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

Plain-English summary

Larry B. Morris asked Attorney General Leslie Rutledge to certify a title for his proposed "Arkansas Decriminalization of Recreational Marijuana Amendment." Rutledge rejected the title because she could not fairly summarize two parts of the measure while its terms remained unclear.

First, Section 3(g) defined a "Schedule VI substance" by referring to Ark. Code Ann. § 5-64-215. The AG observed that the statute lists several marijuana-related substances and does not define "marijuana" in subsection (a)(1). She could not tell whether the proposal's term covered some or all of the other substances, or whether its Section 3(g) use of marijuana matched the definition in Section 3(b).

Second, Section 8 proposed expunging certain marijuana offenses from criminal records "of all persons ever convicted of such offenses in his or her lifetime." The AG said the possessive phrase had no obvious antecedent. A voter might understand it to require erasing references to all such persons from every criminal record in the state. The phrase "in his or her lifetime" and Section 8's reliance on the unclear Schedule VI term added to the ambiguity. She said the sponsor needed to clarify the intended scope before she could describe the expungement rule to voters.

Before addressing those reasons for rejection, the AG expressed a separate concern about the close similarity between Morris's submission and one by Mary Berry. She said both had 11 sections with nearly the same titles and content, and that the only difference she could discern was their plant limits: Berry's 36 plants versus Morris's 50, divided into 25 mature and 25 non-mature plants. She urged the sponsors to consolidate future submissions. She did not identify the similarity as a ground for rejecting this title.

What this means for you

If you draft a ballot measure, check that terms used in different sections carry the same meaning and that a sentence about expungement clearly identifies whose records and which convictions it reaches. In this opinion, the AG said she could not repair those uncertainties by editing the ballot title; the measure itself needed clarification.

Currency note

This was a 2017 certification decision about a proposed amendment. Check current Arkansas initiative and marijuana law before applying its reasoning to a new proposal.

Common questions

Q: Did the AG reject Morris's title because Berry filed a similar measure? A: No. The opinion raised the similarity as a concern and urged coordination. Its rejection followed the listed ambiguities in Morris's own measure.

Q: What was the plant-limit difference between the two proposals? A: The AG said Berry's proposal capped a licensed cultivator at 36 plants, while Morris's allowed 50, split into 25 mature and 25 non-mature plants. She called this the only discernible difference and did not regard it as meaningful for her ballot-title duties.

Q: Did the opinion identify sheriff registration as unique to Morris? A: No. The AG compared the proposals' plant limits but did not identify a sheriff-registration provision as a difference between them.

Q: What was unclear about "Schedule VI substance"?
A: The AG could not tell which substances the proposal covered by reference to § 5-64-215 or how Section 3(g)'s usage related to Section 3(b)'s definition of marijuana. She said consistent definitions were needed for an accurate ballot title.

Q: Which criminal records would be expunged?
A: The AG could not determine that from Section 8. She questioned what the phrase "of all persons ever convicted" modified, what "in his or her lifetime" added, and how the measure's unclear Schedule VI definition affected the listed offenses.

Background and legal framework

Ark. Code Ann. § 7-9-107 required review of the proposed popular name and ballot title before circulation. The AG said ambiguities in the proposal itself prevented her from substituting an accurate title. She invited Morris to redesign and resubmit the measure and warned that further ambiguities might emerge on review of a revision.

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2017-056

May 19, 2017

Larry B. Morris, Sponsor
50 Crest Street
West Fork, AR 72774

Dear Mr. Morris:

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.

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.

At the outset, I must mention my grave concerns about the potential for certifying two (or more) substantively identical recreational-marijuana proposals. As you know, my office has been reviewing the measures submitted by Mary Berry along with your proposals. The submissions currently pending from you and Ms. Berry-yours, dated May 5, 2017 and addressed in this response, and Ms. Berry's, dated May 9, 2017-are effectively indistinguishable. The text of both proposals has 11 sections; the 11 sections have virtually the same titles; and the sections' content overlaps almost entirely. Based on my reading of Ms. Berry's recreational-marijuana proposal and yours, the only discernible difference is that Ms. Berry caps at 36 the number of marijuana plants a licensed person or business can cultivate, whereas your proposal limits licensed cultivators to 50 marijuana plants (25 mature and 25 non-mature plants). I do not believe this difference is meaningful in terms of my office's voter-initiative obligations, described below.

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. 2017-056
Page 2

I have a statutory duty to certify non-misleading ballot titles and popular names for measures proposed under Article 5, Section 1 of the Arkansas Constitution. But if proposals are no different textually, by definition their ballot titles and popular names will be identical-and I could not substitute a title for one measure that might distinguish it from the other. This would be extremely problematic for voters, who in a statewide election would see (on the same ballot) two proposed constitutional amendments or acts with identical ballot titles and popular names. Arkansas statute also requires that I ensure each ballot title and popular name fairly apprises voters of potential changes to existing law. Again, since Ms. Berry's submission and yours are effectively the same, this task would be impossible with respect to both proposals.

For these reasons, and because Ms. Berry has indicated to my office that you are coordinating your efforts, I urge you to consolidate future submissions. Of course, I will review any proposed measure sent to my office for certification. But if I determine that a measure is substantively identical to one I have already reviewed, I may be constrained to respond to the later submission solely by reference to the earlier proposal.

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, ifpracticable, 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 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 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.

Larry B. Morris, Sponsor
Opinion No. 2017-056
Page 3

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

The Arkansas Decriminalization of Recreational Marijuana Amendment

Ballot Title

An amendment to the Arkansas Constitution concemmg the cannabis 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 [sic] 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 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. 2017-056
Page 4

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; 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 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) 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.

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

4
Paffordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).

Larry B. Morris, Sponsor
Opinion No. 2017-056
Page 5

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 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

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
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.

Larry B. Morris, Sponsor
Opinion No. 2017-056
Page 6

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 convey an intelligible idea of the scope and significance of a proposed change in the law. 18

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.

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

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. 2017-056
Page 7

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) states that a "Schedule VI substance" for purposes of your proposed amendment means "marijuana pursuant to The Arkansas Uniform Controlled Substances Act§ 5-64-215."

Section 3(g) raises questions that cannot be resolved in a manner conducive to certifying a non-misleading ballot title. First, Ark. Code Ann. § 5-64-215 ("Additional substances to be placed in Schedule VI") contains a number of marijuana-related substances, "marijuana" at § 5-64-215(a)(l) being but one. 21 And "marijuana" itself is not defined in subsection (a)( 1) of the statute. It is thus unclear how the "Schedule VI substance" referenced in your proposed amendment equates to "marijuana" as that term appears in Ark. Code Ann. § 5-64-215(a)(l). Likewise, it is unclear if a "Schedule VI substance" in the proposed amendment would include some, or all, of the illegal substances listed at§§ 5-64-215(a)(2-6).

Second, it is unclear in what way a "Schedule VI substance" as defined in section 3(g) of your proposal relates to the "marijuana" defined in section 3(b) of the proposal. Both subsections involve or employ definitions of "marijuana,'' but I cannot ascertain whether "marijuana" in section 3(b) is the same as "marijuana" in section 3(g). Because consistent definitions of "marijuana" are crucial to a fair translation of your proposed amendment to a ballot title, these ambiguities must be clarified.

2. Section 8 provides that certain "marijuana offenses under state law shall be expunged from each and every criminal record in the state of all persons ever convicted of such offenses in his or her lifetime .... " Section 8(a)(l) through (a)(5) then lists a series of offenses, all of which refer to a "schedule VI substance."

The phrase "of all persons ever convicted of such offenses in his or her lifetime" is ambiguous. It is not apparent what the possessive phrase "of all persons ever 21 E.g., Ark. Code Ann.§§ 5-64-215(a)(2-4), (a)(S)(A-K), (a)(6), including subparts.

Larry B. Morris, Sponsor
Opinion No. 2017-056
Page 8

convicted" modifies; there is no obvious antecedent for it in section 8(a). A reasonable voter could, therefore, conclude that references to "all persons ever convicted of such offenses" must be expunged from every criminal record in the state. If this far-reaching outcome is the intended result of section 8(a), it must be stated with more clarity. The significance of the phrase "in his or her lifetime" is likewise unclear, given that only living persons can be convicted of a criminal offense. Finally, the offenses listed in section 8(a)(l-5) contain references to "schedule VI substances." For the reasons discussed in Part 1, above, a "schedule VI substance" is ambiguous in the context of your proposal. Because the effect of the proposed measure on criminal convictions is a matter of great importance to Arkansas voters, these ambiguities must be clarified before I can accurately summarize the expungement requirements 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 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. 22 You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

~k
LESLIE RUT~
Attorney General

22
Ark. Code Ann.§ 7-9-107(c).

THE ARKANSAS DECRIMINALIZATION OF RECREATIONAL MARIJUANA AMENDMENT

AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS 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; 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 the 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 1
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 (.ll9THC) 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 (.ll9THC), 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 (.ll9THC) 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 or products produced therefrom for recreational purposes. (g) "Schedule VI substance" means marijuana pursuant to The Arkansas Uniformed Controlled Substance Act
§ 5-64-215

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.

(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 (d9THC) 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 (d9THC) 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 (d9THC) 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 to any person twenty-one (21) years of age or older by any business or person twenty-one (21) years of age or older 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, regulatory body, medical marijuana privileges: (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 of 2016.

Section 8. Non-violent marijuana offenders and criminal record expungement. (a) The following marijuana offenses under state law shall be expunged from each and every criminal record in this state of all persons ever convicted of such offenses in his or her lifetime, and any person who is currently serving incarceration, probation, or parole for one or more of such offenses shall be released:

1. possession of a schedule VI substance;
2. possession with the intent to manufacture and deliver a schedule VI substance;
3. manufacturing, distributing, and delivering a schedule VI substance;
4. distributing or delivering a schedule VI substance in proximity of certain facilities;
5. the unlawful use of a communication device as it pertains to the distribution of a schedule VI substance;
6. possession of drug paraphernalia as it pertains to a schedule VI substance.
   (b) Nothing in this section is intended to permit the release of any person currently serving incarceration, probation, or parole for other offences not listed in this section.

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
The following offences upon conviction is guilty of a violation, a penalty no greater than one-hundred and fifty dollars ($150) shall be imposed: (a) Any business or person 21 years of age or older found guilty of knowingly providing recreational marijuana to a person under the age of 21, with or without remuneration, or (b) any person under the age of 21 found guilty of cultivating, producing, distributing, selling, possessing or attempting to possess recreational marijuana.

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.