Did the Arkansas AG approve a 2017 ballot title for legalizing recreational marijuana under the 'Arkansas Adult Recreation of Marijuana Amendment'?

Plain-English summary

In May 2017, sponsor Mary L. Berry submitted a proposed Arkansas constitutional amendment (the "Arkansas Adult Recreation of Marijuana Amendment") that would have legalized recreational cannabis cultivation, sale, and use for adults 21 and older, with a 36-plant cultivation cap, a 5% state excise tax, a 2% local sales tax, and automatic expungement for prior marijuana convictions. AG Leslie Rutledge rejected the popular name and ballot title without substituting a corrected version.

The rejection rested on ambiguities in the measure's text that the AG could not resolve through a substituted ballot title. Section 3(j) defined "Schedule VI substance" by referring to Ark. Code Ann. § 5-64-215, but the statute lists several marijuana-related substances and does not define "marijuana" in subsection (a)(1). The relationship between Section 3(j)'s "Schedule VI substance" and Section 3(b)'s "marijuana" was unclear. Section 8's expungement clause also lacked a clear antecedent; the AG said a voter could read it as requiring references to all persons convicted of the listed offenses to be expunged from every criminal record in the state.

The AG separately raised concerns about a near-identical proposal submitted by Larry B. Morris days earlier. Both had 11 sections with virtually the same titles and overlapping content; the only difference she could discern was Berry's 36-plant cap versus Morris's 50-plant cap. She urged the sponsors to consolidate future submissions, but identified ambiguities in Berry's measure as the grounds for this rejection.

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.

Historical context: ballot-title certification under Ark. Code Ann. § 7-9-107

At the time of this opinion, Arkansas required every initiated act or constitutional amendment to be submitted to the AG for certification of its popular name and ballot title before petitions could be circulated for signature. The AG's review under Ark. Code Ann. § 7-9-107 was limited to whether the popular name and ballot title accurately and impartially summarized the measure. The AG was not authorized to opine on the policy merits of a proposal.

The AG explained that ambiguities in the underlying measure can make an accurate ballot title impossible. She declined to substitute a title because Berry first needed to clarify the measure's language about Schedule VI substances and expungement.

Common questions

Why did the AG refuse to write a substitute ballot title rather than just fix Berry's?

Because the ambiguity was in the proposal text itself, not just the ballot title. Where the meaning of a proposed amendment cannot be determined from its own words (here: which "Schedule VI substance" was being referred to, and whose lifetime convictions were being expunged), there is no fixed substantive content the AG can summarize. Roberts v. Priest holds that internal inconsistencies in the proposal "would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." The AG explained that she could not certify a ballot title until the sponsor first clarified the measure.

What was the problem with two identical recreational-marijuana proposals?

Berry and Morris had submitted near-identical amendments four days apart, with 11 sections and content overlapping almost entirely. The only difference the AG could discern was the cultivation cap (36 plants for Berry, 50 plants for Morris). She warned that indistinguishable ballot titles would be problematic for voters and urged the sponsors to consolidate future submissions. She did not make duplication a ground for rejecting Berry's title.

Did the AG say anything about the merits of recreational marijuana legalization?

No, and the opinion is explicit on this point. The AG wrote: "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." The rejection was strictly procedural.

What happens after a rejection like this?

The AG invited Berry to redesign the measure and ballot title and resubmit them for certification. She also urged Berry and Morris to consolidate future submissions.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2015) (AG ballot-title certification)
• Ark. Code Ann. § 7-5-309 (five-minute time limit in voting booth)
• Ark. Code Ann. § 5-64-215 (Schedule VI substances)
• Ark. Const. art. 5, § 1 (Amendment 7, citizen initiative process)
• Lange v. Martin, 2016 Ark. 337 (ballot title must allow "reasoned decision")
• Wilson v. Martin, 2016 Ark. 334 (technical terms must be defined)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (omission standard, brevity rule)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies in proposal)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/
• Official PDF: https://opinionstorage.blob.core.windows.net/opinions/2017-060.pdf

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2017-060

May 23, 2017

Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677

Dear Ms. Berry:

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 Larry Morris along with your proposals. The submissions currently pending from you and Mr. Morris-yours, dated May 9, 2017 and addressed in this response, and Mr. Morris's, dated May 5, 2017-are effectively indistinguishable. Both proposals have 11 sections; the 11 sections have virtually the same titles; and the sections' content overlaps almost entirely. Based on my reading of Mr. Morris's recreational-marijuana proposal and yours, the only discernible difference is that Mr. Morris caps the number of plants a licensed person or business can cultivate at 50 plants (25 mature and 25 non-mature plants). Your proposal limits licensed cultivators to 36 marijuana plants. However, I do not believe this difference is meaningful in terms of my office's voter-initiative obligations.

323 CENTER STREET, SUITE 200 ' LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG .GOV

Mary L. Berry, Sponsor
Opinion No. 2017-060
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 Mr. Morris's submission and yours are effectively the same, this task would be impossible with respect to both proposals.

For these reasons, and because you have indicated to my office that you are coordinating your efforts with Mr. Morris, 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.

Mary L. Berry, Sponsor
Opinion No. 2017-060
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 honest!~, 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 Adult Recreation of 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 recreational marijuana 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, and parole of all persons whose current and only conviction(s) in which they are serving were for violating State laws pertaining to marijuana possession, manufacture, distribution, and delivery, possession of marijuana paraphernalia, and or [sic] the unlawful use of a communication device as it pertains to the distribution and delivery of marijuana; and the expungement of such marijuana offenses from all persons [sic] criminal record [sic] ever convicted of such offenses in the State; authorizing the use of recreational marijuana by persons 21 years of age or older; providing that a business and any resident 21 years of age or older may obtain a marijuana license permitting the 3
See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

Mary L. Berry, Sponsor
Opinion No. 2017-060
Page 4

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 person or 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 person 21 years of age or older; providing 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 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; (d) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, (e) 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 marijuana licenses, and plant tags by April 19th, 2019[,] such licenses and tags shall not be required to cultivate, produce, and sell 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 4 Paffordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).

Mary L. Berry, Sponsor
Opinion No. 2017-060
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 disa~proved the use of terms that are "technical and not readily understood by voters." 1 Without a definition of such terms in the ballot title, the 11 title may be deemed insufficient.

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.

Mary L. Berry, Sponsor
Opinion No. 2017-060
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 appropriate, in my opinion, for me to try to substitute and certify a more suitable

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.

Mary L. Berry, Sponsor
Opinion No. 2017-060
Page 7

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

Section 30) 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 § 215(a)(l) being but one. 21 And "marijuana" itself is not defined in subsection (a)(l) 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 30) 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 30). 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 convicted 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)(6) 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 clause "of all persons ever convicted" modifies; there is no obvious antecedent for it in section 8(a). A 21 E.g., Ark. Code Ann. §§ 5-64-2 l 5(a)(2-4), (a)(5)(A-K), (a)(6), including subparts.

Mary L. Berry, Sponsor
Opinion No. 2017-060
Page 8

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 clause "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-6) 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 1s 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.

Sincerely,

~
LESLIE RUTLEDGE
Attorney General

22
Ark. Code Ann.§ 7-9-107(c).

THE ARKANSAS ADULT RECREATION OF MARIJUANA AMENDMENT (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 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, AND PAROLE OF ALL PERSONS WHOSE CURRENT AND ONLY CONVICTION(S) IN WHICH THEY ARE SERVING WERE FOR VIOLATING STATE LAWS PERTAINING TO MARIJUANA POSSESSION, MANUFACTURE, DISTRIBUTION, AND DELIVERY, POSSESSION OF MARIJUANA PARAPHERNALIA, AND OR THE UNLAWFUL USE OF A COMMUNICATION DEVICE AS IT PERTAINS TO THE DISTRIBUTION AND DELIVERY OF MARIJUANA; AND THE EXPUNGEMENT OF SUCH MARIJUANA OFFENSES FROM ALL PERSONS CRIMINAL RECORD EVER CONVICTED OF SUCH OFFENSES IN THE STATE; AUTHORIZING THE USE OF RECREATIONAL MARIJUANA BY PERSONS 21 YEARS OF AGE OR OLDER; PROVIDING THAT A BUSINESS AND ANY RESIDENT 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 PERSON OR 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 PERSON 21 YEARS OF AGE OR OLDER; PROVIDING 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 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; (D) IS NOT INTENDED TO PERMIT THE TRANSFER OF RECREATIONAL MARIJUANA TO ANYONE UNDER 21 YEARS OF AGE, (E) 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 MARIJUANA LICENSES, AND PLANT TAGS BY APRIL 19TH, 2019 SUCH LICENSES AND TAGS SHALL NOT BE REQUIRED TO CULTIVATE, PRODUCE, AND SELL 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 Adult Recreation Of Marijuana Amendment"

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 marijuana and the products produced therefrom for recreational purposes 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) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (.6.9THC) content of the operator's blood exceeds fourteen nanograms per milliliter (14ng/ml). (b) "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 {.6.9THC) and is cultivated to be used as an intoxicant for recreational purposes. (c) "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 therefrom 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 person or business. (d) "Marijuana paraphernalia" or "drug 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. (e) "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. (f) "Products produced from marijuana" or "products produced therefrom" means items and substances manufactured from marijuana, containing more than three tenths of one percent delta-9-tetrahydrocannabinol
{.6.9THC) and is used as an intoxicant for recreational purposes that is consumed into the human body in the form of food, drink, vapor, or smoke. (g) "Recreational marijuana" means marijuana and products produced from marijuana that is used as an intoxicant for recreational purposes. (h) "Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational marijuana. (i) "Remuneration" means an act in which money is being paid to purchase recreational marijuana. (j) "Schedule VI substance" means marijuana pursuant to The Arkansas Uniformed Controlled Substance Act
§ 5-64-215

Section 4. The regulation of recreational marijuana.
The cultivation, production, distribution, sale, possession, and use of marijuana 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 such a business or person 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(c) 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 owned by the business or person, or with the consent of the business or 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 or person with a marijuana license as defined in section 3(c) may sell recreational marijuana to any person who is twenty-one years of age or older 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 location 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 5 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 violation, a penalty not greater than two-hundred dollars ($200) shall be imposed and a suspension to obtain a marijuana license for six (6) months.
(2.) Second 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 days (30) 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 5. Recreational marijuana product design, serving size, labeling and packaging. (a) All edible and drinkable recreational marijuana that is sold to any person twenty-one (21) years of age or older, by a person or business with a marijuana license as defined in Section 3(c) 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 (b.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 recreational marijuana that is sold to any person twenty-one (21) years of age or older, by a person or business with a marijuana license as defined in Section 3(c) shall:
(1) Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the delta-9-tetrahydrocannabinol {.tl19THC) content, potential effects of the product, and directions as to how to consume the product. (c) Recreational marijuana 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, with or without a marijuana license, shall be exempt from the design, packaging, and labeling requirements of this section.

Section 6. 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 (21) 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 and the recreational marijuana being sold in that paraphernalia is designed, packaged, and labeled pursuant to section 5 of this amendment.

Section 7. Employers, driving, medical marijuana, minors, and controlled substances. (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 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. (d) 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 ). ( e) 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. (f) 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 8. Non-violent marijuana offenders and criminal record expungement. (a) The following marijuana offenses convicted 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 being convicted of one or more of such offenses shall be released:

1. possession of marijuana, a schedule VI substance;

2. possession with the intent to manufacture and deliver marijuana, a schedule VI substance;

3. manufacturing, distributing, and delivering marijuana, a schedule VI substance;

4. distributing or delivering marijuana, a schedule VI substance in proximity of certain facilities;
5. the unlawful use of a communication device as it pertains to the distribution of marijuana, a schedule VI
   substance;
6. possession of drug paraphernalia as it pertains to marijuana, 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 provided 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 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 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. Marijuana licenses and plant tags.
The state shall begin issuing marijuana licenses and plant 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 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 such licenses and plant tags.

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.