This week, David asks a two-part question:

I have read the initiative along with the newly passed H.B. 123. I have gone over again and again, and I have yet to see any writing prohibiting a marijuana business from starting before the state starts issuing cannabis business licenses. If anything, I see that it says that a person can, so long as they are 21 or older, act as a lawful business. (Also) H.B. 123 states that one seat on the board is reserved for "one person actively engaged in the marijuana industry," and "marijuana industry" means "a business or profession related to marijuana in which the person is lawfully engaged and that is in compliance with the provisions of state law, including this chapter and regulations adopted under this chapter." How can someone qualify for this seat if what (authorities) talk about is true and no marijuana business can be lawfully engaged at this moment?

Let's go in order, shall we? The writing that authorities are using to base their repeated statements that marijuana-relate businesses are operating outside the law is in Sec. 17.38.070, which took effect as part of the voter-approved Ballot Measure 2, and which David included with his question:

(a) Notwithstanding any other provision of law, the following acts, when performed by a retail marijuana store with a current, valid registration, or a person 21 years of age or older who is acting in his or her capacity as an owner, employee or agent of a retail marijuana store, are lawful and shall not be an offense under Alaska law or be a basis for seizure or forfeiture of assets under Alaska law:

After that passage comes a list of things that are lawful for someone to do if they meet that paragraph's standards. David correctly notes that the language says that people 21 and older who own or are working for or on behalf of a retail business are lawful when they're doing certain related activities for a business like that. But the key clause comes before the one about owners and employees, and it appears to eliminate wiggle room.

Read more Highly Informed: Seeking answers to Alaska's cannabis questions

That clause says that the list of acts is lawful for a business to perform "when performed by a retail marijuana store with a current, valid registration." And if there's no way to get a valid registration or keep it current, as is true currently, then, well, that business would not be able to satisfy that clause and would be, as authorities keep contending, operating in an unlawful manner. But that should not be misunderstood as a comment on the chances any early-operating business would be charged, or what chances might be in court to defend any charges that may or may not come their way. Those are separate, and much trickier questions.

It's also worth noting that the Legislature didn't remove cannabis from the controlled substances list, and didn't update any of the related criminal statutes in light of legalization. Cannabis is essentially living a dual life when it comes to what's on the books. A bill that would've done something to change that status, SB30, went through a great deal of back and forth, eventually passed the Senate and ended the session on its first referral to the House Judiciary Committee, where it will await the beginning of next session.

Contradiction on requirements for board members?

As David asks in part two, assuming authorities are correct and none of the cannabis businesses operating currently are doing so lawfully, it does seem to pose a contradiction when trying to fill the seat on the five-member Marijuana Control board set aside solely for a member of the cannabis industry. The other seats provide seats for people with connection to public safety, public health, one for a rural resident, and one for a member of the general public or the cannabis industry. The seeming contradiction comes in for David because authorities do keep warning that cannabis businesses of some kinds (from co-operative growing and delivery and testing) are operating over the line, and some of those businesses are even opting to shut down or change business models.

Alcoholic Beverage Control Board Director Cynthia Franklin, the official tasked with leading the effort to create regulations, said in a phone interview that that very contradiction was identified and discussed in the Legislature last session, and that it resulted in some new language in H.B. 123 intended to resolve the contradiction. The language comes in Section 10 of the act:

(b) Notwithstanding AS 17.38.080(b)(4) and (5), the governor, in making the initial appointments to the Marijuana Control Board, shall appoint two persons with experience in the marijuana industry obtained through lawful participation in the marijuana industry or participation in an academic or advocacy role relating to the marijuana industry.

The "Notwithstanding 17.38.080 (b) (4) and (5)" part just refers to the section that provides for the two seats, one that must be filled by someone with industry experience, and one that can either be a member of the public or someone with industry experience.

Franklin said that added language, limited to the initial appointments, will allow a member to be named to a seat reserved for industry who has either industry experience from another state where cannabis is legalized, or who has experience in a different regulated industry and a lot of education about legal marijuana, either through seminars and workshops in Alaska or Outside.

It is significant, however, that Franklin's remarks did not include a mention of experience with cannabis industry activity that has been deemed unlawful, and significant that the language quoted above specifically requires the experience to be through "lawful participation."

Public comment opens on cannabis regulations

Highly Informed readers may also be interested to know that the state Alcoholic Beverage Control Board has given public notice of the first wave of newly proposed regulations regarding cannabis, focused this time on the local-option laws and various definitions. The public comment period is open until June 20, 2015. Proposed regulations and complete guidelines for sending in written or electronic comments and questions are available online, as is an Alaska Dispatch News report of the notice.

Temporary hiatus, don't freak out

Also, just so everyone knows what's going on, after this installment, Highly Informed will be going on hold until the second week of June, no more than three weeks total. Nothing sinister's afoot, just a colleague's vacation that's been in the works for some time and that we couldn't cover enough to keep my time free for this column. We regret the gap, but it can't be helped, and Highly Informed will definitely be back. Thank you for your patience and continued interest.