The Alaska Marijuana Control Board accepted draft regulatory language on Sept. 24 that would ban cannabis social clubs, unable to establish any regulations around a license type that was not specified in the ballot initiative that legalized cannabis. The existence of cannabis social clubs will now depend on the Alaska Legisature to establish the license type, informed by a planned policy statement from the board.

Marijuana clubs, which do not sell cannabis but allow cannabis users to consume and share on premises, have been a legal gray area in Alaska. Use and possession of cannabis is legal, but business licenses for sale and cultivation will not be issued until May 2016. Because cannabis clubs do not sell, they do not fall under regulatory authority, which either prevents the board from allowing them or from prohibiting them, depending on who you ask.

In July, Anchorage cannabis social club Pot Luck Events received a cease and desist letter from board director Cynthia Franklin, along with Alaska Cannabis Club, Northern Heights, and Green Rush Events. Franklin’s cease and desist letter carried less than bulletproof legal weight because of the nebulous legal status of marijuana clubs, and Pot Luck Events has continued operation.

Pot Luck manager Theresa Collins said the club will continue to operate until Nov. 24, when the Legislature must adopt, reject or alter the recommended regulations the board has written.

The state’s legal department argued that the board has no authority at all to regulate cannabis clubs, as there is no license for them in the first place.

The Alaska Department of Law had advised the board that it does not have the authority to create new licenses or even to craft regulations around nonexistent license types. The ballot initiative only specified four license types: cultivation, manufacturing, retail and testing. Assistant attorney General Harriet Milks said the Legislature must create the license type in statute before the board can regulate it.

“The Department of Law has already decided the board doesn’t have the authority,” said Milks. “It’s not your problem to fix. The Legislature has to take the initial steps.”

Collins said she doesn’t buy the argument.

“If they don’t have the authority to approve them, then how do they have the authority to prohibit them?” Collins said.

The board has already made it apparent that it needs legislative action before ruling one way or another on marijuana clubs.

“We’re pretty well on record saying we need some legislative guidance on this,” said board member Mark Springer. “We need to not dance around it, but right now, say that they’re not a license, knowing there may be some action by the Legislature to authorize the board to authorize marijuana clubs.”

Board member Brandon Emmett, vice president of the Alaska Marijuana Industry Association, disagreed with the Department of Law’s ruling, arguing the board was able to create a brokerage license despite not appearing in the ballot.

Some of the public agreed with Emmett.

“I don’t see how you can prohibit and not create,” said Lee Haywood, a local cannabis business consultant for Pot Luck Events.

“Broker licenses are a subset of a cultivator license,” responded Milks to Emmett. “Marijuana club is a completely different animal. It is a circumstance of using, selling, distributing marijuana that is not authorized by the Legislature at this time.”

Emmett voiced fears that the Legislature would not have the time or attention to even take up the matter during session.

“If we look at the last session, very little got put out on the marijuana issue besides the bill that created this board,” said Emmett, “and this might be something that slips through the cracks. I don’t see it a far stretch to create a marijuana club provision.”

Emmett also voiced concerns that a ban would be too strong, and misinform the Legislature that the board doesn’t support their existence.

“If we accept this, it will send a message to the Legislature that we’ve already made our minds about how we feel,” said Emmett. “If you look at the public comment, this has been arguably the most popular and controversial section in some time.”

Board chairman Bruce Schulte highlighted the fact that several municipalities have drafted letters of support for marijuana clubs, and lamented the fact that the board has no authority to remedy a “chicken and the egg situation.”

Schulte said the board will attempt to craft policy statements expressing the board’s support of marijuana clubs’ existence, in an attempt to inform legislators of the public and board support for such businesses.

“The best way I think advocates and supporters to make it happen is to give legislators every reason to embrace them,” said Schulte. “Ballot 2 passed, but only by a small margin. Legislators are paying close attention to that 47 percent who didn’t support it.”

DJ Summers is a reporter for the Alaska Journal of Commerce.