property to prohibit or regulate possession, consumption and use of marijuana on that property.

For Lara McGinnis, manager of the Kenai Peninsula Fairgrounds in Ninilchik, smoking marijuana falls under already established fairground do’s and don’ts. “We’re already a nonsmoking facility so it has zero impact,” said McGinnis of the new law. “It’s a nonissue. We do not allow any smoking on the grounds.”

Q: What legislation is in the works?

A: Pieces of legislation currently being considered by the Legislature include:

• House Bill 59, sponsored by Rep. Paul Seaton, R-Homer, relating to marijuana concentrates, introduced Jan. 21, and currently in the House Health and Social Services Committee;

• House Bill 75, sponsored by the House Community and Regional Affairs Committee, relating to the regulation of marijuana by municipalities, introduced Jan. 23 and currently in the House C&RA committee;

• House Bill 79, sponsored by the House Judiciary Committee, relating to minor driving motor vehicles when there is an open marijuana container, introduced Jan. 26, and currently in the House Judiciary Committee;

• Senate Bill 30, sponsored by the Senate Judiciary Committee, relating to driving motor vehicles when there is an open marijuana container, introduced Jan. 23, and currently in the Senate Judiciary Committee.

Upcoming teleconferences on marijuana-related legislation:

Feb. 20: SB 30, Senate Judiciary Committee, 1:30 p.m.

Q: If the state doesn’t enact regulations, will the city of Homer step in?

A: The initiative allows local governments to prohibit or regulate commercial marijuana cultivation or sale, but not personal use and cultivation. The Kenai Peninsula Borough Assembly is considering an ordinance prohibiting the cultivation of marijuana in unorganized areas of the borough such as Diamond Ridge, Anchor Point and Fritz Creek.

In Homer, the city is taking a wait-and-see approach, Robl said. In discussions with interim City Manager Marvin Yoder, former City Manager Walt Wrede and Mayor Beth Wythe, “We decided we would wait and see what came out from the state and then deal with any requests from the council,” Robl said.


Ballot Measure 2 – marijuana initiative timeline
(from Alcoholic Beverage Control Board website)

Nov. 4, 2014: Statewide election held. Ballot Measure 2 passes 53 percent to 47 percent.

Nov. 24, 2014: Vote certified by Division of Elections. Statutes will be enacted by operation of law 90 days later.

Jan. 20, 2015: Legislature gavels in.

Feb. 24, 2015: Statutes of Ballot Measure 2 will be enacted. Personal use and cultivation of marijuana becomes legal. It is anticipated that the ABC Board will issue emergency regulations defining public use.

The nine-month deadline for developing regulations for the commercial cultivation and sale of marijuana begins.

Nov. 24, 2015: Deadline for the Alcoholic Beverage Control Board to adopt regulations for commercial marijuana; if not adopted by this date, local governments have the option of establishing their own regulations. A final regulations package is to be submitted to the Governor’s Office and Department of Law for review and approval.

Feb. 24, 2016: Board must start accepting applications and must act on them within 90 days of receipt of application. If the board has not adopted regulations, applications may be submitted directly to local regulatory authorities.

March 26, 2016: Tentative effective date of regulations; effective date will be 30 days after the Lt. Governor’s Office files the approved regulations.

May 24, 2016: Initial marijuana industry licenses expected to be awarded.