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Would a pot-growing coaching business be against Alaska law?

  • Author: Scott Woodham
  • Updated: September 28, 2016
  • Published April 1, 2015

When the initiative to legalize, tax and regulate marijuana in Alaska took effect Feb. 24, personal home gardens of six plants total, up to three flowering at a time, became expressly permitted for any Alaskan 21 years or older. But what if someone has no idea where to begin?

There are books and magazines. Cultivation message boards and web forums seem to multiply by the day, but researching all of that and turning it into action takes time. Not to mention that talk of light frequencies, growing media, "nutes," and techniques like ScrOG, FIM, and LST might overwhelm beginners.

Brett LeMay wonders if that might present an opportunity for someone with an entrepreneurial spirit and Alaskan desire to "take tomorrow and dream." He asks Highly Informed: "Do you foresee any problems with setting up a personal-growing coach business? Not everyone has a green thumb. Of course, I could not provide plants or seeds, just set up and maintain their personal use garden."

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

Before we get into the answer, it's important to note right up front that anyone thinking of starting a business should seek professional legal advice to ensure that everything goes smoothly. That's just good sense whether cannabis is involved or not. Starting a business involves official paperwork, state licensing and so on, and an attorney can be a big help to start off on the right foot.

It's also important to note that the Alaska Legislature is currently considering a variety of legislation pertaining to cannabis, and there are a little more than two weeks left in the session. Anything said here could change depending on the outcome of any of that legislation. The answer here doesn't seem likely to change much, but because there's so much activity right now, the legal landscape is essentially unsettled.

Pot me in, coach. Center field?

Setting aside the question for a moment about foreseeable problems, let's look at a fundamental question first. Would a home-grow cannabis coaching business be allowed under the state laws as they stand currently?

It appears that yes, if no other statutes are violated in the process of advising someone, a business to coach compliant home growers is allowed under the current statutes. Statutes also allow individual Alaskans over 21 to give each other up to six immature cannabis plants, but sales are still off limits at this time. There is nothing in current statutes that expressly prohibits or addresses a coaching business. That means two things right off the bat: One, that kind of business is just not mentioned. Someone in an official capacity might decide statutes need to mention it. And two, if such coaching is done with gardens that comply with state law, it's currently not prohibited.

Complying with the law right now for home gardens means complying with AS 17.38.020, the laws created by Ballot Measure 2 that concern personal use of cannabis, including cultivating it at home for recreational purposes.

That statute currently limits home gardens to six plants, with no more than three flowering at a time, and restricts them to Alaskans older than 21. It also specifically permits "assisting" people of legal age with certain acts, including growing at home:

Notwithstanding any other provision of law, except as otherwise provided in this chapter, the following acts, by persons 21 years of age or older, are lawful and shall not be a criminal or civil offense under Alaska law or the law of any political subdivision of Alaska or be a basis for seizure or forfeiture of assets under Alaska law:

(a) Possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana; (b) Possessing, growing, processing, or transporting no more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown; (c) Transferring one ounce or less of marijuana and up to six immature marijuana plants to a person who is 21 years of age or older without remuneration; (d) Consumption of marijuana, except that nothing in this chapter shall permit the consumption of marijuana in public; and (e) Assisting another person who is 21 years of age or older in any of the acts described in paragraphs (a) through (d) of this section.

Uncertainty and risk

Here's where things get tricky, and where unforeseen problems might arise for a business centered on grow-coaching. In any industry, changes in law or regulation can significantly change the landscape. And legal uncertainty is the biggest foreseeable complication for the business idea you propose. Such uncertainty adds risk to starting up, but that's for an aspiring grow coach and his or her lawyer to discuss.

Some changes to that statute quoted above are being considered in the Alaska Legislature right now, largely to clarify terms and respond to stakeholder concerns. They involve things like per-household plant limits, defining "public" use and others. The two main legislative bills dealing with cannabis right now are SB 30, freshly passed by the Senate and moved on to the House, and HB 75, which is still making its way through the House. Both bills should be considered in flux.

Cynthia Franklin, director of the Alcoholic Beverage Control Board, the agency currently charged with creating cannabis regulations to implement, said that unless something changes with the legislation, the business described doesn't currently seem off-limits to her as long as it doesn't run afoul of other parts of the law. Examples of types of advice that would cross the line are advising a commercial grow (none of which are permitted yet) or selling clones or plants, or helping someone with a grow that's larger than allowed in statute.

Franklin wrote in an email, "When I read AS 17.38.020 in a vacuum, without HB 75, I would not interpret the conduct you describe as violating any prohibition. In other words, unless the legislature amends 17.38.020 to define or restrict the term 'assist' to the contrary, I believe the initiative language would allow this type of advice."

The phrase "in a vacuum" is a significant qualification. Law and policy don't happen in a vacuum, and regulators can only deal with what they have in front of them. Franklin said that the only thing that could possibly affect her interpretation is HB 75. That bill is somewhat narrower in scope than SB30, and its most recent version proposes including language that defines "assist" and adds "aiding or supporting," plus a list of situations where assisting is not illegal. It doesn't appear to restrict a business like the one Brett is asking about:

assisting, aiding, or supporting another person who is 21 years of age or older in any of the acts described in (1) - (4) of this section; assisting under this paragraph does not include (A) using, displaying, purchasing, or transporting marijuana in excess of the amount allowed in this section; (B) possessing, growing, processing, or transporting marijuana plants in excess of the amount allowed in this section; (C) growing marijuana plants for another person in a place other than that other person's dwelling."

The version of that proposed language in SB 30 is nearly identical, but it doesn't add "aiding and supporting" or include that last item there, "C." Reconciling the two bills is an ongoing matter, which makes it impossible to say for certain what will result in the end. House committee staff are not offering any guesses about where things will end up, but so far as I've been told, no one has heard of plans to restrict "assisting" in a way that would bar a coaching business for legally compliant home gardens. If that changes, I'll update this column.

HB 75 is sponsored by the House Community and Regional Affairs Committee, chaired by Rep. Peggy Tilton, R-District 12. She wrote in an email that her own convictions against the initiative to legalize, tax and regulate don't matter when it comes to the work in creating HB75, "I voted against it, as did a majority of my district's voters. However, the voters passed it and it is my obligation as a state lawmaker to respect the will of the voters even if I disagree with it."

"As the House Community and Regional Affairs Committee has worked through the process with HB 75, we kept two questions in the forefront when adopting the various provisions: 'Is it consistent with the initiative?' and 'Does it closely follow how we regulate alcohol?' " she said. "Rather than telling municipalities what they were going to do, we asked them what they needed us to do."

Rep. Tilton said, "Our municipalities made it very clear that they needed us to act in order for them to write their ordinances correctly, in the interests of public health, public safety and protection of commercial trade. HB 75 gives them the tools to do that while remaining consistent with the intent of the initiative."

Since there's no proposed restriction on potential grow-coaching in any current version of legislation, either from the House or Senate, apparently grow-coaching was an issue that no stakeholders, whether municipalities or not, brought up as a concern. That leads me to conclude that prohibitions against such a businesses are unlikely. But anything could still happen with a couple of weeks left in the session.

Other potential issues?

One other potential issue for Bret to consider is whether any special licensing or permits aside from an Alaska business license may be required. Currently there are no such requirements in statute for a grow coach, and Heath Hilyard, Tilton's chief of staff and committee aide for House Community and Regional Affairs, said that his office has no plans to include such a licensing provision in HB 75.

"That really wouldn't be the right vehicle for something like that," he said, adding that they intend to defer on detailed rulemaking to regulators with the ABC Board or, if created, a Marijuana Control Board.

Skies look clear right now on that front. According to ABC director Franklin, "We do not anticipate growing 'coaches' needing licenses or issuing any license like that."

Depending on the type of advice or service, however, other licenses may apply.

The state of Alaska requires licenses for a host of professions already, in addition to an Alaska business license. Handymen, contractors, electricians, engineers and others in the building trades -- to mention a category that seems like it could apply here -- are "regulated professions," and the state requires additional licensing for them.

If someone's idea of grow-coaching involves building partitions or rewiring part of a house, for example, it seems that extra licensing would apply. If it's just talking about flowers and troubleshooting common problems, it seems not. Consultation with an attorney and constant vigilance about laws and regulations would seem essential to determine what potential problems, if any, apply to a particular cannabis grow-coaching business model. But as things stand now, recognizing that laws and rules are taking shape, it seems there are few legal problems to foresee when it comes to the coaching business Brett describes. But because the laws and rules are still essentially unsettled, that means there could be additional business risks worth considering.

Have a question about marijuana news or culture in Alaska? Send it to cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.

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