Why did the Arkansas AG reject Mary Berry's third 2017 cannabis legalization amendment, the one with effective dates of November 7, 2018 and April 19, 2019?

Plain-English summary

Mary L. Berry submitted "The Arkansas Recreational Marijuana Amendment" for popular-name and ballot-title certification in July 2017. Attorney General Leslie Rutledge rejected it after identifying three ambiguities in the proposal's text. She said each submission must be reviewed on its own terms and that additional ambiguities may become apparent in later versions.

Defect 1: Effective date contradicts license-issuance date. Section 2 of the proposal said the cultivation, production, distribution, sale, possession, and use of marijuana "shall be regulated pursuant to the provision of this amendment and made lawful" effective on and after November 7, 2018. Section 9, however, gave the state until April 19, 2019 to begin issuing marijuana licenses and plant tags, with a fallback if the state failed to issue them. The AG said voters could not tell whether the listed activities would be lawful when the measure took effect or only after licenses and tags became available.

Defect 2: Age rules unclear for business associates. Section 4(a) said any "person ... 21 years of age or older shall qualify to obtain [a marijuana] license," and "any business ... shall qualify to obtain such a license." For natural persons, the age cutoff is clear. But the proposal did not say whether the people associated with a license-holding business (owners, officers, members, employees, agents) had to be 21 or older. Section 4(d) and (f) referred to the business's licensing rights without resolving the ambiguity. The AG said she could not summarize the age requirements for individuals affiliated with corporate applicants until that ambiguity was clarified.

Defect 3: Public-view cultivation clause is ambiguous. Section 4(d) said a licensee could 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." The dependent clause "or with the consent of the business or person(s) who owns the property" had two natural readings:

• Reading 1: The license-holder may cultivate either on land they own or on someone else's land with the owner's consent. In both cases, the marijuana cannot be in public view.
• Reading 2: The license-holder may cultivate on their own land (not in public view), or on someone else's land with consent (and in that latter case, the public-view restriction does not apply).

The AG noted that voters could plausibly read the clause either way, and the visibility rules for cannabis cultivation were significant enough that voters needed to know which reading governed before they could vote on the proposal.

The AG declined to substitute language and rejected the petition. She invited Berry to redesign and resubmit the measure.

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: Why did the effective-date issue matter?
A: The AG said the two sections left the legal status of marijuana activities unclear between November 7, 2018 and the start of licensing and plant tags, which could be April 19, 2019 or later. She could not describe that effect fairly in a ballot title until the proposal was clarified.

Q: What were the proposed taxes and licensing fees?
A: A marijuana license cost not more than $30 per year, with no cap on the number issued. Plant tags cost not more than $6 each, with up to 36 per licensee per year. Sales would be subject to existing state sales tax plus a 5% excise tax plus a 2% local sales tax.

Q: Did the AG evaluate the license fees or compare this plan with other states? A: No. The proposed amendment included a $30 annual license cap and $6 plant tag cap, but the AG's three listed ambiguities concerned effective dates, age rules for people associated with business applicants, and cultivation on property owned by someone else. She did not compare the proposal with other states or assess its merits.

Q: What about workplace and driving exceptions?
A: Section 7 said the amendment was "not intended to require an employer to permit or accommodate" marijuana activities in the workplace, "not intended to permit driving under the influence of marijuana," "not intended to permit the transfer of recreational marijuana, with or without remuneration, to a person under the age of twenty-one (21)," "not intended to permit a person under the age of twenty-one (21) to cultivate, produce, sell, possess, or use recreational marijuana," and "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." Section 3(a) defined "driving under the influence of marijuana" as operating a motor vehicle with a Delta-9-THC blood content over 14 ng/mL.

Q: Would the state have needed to issue licenses on November 7, 2018? A: The AG could not tell how Section 2's November 7 effective date worked with Section 9's April 19, 2019 deadline to begin issuing licenses and plant tags. She said voters needed to know whether the listed activities were lawful in the interval.

Q: Could Berry revise and resubmit after this rejection?
A: Yes. The AG invited a redesigned measure and ballot title. She warned that a later review might identify further ambiguities.

Background and statutory framework

Ark. Code Ann. § 7-9-107 requires AG review of a proposed popular name and ballot title before petitions circulate. The AG explained that her certification decision addressed whether the title fairly summarized the measure, not whether the proposal was good policy.

The Arkansas Supreme Court has produced a long line of cases on what counts as a sufficient ballot title. The relevant rules for this opinion: a measure with internal inconsistencies cannot be cleanly summarized (Roberts v. Priest); ambiguous wording in operative provisions must be cured before a fair title can be drafted (Wilson v. Martin); and voters need enough information from the title to make a "reasoned decision" (Lange v. Martin).

The Berry submissions also illustrate why substitution is not always available. Section 7-9-107(b) lets the AG "substitute and certify a more suitable and correct popular name and ballot title" if practicable. But substitution only works when the defect is in the title's wording. When the defect is in the proposal's own text (as with all three Berry submissions), the AG cannot fix it without rewriting someone else's measure, which would exceed his role.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107, popular name and ballot title certification
• Ark. Code Ann. § 7-5-309, five-minute voting-booth time limit
• Ark. Code Ann. § 5-64-505, Uniform Controlled Substances Act asset forfeiture (referenced in the proposal's Section 6)

Cases: Standard ballot-title authorities (above), with Wilson v. Martin and Roberts v. Priest doing the heaviest lifting.

Source

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

Original opinion text

STATE OF A RKA N SAS
ATTORN EY GE N ERAL
LES LI E RU TLEDGE

Opinion No. 2017-076

July 7, 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.

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.

Please note that my office treats each proposed measure, and any successive proposal from the same sponsor, as a discrete submission that must be evaluated on its own terms according to the standards established for popular names and ballot titles by the Arkansas Supreme Court. Because the Court's scrutiny of voter-initiated acts and amendments is exacting, my office places great importance on the rigorous analysis of every submission. Each response to a request for certification will, if appropriate, identify ambiguities that militate against certifying the proposed ballot title. However, the ambiguities discussed in a given response will not necessarily be all of the ambiguities contained in the proposal. If additional ambiguities become apparent with successive submissions, I consider it my duty under Ark. Code Ann. § 7-9-107 to identify those ambiguities regardless of whether previous responses have included them.

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

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K, ARKAN SAS 72201 TELE PH ONE (501) 682-2007 · FAX (50 1) 682-8084 ARKANSASAG.GOV

Mary L. Berry, Sponsor
Opinion No. 2017-076
Page 2

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 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 Recreational Marijuana Amendment

1
See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.WJd 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). 2 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

Mary L. Berry, Sponsor
Opinion No. 2017-076
Page 3

Ballot Title

An amendment to the Arkansas Constitution concernmg the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of marijuana and products produced therefrom for recreational purposes may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; 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 [sic] 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) 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; 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

Mary L. Berry, Sponsor
Opinion No. 2017-076
Page 4

given for those engaged in such activity to obtain such licenses and tags for the activity in which they are engaged.

RESPONSE

The popular name is primarily a useful legislative device. 4 It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. 5 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency. 6

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. 7 According to the Court, a ballot title will not be legally sufficient unless it "adequately inform[s]" the voters of the contents of a proposed amendment or act so that they can make a "reasoned decision in the voting booth." 8 A ballot title's failure to "honestly and accurately reflect what is contained in the proposed [act or] Amendment" may lead the Court to conclude that the "omission is significant." 9 The Court has also 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 title may be deemed insufficient. 11

4
Paffordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
5
See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see note 16 infra. 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
7
Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
8
Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
9
Id. at 9, 500 S.W.3d at 159.
10
Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
11
Id., 500 S.W.3d at 167.

Mary L. Berry, Sponsor
Opinion No. 2017-076
Page 5

Additionally, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." 12 At the same time, however, a ballot title must be brief and concise; 13 otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. 14 The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. 15 The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." 16 The ballot title must be honest and impartial, 17 and it must conver; 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)

12
Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
13
See Ark. Code Ann. § 7-9-107(b).
14
Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
15
Id. at 293, 844 S.W.2d at 946-47.
16
Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)). 17 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
18
Christian Civic Action Committee, note 16 supra, 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. 2017-076
Page 6

clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities in the text of the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposal.

1. Section 2 of your proposal states that the effective date for "cultivation, production, distribution, sale, possession, and use of the cannabis plant" is November 7, 2018. The proposal states that on this date, these activities "shall be regulated pursuant to the provision of this amendment and made lawful."

Section 9 of your proposal requires the state to "begin issuing marijuana licenses and plant tags by April 19th, 2019." According to Section 9, if there are no licenses or plant tags available by April 19, 2019, then the relevant regulatory scheme "shall not be enforced ... until such licenses and tags are issued."

There is a fundamental inconsistency between the measure's effective date, stated in Section 1, and the date described in Section 9 by which licensure should be complete. Section 1 states that on November 7, 2018, "cultivation, production, distribution, sale, possession, and use of the cannabis plant ... shall 21 be regulated
... and made lawful." Thus, a reasonable voter would believe that the marijuana- related activities listed in Section 1 could lawfully begin on November 7, 2018.

21
Use of the future tense "shall" in the context of the measure's effective date creates an additional ambiguity. It is unclear if the marijuana-related activities are to be legalized on or after November 7, 2018 (but not before), or ifthe activities would automatically become legal on November 7, 2018.

Mary L. Berry, Sponsor
Opinion No. 2017-076
Page 7

But Section 9 states that regulation (at least as to licenses and plant tags) need not start until April 19, 2019 or later. Based on Section 9, a reasonable voter would believe that the activities permitted by issuance of a license or plant tag might not be lawful until at least April 19, 2019. And if licenses and plant tags are not issued until April 19, 2019 (or afterward), it is unclear what would be the legal status of "cultivation, production, distribution, sale, possession, and use of the cannabis plant" upon the measure's effective date of November 7, 2018.

These issues are especially problematic given that the proposal is self-executing, pursuant to Section 10. The inconsistencies in Sections 2 and 9 must be resolved before I can accurately summarize the import of the measure's effective date in a ballot title.

2. Section 4(a) of your proposal states that "any person who is a resident of [Arkansas] and is 21 years of age or older shall qualify to obtain [a marijuana] license." Section 4(a) also states that "any business ... shall qualify to obtain such a license." Section 4(d) states that a "business . . . issued a marijuana license and plant tags may cultivate marijuana." Section 4(t) states that a "business ... with a marijuana license ... may sell recreational marijuana."

With respect to natural persons, it is apparent that the proposal limits marijuana licensure to those 21 years of age or older. But it is unclear if the persons associated with a business applying for a marijuana license (e.g., owners, officers, members, employees, agents) must also be 21 years of age or older. I cannot summarize the age requirements for individuals affiliated with corporate applicants until this ambiguity is clarified.

3. Section 4( d) of your proposal states that a person or business 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."

The dependent clause "or with the consent of the business or person( s) who owns the property" is ambiguous. A reasonable voter might interpret the clause to mean

Mary L. Berry, Sponsor
Opinion No. 2017-076
Page 8

that a licensee may cultivate marijuana on land the licensee owns, or, if the licensee is not the landowner, on land the licensee has been given permission to use by the landowner. Under this interpretation, marijuana could not be cultivated "subject to public view," regardless of whether the licensee owned the land in question.

But a reasonable voter might also interpret the clause to mean that ifthe licensee is not the landowner (such that the marijuana is cultivated "with the consent of the business or person(s) who owns the property"), then the marijuana could be grown in public view. Under this interpretation, whether marijuana could be cultivated such that it is visible "without the use of binoculars, aircraft, or other optical aids" would depend on the licensee's ownership of the land in question.

Until the ambiguity created by the clause "or with the consent of the business or person( s) who owns the property" is clarified, I cannot fairly summarize in a ballot title the visibility requirements applicable to cultivation of marijuana.

CONCLUSION

Again, 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,

~ ~- ;.· /#1--fa
LESLIE RUTLEDGE
Attorney General
22
Ark. Code Ann.§ 7-9-107(c).

THE ARKANSAS RECREATIONAL 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 MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR RECREATIONAL PURPOSES MAY NOT BE PROHIBITED UNDER STATE LAW, BUT SHALL BE REGULATED UNDER STATE LAW; RECOGNIZING THAT SUCH ACTIVITIES REMAIN UNLAWFUL UNDER FEDERAL LAW; 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 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) 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; 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 Recreational 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 (A 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 (A 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" 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 (A 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.

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 ofa Class C misdemeanor, a penalty not greater than five-hundred dollars ($500) shall be imposed, up to thitty 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 (A 9THC) per serving.
(3) Shall be delineated or scored into standardized serving sizes ifthe product contains more than one serving and is in solid form.
( 4) Shall be homogenized to ensure uniform disbursement of delta-9-tetrahydrocannabinol (A9THC) throughout the product.
(5) Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the potential effects of the product, and directions as to how to consume the product. (b) All smokable and vaporizable 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:
(I) Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the delta-9-tetrahydrocannabinol (A 9THC) 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, minors, controlled substances, and medical marijuana (a) Nothing in this amendment is intended to require an employer to permit or accommodate the cultivation, production, distribution, sale, possession, or use of recreational marijuana in the workplace or to affect the ability of employers to have policies restricting the use of recreational marijuana by employees. (b) Nothing in this amendment is intended to permit driving under the influence of marijuana. (c) Nothing in this amendment is intended to permit the transfer ofrecreational marijuana, with or without remuneration, to a person under the age of twenty-one (21 ). (d) Nothing in this amendment is intended to permit a person under the age of twenty-one (21) to cultivate, produce, sell, possess, or use recreational marijuana. (e) Nothing in this amendment is intended to permit the unauthorized cultivation, production, distribution, or sale, of any substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled Substances Act.

(f) 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. 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:
(I) 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 9. 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 10. 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.