Chris Hladick
AGO AN2016101562
No. AN2016101562
Alaska Attorney General Opinions
August 31, 2016
Chris
Hladick
Commissioner
Department
of Commerce, Community, and Economic Development
P.O.
Box 110800
Juneau,
AK 99811-0800
Re:
Marijuana Social Clubs
Dear
Commissioner Hladick:
You
have asked for a legal opinion about the consumption and
distribution of marijuana at so-called "marijuana social
clubs," a generic term for physical venues where
fee-paying patrons or members consume marijuana.
Your
first question is about marijuana consumption at such venues.
Alaska law prohibits consuming marijuana "in
public."
1 Regulations allow marijuana
consumption at licensed retail marijuana stores that have
state approval, but prohibit public consumption at all other
"places of amusement or business" and places to
which "the public or a substantial group of people has
access."
2 Thus, your question is whether people
may lawfully consume marijuana at an unlicensed place that
charges a fee for the privilege of entering and consuming
marijuana on the premises.
The
answer is no. If that place is not a licensed retail
marijuana store, consuming marijuana there is unlawful.
Charging people a fee to consume marijuana at a physical
venue, if done regularly and for financial benefit, is to
operate a business. The venue itself would therefore be a
"place of business" where it is unlawful to consume
marijuana, even if the venue's proprietor expressly
invites people to do so. And even if this operation did not
rise to the level of a business, the venue would still count
as "in public" if a "substantial number"
of people had access to it, so that consuming marijuana there
would be unlawful.
Your
second question is about the distribution of marijuana
samples at marijuana social clubs. Without a license from the
Marijuana Control Board, a person may not possess more than
one ounce of marijuana or transfer marijuana for
remuneration.
3 You have asked whether a person
without a Board-issued license acts unlawfully by charging
people a fee to consume marijuana at a physical venue if he
provides those people with marijuana samples.
If this
person has "dominion or control" of the marijuana
provided as samples— even if he does not own or have
physical possession of the marijuana—he is acting
unlawfully if the total amount of marijuana is more than one
ounce or if he receives payment for transferring that
marijuana to patrons.
LEGAL
BACKGROUND
I.
Alaska's marijuana laws and regulations.
Alaskans
voted in 2014 to liberalize personal use of marijuana and to
authorize a commercial marijuana industry regulated by a
Marijuana Control Board.
4 The resulting laws strictly control
the sale of marijuana and establish limits for personal
possession, use, and distribution of marijuana.
[5]
Lawful
personal use of marijuana entails the right to use, possess,
and purchase one ounce or less of marijuana as well as the
right to transfer one ounce or less of marijuana (and up to
six immature plants) to another person "without
remuneration."
6 A person may lawfully assist another
in personal use activities.
7 However, it is unlawful
to consume marijuana in public, with violations punishable by
a fine of up to $100.
8
Commercial
marijuana cultivation, processing, testing, and sale are
permitted only by four types of licensed "marijuana
establishments" : retail marijuana stores, marijuana
cultivation facilities, marijuana product manufacturing
facilities, and marijuana testing facilities.
[9] Each type of
establishment plays a distinct role in the marijuana
industry, must be licensed by the Marijuana Control Board,
and is subject to the Board's regulations.
[10]The
Board's regulations establish a licensing process, health
and safety measures, employee training requirements, and
other requirements for each type of
establishment.
11They also create rules for
enforcement and local government control.
[12] The
regulations prohibit consuming marijuana on the premises of
any licensed establishment except for permitted areas of
licensed retail marijuana stores.
13
Despite
the 2014 changes to Alaska's marijuana laws, it remains
unlawful to possess more than one ounce of marijuana without
a license and to sell marijuana without a license. Possessing
more than one ounce of marijuana remains unlawful under
Alaska's Controlled Substances Act;
14 only licensed
marijuana establishments are exempted.
15 The Controlled
Substances Act also criminalizes possessing any quantity of
marijuana "with the intent to manufacture or
deliver."
16 This prohibition is partially
supplanted by the 2014 amendments, which allow possessing or
transferring up to one ounce of marijuana "without
remuneration"
17 and permit licensed marijuana
establishments to sell marijuana to consumers.
[18] But for
those without a Board-issued license, transferring marijuana
for remuneration remains illegal.
19
II.
Federal marijuana laws.
The
federal Controlled Substances Act prohibits possessing and
selling marijuana.
20 The U.S. Department of Justice has
advised that federal officials are less likely to enforce the
prohibitions on marijuana in states that have legalized
marijuana possession and sale if these states'
regulations support the federal government's enforcement
priorities: preventing distribution to minors; preventing
revenue from marijuana sales going to criminal enterprises;
preventing drugged driving and other adverse public health
consequences tied to marijuana use; and preventing violence
and the use of firearms in the cultivation and distribution
of marijuana.
21 Yet the Department of Justice's
current enforcement policy is no guarantee against federal
prosecution. The Department of Justice cautioned that
"[i]f state enforcement efforts are not sufficiently
robust to protect against [those harms,] the federal
government may seek to challenge the regulatory structure
itself in addition to continuing to bring individual
enforcement actions, including criminal prosecutions, focused
on those harms."
22 The Department of Justice could
also choose to resume enforcing federal laws against
marijuana possession and transfer at any time.
ANALYSIS
I.
Alaska law prohibits the consumption of marijuana at a place
where a fee is charged for that privilege unless that place
is licensed as a retail marijuana store.
Soon
after the 2014 changes to Alaska's marijuana laws, people
began to operate physical venues where guests are invited to
consume marijuana and marijuana products in a physical
setting resembling a café, lounge, or nightclub. These
venues, generically termed "marijuana social
clubs," typically charge an entry or membership fee or
demand a "donation". These venues do not purport to
operate as retail marijuana stores authorized by Alaska's
marijuana statutes
23 and are not licensed by the
Marijuana Control Board.
Because
Alaska law prohibits consuming marijuana in
public,
24 consuming marijuana at these venues
is legal only if they are not operating "in
public." The Alaska Statutes do not define what places
are "public" for purposes of the ban on public
consumption, but the Marijuana Control Board has defined the
term in a way that appears to prohibit consumption at these
"marijuana social clubs":
"in public" (A) means in a place to which the
public or a substantial group of people has access; (B)
except as provided in (C) of this paragraph, 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 apartment designed for
actual residence; [and] (C) does not include an area on the
premises of a licensed retail marijuana store designated for
onsite consumption under 3 AAC 306.305.[25]
Depending
on the particular facts, an unlicensed physical venue where
people are invited to pay a fee for the privilege of
consuming marijuana on the premises would be a "place[]
of amusement or business" or a "place to which the
public or a substantial number of people has access."
A.
"Place of amusement or business"
The
prohibition against public...