Why did the Arkansas Attorney General reject Mary Berry's recreational marijuana ballot title?

Plain-English summary

Mary Lou Berry submitted a popular name and ballot title for the proposed "Arkansas Cannabis Hemp and Recreational Marijuana Amendment of 2018," which would have legalized recreational cannabis cultivation, sale, and use; created licensing systems for both cannabis hemp and recreational marijuana; mandated expungement of certain marijuana-related convictions; and imposed a 5% recreational excise tax plus a 2% local sales tax.

Attorney General Leslie Rutledge rejected the submission. Unlike many ballot-title rejections that focus on length or partisan framing, this one identified five specific drafting ambiguities in the underlying amendment that made fair summarization impossible:

1. Field-tag acreage math. Section 3(b) defined a field tag as a label "where ten acres or less of cannabis hemp is being grown," but immediately added that field tags were "required to be posted for every ten acres of cannabis hemp grown." A reader could not tell whether tags were required only at 10 acres or below, or whether they were required at every 10-acre increment beyond that.

2. Hypothetical examples. The text gave example tag counts: 1 tag for under 1 acre but not more than 10; 2 tags for greater than 10 but not more than 20; 5 tags for greater than 40 but not more than 50; 10 tags for greater than 90 but not more than 100. Two problems: the first hypothetical conflated "less than 1 acre" with "not more than 10 acres" so the math was unclear in the 1-10 range, and the missing entries (20-40 acres, 50-90 acres) left it unclear whether the four examples were exhaustive.

3. Cultivation consent (Section 5(d)). The text required licensees cultivating on someone else's land to have "the consent of the persons(s) who own the property." If a corporation owned the land instead of a person, the text was silent on whether business consent was required.

4. Packaging scope (Section 5(f)(3)). The text required all recreational marijuana "being sold" to follow the design and labeling rules in Section 6. Whether those rules also applied to marijuana distributed without remuneration (Section 5(e) allowed distribution without payment) was unclear.

5. Expungement scope (Section 9). The amendment ordered expungement of "all criminal records . . . of such convictions that occurred prior to the effective date of this amendment." The AG read two plausible interpretations: only convictions whose sentence was being served at the effective date, or every prior marijuana conviction in state history. Voters had no way to know which the amendment meant.

The AG's bottom line was that ballot-title certification cannot fix textual ambiguity in the underlying amendment. She told Berry to redesign the proposed measure to resolve those ambiguities, then resubmit for re-review.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How is this rejection different from a length-and-complexity rejection? A: Most ballot-title rejections in this era focused on length or insufficient summarization (the Walker v. Priest 994-word ceiling, etc.). This one focused on substantive ambiguities in the proposed text. The AG could not write a fair summary because she did not know what the proposal meant. That is a structurally different problem: even a perfect drafter could not write a perfect title for a contradictory proposal.

Q: Why does ambiguity in the underlying text bar certification? A: Roberts v. Priest established that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." If the AG cannot tell what the proposal does (is it 1 tag per 10 acres, or 1 tag for the first 10 acres only?), she cannot describe what the proposal does to voters. The voters would then make decisions on ambiguous rules.

Q: Does this opinion bar legalization of recreational marijuana? A: No. The AG was clear: she takes no position on the merits. She rejected this particular drafting attempt. A cleaner draft of the same policy idea, with the five flagged ambiguities resolved, would receive fresh review.

Q: What did Berry's amendment actually propose?
A: Highlights from the text: dividing cannabis into "cannabis hemp" (≤0.3% THC) and "marijuana" (>0.3% THC); allowing any person 21+ or business to obtain a $30/year cannabis hemp license; allowing the same to obtain a $30/year marijuana license to cultivate, produce, and sell; capping cultivation at 36 marijuana plants per license-holder per year; requiring 1500-foot setbacks from schools, churches, and daycares; capping edibles at 10 mg THC per serving; and imposing a 5% recreational marijuana excise tax plus a 2% local sales tax on top of the existing state sales tax. The amendment also created a fallback rule: if the state failed to begin issuing licenses by April 19, 2019, the licensing requirement would not be enforced until licenses were available.

Q: Did Berry submit again?
A: Other AG opinions in the 2017 cluster show Berry submitted multiple cannabis-amendment drafts, all of which were rejected. The pattern is similar: drafting issues in the underlying text, not partisan or length issues with the title alone.

Q: How specific does an AG ambiguity finding have to be?
A: This opinion is a useful template. The AG identified five concrete passages, quoted them, and explained the ambiguity in each. Concrete identification matters, because the sponsor needs to know exactly what to fix in a redraft.

Background and statutory framework

Arkansas's medical-marijuana program had been in place since the AMMA passed in 2016, but recreational legalization was not on the table at the state level. Several initiative campaigns in 2017-2018 tried to put recreational on the ballot. None of them succeeded in clearing both AG certification and Supreme Court review. The reasons varied: drafting flaws (this opinion), partisan framing in the title, length, and external legal challenges to the petition itself.

The opinion is a useful artifact for anyone drafting a ballot initiative: read it as a checklist of the kinds of mistakes that get measures rejected before they ever circulate. The five issues here are mundane drafting bugs that any state legislature would catch through its bill-drafting office. Initiative sponsors who do not have access to that level of legislative drafting support are at a structural disadvantage.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2015)
• Ark. Code Ann. § 7-5-309
• Ark. Code Ann. § 5-64-505 (Uniform Controlled Substances Act)
• Roberts v. Priest, 341 Ark. 813 (2000)
• Bailey v. McCuen, 318 Ark. 277 (1994)
• Lange v. Martin, 2016 Ark. 337
• Wilson v. Martin, 2016 Ark. 334

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-030
March 20, 2017
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed initiated measure. At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title. The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition. Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to 323 CENTER STREET, SUITE 200 • LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Mary Lou Berry, Sponsor Opinion No. 2017-030 Page 2 law,"1 this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities.2 Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposal. The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act. 3 REQUEST You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment: Popular Name Arkansas Cannabis Hemp and Recreational Marijuana Amendment of 2018 Ballot Title An amendment to the Arkansas Constitution concernmg the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of recreational marijuana and cannabis hemp and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; 1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. Mccuen, 310 Ark. 654, 841 S.W.2d 139 (1992). 2 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). Mary Lou Berry, Sponsor Opinion No. 2017-030 Page 3 providing for the release from incarceration, probation, or parole of all persons whose current and only conviction(s) in which they are serving were of State laws pertaining to the cultivation, production, distribution, sale, possession of marijuana, marijuana paraphernalia, and the unlawful use of a communication device as it pertains to the sale of marijuana; and the expungement of records relating to such conviction(s); dividing cannabis in to [sic] cannabis hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of cannabis hemp and products produced therefrom; providing that a business and anyone 21 years of age or older may obtain a cannabis hemp license permitting the business or person to cultivate cannabis hemp; authorizing recreational use of marijuana; providing that a business and anyone 21 years of age or older may obtain a marijuana license permitting the business or person to cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a licensed person or business may have cultivating [sic] up to 36 marijuana plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% recreational marijuana excise tax and a local sales tax of 2%; permitting any business with a marijuana license that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any business with a marijuana license, or person 21 years of age or older; providing that the owner(s) of the business and any and all employees have a marijuana license, and that the recreational marijuana being sold in the form of edibles or drinkables (a)shall
[sic] not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, and ( c) labeling or packaging must provide product information; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the amendment (a) is not intended to require employers to permit activities relating to recreational marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana, ( c) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, ( d) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana; providing that if the State fails to begin issuing cannabis hemp licenses, field tags, marijuana licenses, and plant tags by April Mary Lou Berry, Sponsor Opinion No. 2017-030 Page4 19th, 2019 such licenses and tags shall not be required to cultivate, produce, and sale [sic] cannabis hemp and or recreational marijuana until such licenses and tags are issued by the State and 30 days is given for those engaged in such activity to obtain such licenses and tags for the activity in which they are engaged. RESPONSE The popular name is primarily a useful legislative device.4 It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. 5 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.6 The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. 7 According to the Court, a ballot title will not be legally sufficient unless it "adequately inform[ s ]" the voters of the contents of a proposed amendment or act so that they can make a "reasoned decision in the voting booth."8 A ballot title's failure to "honestly and accurately reflect what is contained in the proposed [act or] Amendment" may lead the Court to conclude that the "omission is significant."9 The Court has also disapproved the use of terms that are "technical and not readily understood by voters."10 Without a definition of such terms in the ballot title, the title may be deemed insufficient.11 4 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). 5 See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see note 16 infra. 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). 7 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted). 8 Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. 9 Id. at 9, 500 S.W.3d at 159. 10 Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167. 11 Id., 500 S.W.3d at 167. Mary Lou Berry, Sponsor Opinion No. 2017-030 Page 5 Additionally, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed."12 At the same time, however, a ballot title must be brief and concise; 13 otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. 14 The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.15 The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring."16 The ballot title must be honest and impartial, 17 and it must conve~ an intelligible idea of the scope and significance of a proposed change in the law. 8 Furthermore, the Court has confirmed that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.19 The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to 12 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 13 See Ark. Code Ann. § 7-9-107(b). 14 Bailey, 318 Ark. at 284, 884 S.W.2d at 944. 15 Id at 293, 844 S.W.2d at 946-47. 16 Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)). 17 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990). 18 Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted). 19 Cf Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). Mary Lou Berry, Sponsor Opinion No. 2017-030 Page 6 confusion in the ballot title itself. "20 Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without ( 1) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal. It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities in the text of the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposal.

1. Section 3(b) of your proposed amendment
   defines a "cannabis hemp field tag or field tag" as a
   state-issued label that must be "attache[ d] to any post
   or fencing where ten acres or less of cannabis hemp is
   being grown, and a field tag is required to be posted
   for every ten acres of cannabis hemp grown, with a
   limit of ten (10) tags allowed per licensed business or
   person per year."
   I cannot reconcile an apparent contradiction between the ten-acre limitation on cannabis-hemp field tags and the requirement that field tags "be posted for every ten acres of cannabis hemp grown." On the one hand, a reasonable voter might conclude that a field tag is only necessary where "ten acres or less of cannabis hemp" are cultivated. But the clause that immediately follows the quoted language in Section 3(b) states that field tags are "required ... every ten acres." Therefore, a reasonable voter might conclude that field tags are necessary where ten acres or more of cannabis hemp are cultivated. Until this ambiguity is clarified, I cannot summarize the proposed amendment in a ballot title so as to give voters a fair understanding of the field-tag requirements for cannabis hemp. zo Id Mary Lou Berry, Sponsor Opinion No. 2017-030 Page 7
2. Section 3(b) also provides the following set of
   examples:
3. less than ( <) 1 acre but not more than 10 acres
   will require 1 field tag,
4. greater than (>) 10 acres but not more than 20
   acres will require 2 field tags,
5. greater than (>) 40 acres but not more than 50
   acres will require 5 field tags, and
6. greater than (>) 90 acres but not more than 100
   acres will require 10 field tags.
   This part of the text raises at least two additional ambiguities. First, the initial hypothetical appears to contain an internal error that is not amenable to summary in a ballot title. This hypothetical states that one field tag is required for "less than ( <) 1 acre" of cannabis hemp; at the same time, the hypothetical states that one field tag is required for "not more than 10 acres" of cannabis hemp. A reasonable voter would be unsure of the number of field tags necessary for a licensee cultivating greater than one, but less than ten, acres of cannabis hemp. Second, it is unclear if the four hypotheticals are intended as an exhaustive list of field-tag limitations with respect to acreage. For this reason, a reasonable voter would question how, or if, the field-tag requirement applies to acreages not expressly mentioned. The ambiguities caused by the examples in Section 3(b) must be clarified before I can fairly summarize the field-tag requirements in a ballot title.
7. Section 5( d) states that any "person or business
   who is issued a marijuana license and plant tag(s) may
   cultivate marijuana . . . with the consent of the
   persons(s) who own the property."
   There is an ambiguity caused by, on the one hand, legalizing the cultivation of marijuana for licensed persons and businesses, while expressly stating that only "person(s)" need consent to cultivation of marijuana if the licensee does not own the property where the marijuana is grown. If a business, and not a person, owned the property in question, it is unclear if that business would need to consent to a third-party licensee cultivating marijuana on the property. This ambiguity must be resolved in order to accurately summarize the proposed amendment's requirements for marijuana cultivation. Mary Lou Berry, Sponsor Opinion No. 2017-030 Page 8
8. Section 5(f)(3) states that all recreational
   marijuana "being sold" must be "designed, packaged,
   and labeled pursuant to section 6 of this amendment."
   It is unclear if the design/packaging/labeling requirements for recreational marijuana apply strictly to marijuana "sold" by a licensee, or if these requirements apply as well to marijuana distributed without remuneration. The manner in which recreational marijuana is sold and distributed is crucial to a fair summary of the amendment in a ballot title. This ambiguity must be clarified before I can certify a title that accurately describes the amendment's requirements for design, packaging, and labeling.
9. Section 9 provides that "all criminal records in
   this state shall be expunged of such [marijuana-related]
   convictions that occurred prior to the effective date of
   this amendment."
   The extent of the expungement requirement in Section 9 is unclear. Specifically, a reasonable voter would not know if the proposed amendment intends to expunge all current marijuana-related convictions that "occurred prior to the effective date." Under this interpretation, a marijuana-related conviction would be only expunged if (1) the conviction occurred prior to the amendment's effective date, and (2) the sentence associated with the conviction was being served when the amendment took effect. But a reasonable voter might also conclude that each and every marijuana-related conviction must be expunged, regardless of when the conviction occurred and whether the associated sentence was being served when the amendment took effect. The effect of the proposed amendment on criminal convictions is a matter of great importance to Arkansas voters. This ambiguity must be clarified before I can accurately summarize the expungement requirement in a ballot title. CONCLUSION The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of your proposal. My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional Mary Lou Berry, Sponsor Opinion No. 2017-030 Page 9 role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate. Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title. 21 You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience. Sincerely, Enclosure 21 Ark. Code Ann. § 7-9-107(c). ARKANSAS CANNABIS HEMP AND RECREATIONAL MARIJUANA AMENDMENT OF 2018 (Popular Name) (Ballot Title) AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT, PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION, AND USE OF RECREATIONAL MARIJUANA AND CANNABIS HEMP AND PRODUCTS PRODUCED THEREFROM MAY NOT BE PROHIBITED UNDER STATE LAW, BUT SHALL BE REGULATED UNDER STATE LAW; RECOGNIZING THAT SUCH ACTIVITIES REMAIN UNLAWFUL UNDER FEDERAL LAW; PROVIDING FOR THE RELEASE FROM INCARCERATION, PROBATION, OR PAROLE OF ALL PERSONS WHOSE CURRENT AND ONLY CONVICTION(S) IN WHICH THEY ARE SERVING WERE OF STATE LAWS PERTAINING TO THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION OF MARIJUANA, MARIJUANA PARAPHERNALIA, AND THE UNLAWFUL USE OF A COMMUNICATION DEVICE AS IT PERTAINS TO THE SALE OF MARIJUANA; AND THE EXPUNGEMENT OF RECORDS RELATING TO SUCH CONVICTION(S); DIVIDING CANNABIS IN TO CANNABIS HEMP (CONTAINING 0.3% OR LESS THC) AND MARIJUANA (CONTAINING MORE THAN 0.3% THC); REGULATING THE CULTIVATION, PRODUCTION, DISTRIBUTION AND THE SALE OF CANNABIS HEMP AND PRODUCTS PRODUCED THEREFROM; PROVIDING THAT A BUSINESS AND ANYONE 21 YEARS OF AGE OR OLDER MAY OBTAIN A CANNABIS HEMP LICENSE PERMITTING THE BUSINESS OR PERSON TO CULTIVATE CANNABIS HEMP; AUTHORIZING RECREATIONAL USE OF MARIJUANA; PROVIDING THAT A BUSINESS AND ANYONE 21 YEARS OF AGE OR OLDER MAY OBTAIN A MARIJUANA LICENSE PERMITTING THE BUSINESS OR PERSON TO CULTIVATE, PRODUCE, AND SELL MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR RECREATIONAL PURPOSES; PROVIDING THAT A LICENSED PERSON OR BUSINESS MAY HAVE CULTIVATING UP TO 36 MARIJUANA PLANTS IN A LOCATION NOT SUBJECT TO PUBLIC VIEW WITHOUT OPTICAL AID; PROVIDING THAT SALES OF RECREATIONAL MARIJUANA WILL BE SUBJECT TO EXISTING SALES TAXES AND AN ADDITIONAL 5% RECREATIONAL MARIJUANA EXCISE TAX AND A LOCAL SALES TAX OF 2%; PERMITTING ANY BUSINESS WITH A MARIJUANA LICENSE THAT IS 1500 FEET AWAY OR MORE FROM A PUBLIC OR PRIVATE SCHOOL, CHURCH, OR DAYCARE MAY SELL RECREATIONAL MARIJUANA TO ANY BUSINESS WITH A MARIJUANA LICENSE, OR PERSON 21 YEARS OF AGE OR OLDER; PROVIDING THAT THE OWNER(S) OF THE BUSINESS AND ANY AND ALL EMPLOYEES HAVE A MARIJUANA LICENSE, AND THAT THE RECREATIONAL MARIJUANA BEING SOLD IN THE FORM OF EDIBLES OR DRINKABLES (A)SHALL NOT BE DESIGNED TO APPEAL TO CHILDREN; (B) SHALL NOT EXCEED 10 MILLIGRAMS OF THC PER SERVING, AND (C) LABELING OR PACKAGING MUST PROVIDE PRODUCT INFORMATION; PROVIDING THAT THE MANUFACTURE, POSSESSION, PURCHASE, SALE, AND DISTRIBUTION OF MARIJUANA PARAPHERNALIA IS LAWFUL UNDER STATE LAW; AND PROVIDING THAT THE AMENDMENT (A) IS NOT INTENDED TO REQUIRE EMPLOYERS TO PERMIT ACTIVITIES RELATING TO RECREATIONAL MARIJUANA IN THE WORKPLACE, (B) IS NOT INTENDED TO PERMIT DRIVING UNDER THE INFLUENCE OF MARIJUANA, (C) IS NOT INTENDED TO PERMIT THE TRANSFER OF RECREATIONAL MARIJUANA TO ANYONE UNDER 21 YEARS OF AGE, (D) NOR PERMIT ANYONE UNDER 21 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL, POSSESS, OR USE RECREATIONAL MARIJUANA; PROVIDING THAT IF THE STATE FAl.LS TO BEGIN ISSUING CANNABIS HEMP LICENSES, FIELD TAGS, MARIJUANA LICENSES, AND PLANT TAGS BY APRIL 19TH, 2019 SUCH LICENSES AND TAGS SHALL NOT BE REQUIRED TO CULTIVATE, PRODUCE, AND SALE CANNABIS HEMP AND OR RECREATIONAL MARIJUANA UNTIL SUCH LICENSES AND TAGS ARE ISSUED BY THE STATE AND 30 DAYS IS GIVEN FOR THOSE ENGAGED IN SUCH ACTIVITY TO OBTAIN SUCH LICENSES AND TAGS FOR THE ACTIVITY IN WHICH THEY ARE ENGAGED. Section 1. Short Title. This is an amendment to the Arkansas Constitution that shall be called "The Arkansas Cannabis Hemp and Recreational Marijuana Amendment of 2018. Section 2. Effective Date. Effective on and after November 07, 2018 the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus Cannabis) as it pertains to cannabis hemp and recreational marijuana and the products produced therefrom shall be regulated pursuant to the provision of this amendment and made lawful in every geographic area of every county of this state under Arkansas law. Section 3. Definitions. The following terms are defined for the purposes of this amendment: (a) "Cannabis hemp" means any part of the cannabis sativa L plant species, living or not, and when harvested in its mature plant stage contains three tenths of one percent (0.3%) or less, by dry weight, Delta-9-tetrahydrocannabinol (A9THC) and is not cultivated to produce an intoxicant. (b) "Cannabis hemp field tag or field tag" means a label issued by the state that a cultivator attaches to any post or fencing where ten acres or less of cannabis hemp is being grown, and a field tag is required to be posted for every ten acres of cannabis hemp grown, with a limit of ten ( 10) field tags allowed per licensed business or person per year; for example:
10. less than ( <) 1 acre but not more than 1 O acres will require 1 field tag
11. greater than(>) 10 acres but not more than 20 acres will require 2 field tags
12. greater than(>) 40 acres but not more than 50 acres will require 5 field tags, and
13. greater than (>) 90 acres but not more than 100 acres will require 10 field tags.
    Each field tag shall display the cannabis hemp license account number and an expiration date that corresponds with the cultivator's cannabis hemp license. Each field tag may be bar-coded or embedded with radio frequency identification (RFID) smart chip. (c) "Cannabis hemp license" means a registration card issued by the state to a business, or person who is a resident of the state, and is twenty-one (21) years of age or older to lawfully cultivate, produce, and sell cannabis hemp and products produced from cannabis hemp that is cultivated in this state. Each license shall display a license account number, an expiration date, and the photo, name or business name, date of birth, and current address of the holder or business. (d) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (A9THC) content of the operator's blood exceeds thirteen micrograms per liter (13µg/l). (e) "Marijuana" means any part of the cannabis plant (genus Cannabis), living or not, and when harvested in its mature plant stage contains greater than three tenths of one percent (0.3%), by dry weight, Delta-9-tetrahydrocannabinol (A9THC) and is cultivated to produce an intoxicant. (f) "Marijuana license" means a registration card issued by the state to a business or person who is a resident of the state and is twenty-one (21) years of age or older to lawfully cultivate, produce, and sell marijuana and products produced from marijuana for recreational purposes. Each license shall display a license account number, an expiration date, and the photo, name or business name, date of birth, and current address of the holder or business. (g) "Marijuana paraphernalia" means any equipment, utensils, products, and materials which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, containing, or concealing recreational marijuana, or for ingesting, inhaling or otherwise introducing recreational marijuana into the human body. (h) "Marijuana plant tag or plant tag" means a label issued by the state that the cultivator attaches to the base or branch of a growing marijuana plant. Such a label may be bar-coded or be embedded with a radio frequency identification (RFID) smart chip. Each tag shall display the marijuana license account number and an expiration date that corresponds with the cultivator's marijuana license. (i) "Products produced from cannabis hemp" means items and substances manufactured from cannabis hemp, containing three tenths of one percent (0.3%) or less delta-9-tetrahydrocannabinol (A9THC) and is not used as an intoxicant. 0) "Products produced from marijuana" means items and substances manufactured from marijuana, containing more than three tenths of one percent delta-9-tetrahydrocannabinol (A9THC) and is used as an intoxicant that is consumed into the human body in the form of food, drink, vapor, or smoke. (k) "Recreational marijuana" means marijuana and products produced from marijuana that is used as an intoxicant. (I) "Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational marijuana. (m) "Remuneration" means an act in which money is being paid to purchase recreational marijuana. Section 4. The regulation of cannabis hemp. The cultivation, production, distribution, sale, possession, and use of cannabis hemp and products produced from cannabis hemp shall be lawful in every geographic area of every county of this state under Arkansas law, and shall be regulated by the state, and such regulations shall include the following provisions, but do not preclude the imposition of additional rules, regulations, and penalties that the state may adopt and impose. (a) The cost of a cannabis hemp license that shall be issued and required by the state shall not exceed thirty dollars ($30.00) a year, and there shall be no limit to the number of licenses issued in this state, and any business or person who is a resident of this state, and is twenty-one (21) years of age or older shall qualify to obtain such a license, providing that he or she has not had such a license permanently revoked by the state for violating the provisions pursuant to this amendment. (b) The cost of a cannabis hemp field tag that shall be issued and required by the state to regulate the cultivation of cannabis hemp shall not exceed ten dollars ($10.00) per field tag per year, and any business or person with a cannabis hemp license as defined in Section 3(c) may obtain such field tag(s), and there shall be a limit of ten ( 10) field tags allowed per licensed business or person per year. (c) Any person or business issued an cannabis hemp license and field tag(s) may cultivate cannabis hemp on property he or she owns, or with the consent of the person(s) who owns the property. (d) Any person or business who violates the provisions pursuant to this section the following penalties may be imposed: (1.) First offense: Upon conviction is guilty of a Class C misdemeanor, a penalty no greater than five-hundred dollars ($500) shall be imposed, up to thirty (30) days in jail, and a suspension to obtain a cannabis hemp license for one year. (2.) Second offense: Upon conviction is guilty of a Class C misdemeanor, a penalty no greater than five-hundred dollars ($500) shall be imposed, up to thirty (30) days in jail, and a suspension to obtain a cannabis hemp license for five years. (3.) Third offense: upon conviction is guilty of a Class 8 misdemeanor, a penalty no greater than one-thousand dollars ($1,000) shall be imposed, and up to ninety (90) days in jail, and a permanent revocation of a cannabis hemp license. Section 5. The regulation of recreational marijuana. The cultivation, production, distribution, sale, possession, and use ofmarijuana and products produced from marijuana for recreational purposes shall be lawful in every geographic area of every county of this state under Arkansas law, and shall be regulated by the state, and such regulations shall include the following provisions, but do not preclude the imposition of additional rules, regulations, and penalties that the state may adopt and impose: (a) The cost of a marijuana license that shall be issued and required by the state shall not exceed thirty dollars ($30.00) per license per year, and there shall be no limit to the number of licenses issued in this state, and any business or person who is a resident of this state and is twenty-one (21) years of age or older shall qualify to obtain such a license, providing that he or she has not had such a license permanently revoked by the state for violating the provision pursuant to this amendment. (b) The cost of a marijuana plant tag that shall be issued and required by the state to regulate the cultivation of recreational marijuana produced in this state, shall not exceed six dollars ($6.00) per plant tag, and any person or business who has a marijuana license as defined in Section 3(f) shall qualify to obtain such tags, and there shall be a limit of thirty-six (36) plant tags allowed per year per licensed person or business. Marijuana plant tags may be purchased in any quantity, but not to exceed thirty-six (36) tags per licensed person or business per year. (c) The quantity of marijuana plants cultivated and displaying a marijuana plant tag shall be limited to thirty-six (36) growing plants per person or business who has a marijuana license, but the quantity of the products produced from marijuana shall not be limited. (d) Any person or business who is issued a marijuana license and plant tag(s) may cultivate marijuana in a location where the plant(s) is (are) not subject to public view without the use of binoculars, aircraft, or other optical aids on property he or she owns, or with the consent of the person(s) who owns the property. (e) Any person who is twenty-one (21) years of age or older may purchase, possess, and use recreational marijuana, and may distribute recreational marijuana without remuneration to another person who is twenty-one (21) years of age or older. (f) Any business with a marijuana license whose owner(s) and employee(s) all have a marijuana license as defined in section 3(f) may sell recreational marijuana to another business with a marijuana license, or any person who is twenty-one years of age or older in that place of business providing: (1) All buyers of recreational marijuana must first show proof of age with a valid driver's license or valid identification card prior to the purchase. (2) The business where recreational marijuana is being sold is not located within one thousand five hundred feet (1,500') of a public or private school, church, or daycare center, and; (3) All recreational marijuana being sold is designed, packaged, and labeled pursuant to section 6 of this amendment. (g) Any business or person who violates the provision of this section the following penalties may be imposed: (1.) First offense: upon conviction is guilty of a Class C misdemeanor, a penalty not greater than five-hundred dollars ($500) shall be imposed, up to thirty 30 days in jail, and a suspension to obtain a marijuana license for one year. (2.) Second offense: upon conviction is guilty of a Class B misdemeanor, a penalty of one-thousand dollars ($1,000) shall be imposed, up to ninety days (90) days in jail, and a suspension to obtain a marijuana license for five years. (3.) Third offense: upon conviction is guilty of a Class B misdemeanor, a penalty not greater than one thousand dollars ($1,000) shall be imposed, up to ninety (90) days in jail, and a permanent revocation of a marijuana license. Section 6. Recreational marijuana product design, serving size, labeling and packaging. (a) All edible and drinkable products produced from marijuana that are sold for recreational purposes shall; (1) Shall not be designed to be appealing to children or easily confused with commercially sold candy or foods that do not contain marijuana. (2) Shall be produced and sold with a standardized dosage not to exceed ten (10) milligrams of delta-9-tetrahydrocannabinol (A9THC) per serving. (3) Shall be delineated or scored into standardized serving sizes if the product contains more than one serving and is in solid form. (4) Shall be homogenized to ensure uniform disbursement of delta-9-tetrahydrocannabinol (A9THC) throughout the product. (5) Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the potential effects of the product, and directions as to how to consume the product. (b) All smokable and vaporizable products produced from marijuana that are sold for recreational purposes shall; (1) Shall provide information on the packaging to enable the informed consumption of such product, including the delta-9-tetrahydrocannabinol (A9THC) content, potential effects of the product, and directions as to how to consume the product. Section 7. Marijuana paraphernalia authorized. Notwithstanding any other provision of law, the following acts regarding marijuana paraphernalia shall not be an offense under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to The Uniform Controlled Substances Act §5-64-505: (a) Any business or person twenty-one (21) years of age or older may manufacture, possess, and purchase marijuana paraphernalia, or may sell marijuana paraphernalia to another business or person who is twenty-one years of age or older, providing that the marijuana paraphernalia being sold does not contain recreational marijuana, unless the seller of such paraphernalia has a marijuana license. Section 8. Employers, driving, and minors. (a) Nothing in this amendment is intended to require an employer to permit or accommodate the cultivation, production, distribution, sale, possession, or use of recreational marijuana in the workplace or to affect the ability of employers to have policies restricting the use of recreational marijuana by employees. (b) Nothing in this amendment is intended to permit driving under the influence of marijuana. (c) Nothing in this amendment is intended to permit the transfer of recreational marijuana, with or without remuneration, to a person under the age of twenty-one (21 ). (d) Nothing in this amendment is intended to permit a person under the age of twenty-one (21) to cultivate, produce, sell, possess, or use recreational marijuana. (e) Nothing in this amendment is intended to permit the unauthorized cultivation, production, distribution, or sale, of any substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled Substances Act. Section 9. Non-violent marijuana offenders and criminal record expungement. All persons currently serving incarceration, probation, or parole in this state, whose current and only conviction(s) to which they are now serving were due to violating state laws as they pertain to the cultivation, production, distribution, sale, and possession of marijuana, possession of marijuana paraphernalia, and or the unlawful use of a communication device pertaining to the sale of marijuana, and whose violation(s) occurred prior to the effective date of this amendment shall be released, and all criminal records in this state shall be expunged of such convictions that occurred prior to the effective date of this amendment. Section 10. Taxation and distribution of proceeds from the sale of recreational marijuana and cannabis hemp. (a) The following taxes shall be imposed upon the purchase of recreational marijuana sold in Arkansas: (1) The Arkansas State Sales and Use Tax, (2) a five percent (5%) recreational marijuana excise tax, and (3) a two percent (2%) local sales tax. (b) The following taxes shall be imposed upon the purchase of cannabis hemp cultivated and sold in Arkansas: (1) The Arkansas State Sales and Use Tax · (c) The sales tax that are currently imposed upon the sale of products produced from cannabis hemp shall not be affected by this amendment. (d) The distribution of tax revenues received by the Department of Finance and Administration from the sale of recreational marijuana and cannabis hemp under this amendment may be determined by the general assembly. Section 11. Marijuana licenses, plant tags, cannabis hemp licenses, and field tags The state shall begin issuing marijuana licenses, plant tags, cannabis hemp licenses, and field tags by April 19th, 2019. If the state fails to begin issuing such licenses and tags by April 19th, 2019 the provisions of this amendment requiring such licenses and tags shall not be enforced, and the state shall not prohibit or penalize any business or person twenty-one years of age or older, engaged in the cultivation, production, and sale of cannabis hemp and or recreational marijuana until such licenses and tags are issued by the state, and thirty days is given in order for those engaged in such activity to obtain the proper licenses and tags for the activity in which they are engaged. Section 12. Conflicting Laws. The provisions of this Amendment are hereby declared to be severable and self-executing, and except where otherwise indicated in this Amendment, shall supersede all conflicting state and local laws, charters, regulations, and any and all other provisions in conflict with this Amendment. If any provision of this Amendment, or the application of such provision to any person or circumstance is declared invalid by any court for any reason, such declaration shall not affect the validity of the remaining portions of this Amendment.