Why did the Arkansas AG reject Larry Morris's second 2017 recreational-marijuana ballot title?

Plain-English summary

Larry B. Morris of West Fork resubmitted his recreational-marijuana constitutional amendment to Attorney General Leslie Rutledge after the first version was rejected (Op. 2017-031). The April 10 version addressed some of the earlier issues but introduced or retained four ambiguities that the AG flagged as serious enough to prevent certification.

1. Section 3(g) "business," "person," and "driver" usage. The proposal used the three terms inconsistently when describing transport-pass requirements. It was unclear whose name had to appear on the pass.
2. Section 4(c)(3) packaging exemption. The provision required products produced from recreational marijuana to be designed and packaged "pursuant to section 5," but the section's interaction with non-sale distribution was unclear. The same kind of "what does this exemption actually cover?" problem the AG had flagged in parallel Berry proposals.
3. Section 8 expungement. Same recurring ambiguity. Two reasonable readings of which convictions get expunged and what "other conviction not pertaining to" means. Because expungement is a high-stakes voter consideration, the ambiguity was disqualifying.
4. Section 10 sovereign immunity. The criminal-penalty provisions raised the question of whether state actors (officials, employees) could be held personally liable, and how that interacted with the state's sovereign-immunity protections. The AG flagged this as "noteworthy" given the state's structural protections.

Because the underlying proposal text was internally ambiguous, the AG could not draft a substitute under § 7-9-107(b). She rejected the petition under § 7-9-107(c) and invited Mr. Morris to redesign and resubmit. The next iteration appears as Op. 2017-047.

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 does this proposal relate to the earlier Morris submission? A: Op. 2017-031 (March 21) was Mr. Morris's first attempt and was rejected for seven ambiguities. This April 10 version addressed several of those earlier issues, but the AG identified four that were still serious enough to require redesign. Op. 2017-047 (May 3) was Mr. Morris's third attempt; the AG found a different set of ambiguities there.

Q: What is the sovereign-immunity problem in Section 10?
A: Section 10 enumerated criminal penalties for violations of the proposed amendment. The AG read those penalties as raising the question of whether state actors could be held personally liable. Arkansas's constitution and statutes contain substantial sovereign-immunity protections; the proposed amendment did not address how its penalties would interact with those protections. That left voters guessing about meaningful aspects of enforcement.

Q: Why does the AG keep flagging the expungement clause?
A: Because every iteration of these proposals from 2017 contained the same Section 8 wording, with the same two competing readings. The AG's office treats expungement as a particularly important matter for voters (it changes the criminal record of identifiable individuals), so ambiguity here is not the kind of issue the AG will paper over with a substitute ballot title.

Q: Did Mr. Morris ever get a proposal certified?
A: Not in this 2017 sequence. The proposals went through three rounds (Op. 2017-031, 2017-041, 2017-047) without certification. The 2018 Arkansas ballot did not include a recreational-marijuana measure from this sequence.

Q: What does it mean that "additional ambiguities may come to light"? A: Standard caveat. The AG identifies the most serious ambiguities but does not commit to having found them all. A revised proposal may surface new issues. Sponsors who treat the rejection list as exhaustive risk repeated rejections.

Background and statutory framework

The Arkansas initiative-and-referendum process requires AG certification of the popular name and ballot title before petitions can be circulated. Section 7-9-107 sets out the AG's authority. The Arkansas Supreme Court's case law on ballot-title sufficiency requires honest, intelligible, impartial summaries that convey "an intelligible idea of the scope and significance of a proposed change in the law."

Recreational-marijuana proposals during the 2017 to 2018 cycle accumulated a track record of rejections. The recurring ambiguities (expungement wording, packaging-exemption interactions, sovereign-immunity silence, definitional inconsistency, silence on Amendment 98) suggest that the underlying drafting tradition for these proposals was not addressing the AG's concerns. The proposals never made it to the ballot.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (popular name and ballot title certification)
• Ark. Code Ann. § 7-5-309 (voting-booth time limit)

Cases (all Arkansas Supreme Court):

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

Source

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

Original opinion text

Opinion No. 2017-041
April 10, 2017
Larry B. Morris, Sponsor
50 Crest Street
West Fork, AR 72774
Dear Mr. Morris:
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 Larry B. Morris, Sponsor Opinion No. 2017-041 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 honestlr, intelligibly, and fairly set forth the purpose of the proposed amendment or act. 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 The Arkansas Decriminalization of Recreational Marijuana Amendment Ballot Title An amendment to the Arkansas Constitution concerning the marijuana plant, providing that the cultivation, production, distribution, sale, possession, and use of marijuana and products produced therefrom for recreational purposes by adults 21 years of age or older may not be prohibited 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, 1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841S.W.2d139 (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). Larry B. Morris, Sponsor Opinion No. 2017-041 Page 3 and possession of marijuana, possession of marijuana paraphernalia, and or the unlawful use of communication devices to sell marijuana, and the expungement of each and every criminal records [sic] in the State relating to such conviction(s); defining recreational marijuana containing more than 0.3% THC; permitting the cultivation, production, distribution, and sale of recreational marijuana by any business or person 21 years of age or older; providing that a business and anyone 21 years of age or older may cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a person or business may cultivate up to 25 mature and 25 non mature marijuana plants in a location not subject to public view without optical aid; providing that the location of 25 or more cultivating marijuana plants is put on record with the county sheriffs office; permitting the transport of recreational marijuana upon any public highway or street provided if the weight of transport exceeds 4lbs [sic] or more a transport pass is obtained from the county sheriffs office; 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 that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any person 21 years of age or older; providing that the recreational marijuana that is sold in the form of edibles or drinkables (a)is [sic] not 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) does not permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana and; ( e) does not prohibit the State from appointing a regulatory body to regulate the cultivation, production, distribution and sale of recreational marijuana pursuant to the amendment and (f) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license entity pursuant to the Arkansas Medical Marijuana Amendment of 2016. Larry B. Morris, Sponsor Opinion No. 2017-041 Page 4 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 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 4 Pajfordv. 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. 12 Baileyv. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). Larry B. Morris, Sponsor Opinion No. 2017-041 Page 5 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 convefi 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 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. 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). 20 Id. Larry B. Morris, Sponsor Opinion No. 2017-041 Page 6 It is my op1mon, 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(g) of your proposed amendment
   concerns the transport of four or more pounds of
   marijuana and marijuana products. This section
   requires a "transport pass" in order to authorize a
   "business or person who is 21 years of age or older to
   transport recreational marijuana and or products
   produced therefrom" on any public road in Arkansas.
   The transport pass "shall provide a name of driver,
   Arkansas driver's license Identification number, and a
   date of expiration."
   There are ambiguities in Section 3(g) caused by the simultaneous use of "business," "person," and "driver." It is unclear if the "name of driver" appearing on the transport pass must match the name of the "person" who initially requested the pass (either in his own name or on behalf of a business). Thus, it is unclear if a "person" could be issued a transport pass for another individual who would be the eventual "driver," or if a transport pass may only display the name of the "person" who requested the pass from the sheriff. Given that statewide transportation of large quantities of marijuana and products produced from marijuana is of significance to voters, these ambiguities in Section 3(g) must be clarified in order to ensure that a ballot title accurately summarizes the transport-pass framework.
2. Section 4( c )(3) states that all "products produced
   from recreational marijuana being sold" must be
   "designed and packaged pursuant to section 5 of this
   amendment." Larry B. Morris, Sponsor
   Opinion No. 2017-041
   Page 7
   It is unclear if the design and packaging requirements apply strictly to marijuana products "being sold," or if these requirements apply as well to marijuana products 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 and packaging.
3. Section 8 provides that "each and every criminal
   record in this state shall be expunged of such
   marijuana-related convictions if the violation( s)
   occurred prior to the effective date of this
   amendment."
   It is unclear which convictions qualify under Section 8 as "such marijuana convictions" that must be expunged. On the one hand, a reasonable voter might believe that the intent is to expunge current marijuana-related convictions that "occurred prior to the effective date." Under this interpretation, a marijuana- related conviction would only be 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. On the other hand, a reasonable voter might conclude that if a person were serving a marijuana- related sentence when the amendment took effect, each and every marijuana- related conviction on that person's record must be expunged, even those convictions with already-completed sentences. 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.
4. Section 10 enumerates criminal penalties that
   may be imposed against any "person or business who
   violates the provisions pursuant to this amendment."
   A reasonable voter would be unsure if the criminal-penalties section is meant to apply to the State of Arkansas (or to one of the State's subdivisions). That is, Section 10 is ambiguous with respect to whether State actors could be held liable for engaging in conduct prohibited by the amendment. And it is unclear whether, and to what extent, the criminal-penalties section is intended as a waiver of the State's sovereign immunity. These ambiguities are noteworthy especially in light of the legalization of medicinal marijuana in Arkansas. Larry B. Morris, Sponsor Opinion No. 2017-041 Page 8 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 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, ~-
   ~ ~
   LESLIE RUTLEDGE
   Attorney General
   21 Ark. Code Ann.§ 7-9-107(c). THE ARKANSAS DECRIMINALIZATION OF RECREATIONAL MARIJUANA AMENDMENT AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE MARIJUANA PLANT, PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION, AND USE OF MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR RECREATIONAL PURPOSES BY ADULTS 21 YEARS OF AGE OR OLDER MAY NOT BE PROHIBITED 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, AND POSSESSION OF MARIJUANA, POSSESSION OF MARIJUANA PARAPHERNALIA, AND OR THE UNLAWFUL USE OF COMMUNICATION DEVICES TO SELL MARIJUANA, AND THE EXPUNGEMENT OF EACH AND EVERY CRIMINAL RECORDS IN THE STATE RELATING TO SUCH CONVICTION(S); DEFINING RECREATIONAL MARIJUANA CONTAINING MORE THAN 0.3% THC; PERMITTING THE CULTIVATION, PRODUCTION, DISTRIBUTION, AND SALE OF RECREATIONAL MARIJUANA BY ANY BUSINESS OR PERSON 21 YEARS OF AGE OR OLDER; PROVIDING THAT A BUSINESS AND ANYONE 21 YEARS OF AGE OR OLDER MAY CULTIVATE, PRODUCE, AND SELL MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR RECREATIONAL PURPOSES; PROVIDING THAT A PERSON OR BUSINESS MAY CULTIVATE UP TO 25 MATURE AND 25 NON MATURE MARIJUANA PLANTS IN A LOCATION NOT SUBJECT TO PUBLIC VIEW WITHOUT OPTICAL AID; PROVIDING THAT THE LOCATION OF 25 OR MORE CULTIVATING MARIJUANA PLANTS IS PUT ON RECORD WITH THE COUNTY SHERIFF'S OFFICE; PERMITTING THE TRANSPORT OF RECREATIONAL MARIJUANA UPON ANY PUBLIC HIGHWAY OR STREET PROVIDED IF THE WEIGHT OF TRANSPORT EXCEEDS 4LBS OR MORE A TRANSPORT PASS IS OBTAINED FROM THE COUNTY SHERIFF'S OFFICE; 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 THAT IS 1500 FEET AWAY OR MORE FROM A PUBLIC OR PRIVATE SCHOOL, CHURCH, OR DAYCARE MAY SELL RECREATIONAL MARIJUANA TO ANY PERSON 21 YEARS OF AGE OR OLDER; PROVIDING THAT THE RECREATIONAL MARIJUANA THAT IS SOLD IN THE FORM OF EDIBLES OR DRINKABLES (A)IS NOT 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) DOES NOT PERMIT ANYONE UNDER 21 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL, POSSESS, OR USE RECREATIONAL MARIJUANA AND; (E) DOES NOT PROHIBIT THE STATE FROM APPOINTING A REGULATORY BODY TO REGULATE THE CULTIVATION, PRODUCTION, DISTRIBUTION AND SALE OF RECREATIONAL MARIJUANA PURSUANT TO THE AMENDMENT AND (F) IS NOT INTENDED TO LIMIT ANY PRIVILEGES OR RIGHTS OF A QUALIFYING PATIENT, CAREGIVER, PHYSICIAN, OR, ANY LICENSE ENTITY PURSUANT TO THE ARKANSAS MEDICAL MARIJUANA AMENDMENT OF 2016. Section 1. Short Title. This is an amendment to the Arkansas Constitution that shall be called "The Arkansas Decriminalization of Recreational Marijuana Amendment". Section 2 Effective Date. Effective November 7th, 2018 the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus Cannabis) as it pertains to adult use of marijuana for recreational purposes shall be made lawful in every geographic area of every county of this state under Arkansas law, and shall not be an offense, or be a basis for seizure or forfeiture of assets pursuant to the Arkansas Uniformed Controlled Substance Act. Section 3. Definitions. The following terms are defined for the purposes of this amendment: (a) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (L19THC) content of the operator's blood exceeds fourteen nanograms per milliliter (14ng/ml). (b) "Marijuana" or "Recreational 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 (L19THC), and is cultivated to be used as an intoxicant for recreational purposes. (c) "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. (d) "Mature marijuana plants" means recreational marijuana plants that are in the flowering stage and producing colas. (e) "Products produced from recreational marijuana" or "products produced therefrom" means items and substances manufactured from recreational marijuana, containing more than three tenths of one percent (0.3%) delta-9-tetrahydrocannabinol (L19THC) and is used as an intoxicant for recreational purposes, and is consumed into the human body in the form of food, drink, vapor, or smoke. (f) "Remuneration" means an act in which money is being paid to purchase recreational marijuana and products produced therefrom for recreational purposes. (g) "Transport Pass" means a permit provided by a County Sheriff of the state, to permit a business or person who is twenty-one (21) years of age or older to transport recreational marijuana and or products produced therefrom that weigh four pounds (4 lbs) or more on any public road, highway, or street. Each pass shall provide the name of driver, Arkansas driver's license Identification number, and a date of expiration. A transport pass shall be valid for three (3) days and cost five dollars ($5.00). Section 4 The regulation of recreational marijuana. Notwithstanding any other provision of law, the following acts by any business, or person twenty-one (21) years of age or older, regarding recreational marijuana and products produced therefrom 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: (a) may have cultivating up to twenty-five (25) mature marijuana plants, and up to twenty-five (25) non mature plants for recreational purposes provided that: (1) Recreational marijuana is cultivated 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 owned by the business or person(s), or with the consent of the business or person(s) who owns the property, and (2) The location where more than twenty-five (25) plants is being cultivated is placed on record with the county sheriffs office in the county in which the plants are being grown. (b) may transport recreational marijuana plants and products produced therefrom on any public road, highway, or street provided that: (1) If the weight of the plants and, or products produced therefrom is four pounds (4 lbs) or more a transport pass is obtained from the county sheriff where the plants or products produced therefrom is being transported from prior to transport. (c) may produce, distribute, and sell recreational marijuana and products produced therefrom to any business or person 21 years of age or older for recreational purposes, provided that: ( 1) The buyer provides proof of age with any valid state identification card or any state driver's license prior to purchase. (2) The location where recreational marijuana and products produced therefrom 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 products produced from recreational marijuana being sold is designed and packaged pursuant to section 5 of this amendment. Section 5. Recreational marijuana product design, serving size, and packaging. (a) All edible and drinkable products produced from recreational marijuana that is sold by any business or person 21 years of age or older 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 (~9THC) 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 (~ 9 THC) 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 recreational marijuana that is sold by any business or person 21 years of age or older; (1) Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the delta-9-tetrahydrocannabinol (~9THC) content, potential effects of the product, and directions as to how to consume the product. (c) All recreational marijuana and products produced therefrom that is distributed without remuneration shall be exempt from the design, packaging and labeling requirements of this section. Section 6. Marijuana paraphernalia 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 (21) years of age or older, providing that such paraphernalia sold that contains recreational marijuana is designed, packaged, and labeled pursuant to section 5 of this amendment. Section 7. Employers, driving, minors, and regulatory body (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 and products produced therefrom 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 or products produced therefrom, 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 and products produced therefrom. (e) Nothing in this amendment is intended to permit the cultivation, production, distribution, or sale, of any other substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled Substances Act. (f) Nothing in this amendment prohibits the state from appointing a regulatory body to regulate the cultivation, production, distribution, and sale of recreational marijuana and products produced therefrom pursuant to this amendment. (g) Nothing in this amendment is intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity in regards to medical marijuana pursuant to the Arkansas Medical Marijuana Amendment. Section 8. 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(s) as it relates to the sale of marijuana, and whose violation(s) occurred prior to the effective date of this amendment shall be released, and each and every criminal record in this state shall be expunged of such marijuana related convictions if the violations occurred prior to the effective date of this amendment. Section 9. Taxation and distribution of proceeds from the sale of recreational marijuana (a) The following taxes shall be imposed upon the purchase of recreational marijuana 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. (d) The distribution of tax revenues received by the Department of Finance and Administration from the sale of recreational marijuana under this amendment may be determined by the general assembly. Section 10. Penalties Any person or business who violates the provisions pursuant to this amendment the following penalties may be imposed: (a.) 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. (b.) 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. (c.) Third offense: upon conviction is guilty of a Class B misdemeanor, a penalty no greater than one-thousand dollars ($1,000) shall be imposed, and up to ninety (90) days in jail. Section 11. 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.