Why did Arkansas reject the proposed recreational marijuana ballot title in Opinion 2017-093?

Plain-English summary

Mary L. Berry submitted a proposed constitutional amendment concerning recreational marijuana. Attorney General Leslie Rutledge rejected its popular name and ballot title because the proposal itself had ambiguities she could not resolve by rewriting the title. She invited Berry to redesign and resubmit both the measure and its title.

The AG identified five problems. Section 1 listed two possible popular names and left open any name the AG might provide. Under Ark. Code Ann. § 7-9-107, a sponsor must submit a definite name for review. Sections 2 and 4 used the confusing construction “acts to cultivate, produce, distribute,” then listed actions without defining “carry” or “recreational purposes.” Section 4 did not make clear whether a business's owners, officers, employees or agents had to be at least 18. Section 8 left the scope of expungement uncertain: its wording could reach references to people throughout Arkansas's criminal records, might include people living outside Arkansas, and did not reconcile its “non-violent” heading with listed offenses that could involve violent circumstances.

These were barriers to explaining the proposal fairly to voters. The AG said the listed ambiguities might not be exhaustive and that more could emerge after revisions. The opinion did not decide whether marijuana legalization was good policy.

Currency note

This opinion addresses a proposal submitted in 2017. It records the AG's decision on that text, not the current status of Arkansas marijuana law or the present rules for petition review. Check current law before preparing or relying on a ballot measure.

Background and statutory framework

Ark. Code Ann. § 7-9-107 required the AG to review proposed popular names and ballot titles before petitions circulated. The AG could certify a suitable title, substitute a more suitable one when practicable, or reject a sufficiently misleading submission. The opinion explains that a title must fairly and intelligibly tell voters what a measure would do. When the measure's own language is too unclear to summarize, changing the title cannot solve the problem.

The enclosed proposal would have permitted specified marijuana activities under state law for adults 18 or older and provided for expungement of certain marijuana convictions. Those provisions never became law through this opinion; they are the language the AG was asked to review.

The AG's reasoning

Popular name. Section 1 of the proposal offered “The Arkansas Recreational Marijuana Amendment,” “The AROMA,” or any suitable name the AG might provide. The AG said the sponsor had to submit a definite name. Her power to substitute a more suitable name did not allow her to choose from the sponsor's open-ended alternatives.

Description of lawful acts. The proposal's phrase “acts to cultivate, produce, distribute” mixed a noun with verbs. The AG could not tell voters clearly what acts would become lawful. She also needed definitions of “carry” and “recreational purposes,” terms that affected the reach of the proposed permission.

Age of business representatives. The proposal addressed acts by a business entity or a person aged 18 or older. It left unclear whether people acting for a business, including owners, officers, employees and agents, also had to be 18 or older.

Expungement. Section 8 spoke of “marijuana related offenses convicted under state law,” though people rather than offenses are convicted. The placement of “of all living persons” made the reach of expungement unclear. The AG also could not tell whether the provision covered people living outside Arkansas. Its heading referred to “non-violent” offenses, but its list could include offenses committed in violent circumstances; the proposal did not define “non-violent.”

The AG declined to substitute a ballot title because the proposal's text first needed clarification. She instructed the sponsor to redesign and resubmit it if she wished.

Common questions

Could the AG choose one of the suggested popular names?

The opinion says the sponsor needed to submit a definite proposed popular name. The AG could approve, reject or substitute a more suitable name in response to that submission; she would not select from an open-ended list in the proposed amendment.

Did the AG reject recreational marijuana legalization on its merits?

No. She expressly limited her review to whether the proposed name and title fairly summarized the measure. She said her decision did not express a view on the proposal's merits.

Why did the proposal's reference to businesses matter?

The AG could see that natural persons covered by Section 4 had to be at least 18. She could not tell whether the same age limit applied to a business's representatives, so she could not summarize that requirement for voters.

What was unclear about expungement?

The wording did not clearly identify whose records would be affected, whether out-of-state residents were included, or how the “non-violent” heading related to the listed offenses. The AG asked for clarification before those effects could be described in a ballot title.

Could the sponsor submit a revised proposal?

Yes. The AG's conclusion expressly invited redesign and resubmission of the measure, popular name and ballot title. She cautioned that further review might reveal other ambiguities.

Source

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

Original opinion text

STATE OF AR KA NSAS
ATTORN EY GE N ERA L
LES LI E RU TLEDGE

Opinion No. 2017-093

September 6, 2017

Mary L. Berry, Sponsor
Arkansas True Grass BQC
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.

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 constitutional 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 proposed 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

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Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2017-093
Page2

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 honestl~, 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

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 by adults 18 years of age or older may not be prohibited under State law; recognizing that such activities remain unlawful under federal law; providing for the expungement of marijuana related conviction(s) from all criminal

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

Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2017-093
Page 3

records in the State; defining recreational marijuana containing more than 0.3% THC; permitting the cultivation, production, distribution, and sale of recreational marijuana by any business entity or person 18 years of age or older; providing that a business entity and anyone 18 years of age or older may cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a person 18 years of age or older, or business entity 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 with more than 12 growing marijuana plants is registered 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 18 years of age or older; providing that the recreational marijuana that is 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 affect [sic] the ability of employers or to have policies restricting the use of recreational marijuana by employees, (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 18 years of age, (d) does not permit anyone under 18 years of age to cultivate, produce, sell, purchase, transport, carry, 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.

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,

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

Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2017-093
Page4

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 disafcproved the use of terms that are "technical and not readily understood by voters." 0 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

5
See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see note 16 infra. 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
7
Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
8
Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
9
Id. at 9, 500 S.W.3d at 159.
10
Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
11
Id., 500 S.W.3d at 167.
12
Baileyv. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
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
Arkansas True Grass BQC
Opinion No. 2017-093
Page 5

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." 1 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

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 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).

20 Id.

Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2017-093
Page 6

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 1 of your proposal states that the amendment "may be cited as the 'Arkansas Recreational Marijuana Amendment,' 'The AROMA,' or [a]ny suitable popular name the Arkansas Attorney General may provide upon this Amendment's certification .... "

This list of alternative popular names is problematic in terms of your duties under Ark. Code Ann. § 7-9-107 as a sponsor, and my authority under the same statute to review proposals. Section 7-9-107(a) states that a sponsor must "submit the original draft [of the proposed amendment] to the Attorney General, with a proposed legislative or ballot title and popular name." My office will then either "reject the ... popular name" or "approve and certify or ... substitute and certify a more suitable and correct ... popular name." Id. at§ 7-9-107(b) (c).

As the proposal's sponsor, you are obligated to "submit ... a ... popular name" for my review. The disjunctive list of potential popular names in Section 1 of your proposal, one of which is completely open-ended ("any suitable popular name the Attorney General may provide"), does not satisfy this threshold under section 7-9- 107(a). Likewise, I am not authorized by section 7-9-107(b) to select a popular name on behalf of a sponsor. I can only "substitute and certify a more suitable and correct ... popular name" in response to the sponsor's choice of a popular name.

In effect, the list of alternative popular names in Section 1 of your proposed measure calls on me to draft a popular name. But a sponsor must submit a definite popular name for my office to consider. And Ark. Code Ann. § 7-9-107 limits my authority to approving the name submitted, rejecting the name submitted, or substituting a more suitable name for the name submitted. Thus, I must reject your proposal as written.

2. Section 2 of your proposal ("Effective date") states that "[o]n and after November 7, 2018, the acts to cultivate, produce, distribute, sell, purchase, transport,

Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2017-093
Page 7

carry, and use marijuana for recreational purposes shall be lawful . . . ."

There are a number of ambiguities in Section 2 that require clarification before I can certify a ballot title or substitute a more suitable title. On a grammatical level, I am unsure of "acts to cultivate, produce, distribute," etc., as a usage. Because "acts" is a noun, it is reasonable to expect the elements of a list starting with "acts" to be nouns as well. But what follow are verbs, in active infinitive form: "to cultivate, [to] produce, [to] distribute .. . ." This noun/verb construction is confusing. I cannot convert it into a ballot title that gives voters a fair understanding of what "acts" will become legal on your proposal's effective date.

There are also terms in the list of "acts" that are inherently ambiguous because they are undefined. First, "carry" is not defined. This word has a number of meanings in plain English. 21 Without a definition of "carry" for purposes of your proposal, I am unable to summarize it in a ballot title. Second, "recreational purposes" is also not defined. The lack of a definition for this term is crucial for the reasons just stated-"recreational" means a number of things in plain English. Moreover, "recreational purposes" appears to modify the entire list of acts that would become lawful should voters approve your proposal. And "recreational" or "recreational purposes" appear a number of times throughout the proposal, including in the definitions of terms like "Marijuana" and "Use recreational marijuana." See Section 3(d), (i). The acts and activities that your proposal would (and would not) legalize are of the utmost importance to voters, so they must be described adequately in the ballot title. Therefore, I must reject the proposal until these ambiguities are clarified.

3. Section 4 of your proposal states that "the following acts . . . regarding recreational marijuana and products produced therefrom shall not be an offense under Arkansas law .... " Section 4 then lists "The Act to Cultivate and Produce"; "The Act to Distribute, Sell and Purchase"; "The Act to Transport and Carry"; and "The Act to Use."

21
See, e.g., Merriam-Webster's Collegiate Dictionary, p. 175 (10th ed. 2001) (defining "carry" as "to move while supporting"; "to convey by direct communication"; "to influence by mental or emotional appeal"; etc.).

Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2017-093
Page 8

Please see my comments on Section 2 of your proposal, above, regarding the awkward noun/verb construction in the list of "acts," and the undefined terms "carry" and "recreational purposes." The need for clarification of these ambiguities applies with equal force to Section 4.

4. Section 4 of your proposal states that certain "acts by any business entity or person, eighteen (18) years of age or older, ... shall not be an offense under Arkansas law .... "

With respect to natural persons, it is apparent that your proposal would affect certain "acts" undertaken by those 18 years of age or older. But if a business wished to undertake the same acts, it is unclear if representatives of the business (e.g., owners, officers, members, employees, agents) must also be 18 years of age or older. I cannot summarize the age requirements for individuals affiliated with corporate applicants until this ambiguity is clarified.
5. Section 8 of your proposal ("Non-violent marijuana offenses and criminal record expungement") provides in subsection (a) that "marijuana related offenses convicted under state law shall be expunged from all criminal records in this state of all living persons who have served, or are currently serving, a sentence for being convicted of one or more of such offenses." Subsection (a) then lists six marijuana-related crimes.

First, the phrase "offenses convicted under state law" is awkward grammatically because an "offense" is not commonly thought of as "convicted"; the object of "to convict" is usually a person or a defendant.

Second, the phrase "of all living persons who have served, or are currently serving, a sentence" is ambiguous because it is not apparent what this clause modifies. For example, "of all living persons" can be read as the object of "shall be expunged." If it is, then references to "all living persons who have served" a sentence for a marijuana-related offense must be expunged from all criminal records in Arkansas. This is a far-reaching outcome that must be stated with more clarity (or eliminated as a possibility) before I can summarize Section 8(a) in a ballot title.

Third, the phrase "all living persons who have served, or are currently serving, a sentence for . . . one or more of such offenses" is ambiguous because it is

Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2017-093
Page 9

overbroad. Primarily, it is unclear if "all living persons" refers to persons residing outside of Arkansas who are serving, or who have served, a sentence resulting from a marijuana-related conviction.

Fourth, an ambiguity is created between the section's title ("Non-violent marijuana offenses and criminal record expungement") and the six offenses listed. The title implies that only "non-violent" offenses will be affected. But the offenses set out at Section 8(a)(l) - (6) could conceivably involve "violent" circumstances. This is problematic, especially since "non-violent" is not defined.

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.

Sincerely,

~l~L~?
Attorney General

Enclosure

22
Ark. Code Ann.§ 7-9-107(c).

(POPULAR NAME)
THE ARKANSAS RECREATIONAL MARIJUANA AMENDMENT

(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 BY ADULTS 18 YEARS OF AGE OR OLDER MAY NOT BE PROHIBITED UNDER STATE LAW; RECOGNIZING THAT SUCH ACTIVITIES REMAIN UNLAWFUL UNDER FEDERAL LAW; PROVIDING FOR THE EXPUNGEMENT OF MARIJUANA RELATED CONVICTION(S} FROM ALL CRIMINAL RECORDS IN THE STATE; DEFINING RECREATIONAL MARIJUANA CONTAINING MORE THAN 0.3% THC; PERMITTING THE CULTIVATION, PRODUCTION, DISTRIBUTION, AND SALE OF RECREATIONAL MARIJUANA BY ANY BUSINESS ENTITY OR PERSON 18 YEARS OF AGE OR OLDER; PROVIDING THAT A BUSINESS ENTITY AND ANYONE 18 YEARS OF AGE OR OLDER MAY CULTIVATE, PRODUCE, AND SELL MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR RECREATIONAL PURPOSES; PROVIDING THAT A PERSON 18 YEARS OF AGE OR OLDER, OR BUSINESS ENTITY 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 WITH MORE THAN 12 GROWING MARIJUANA PLANTS IS REGISTERED 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 18 YEARS OF AGE OR OLDER; PROVIDING THAT THE RECREATIONAL MARIJUANA THAT IS 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 AFFECT THE ABILITY OF EMPLOYERS OR TO HAVE POLICIES RESTRICTING THE USE OF RECREATIONAL MARIJUANA BY EMPLOYEES, (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 18 YEARS OF AGE, (D} DOES NOT PERMIT ANYONE UNDER 18 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL, PURCHASE, TRANSPORT, CARRY, 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.

Section I. The following is added as an amendment to the Arkansas Constitution:

§ 1. Short titles.
This is an amendment to the Arkansas Constitution that may be cited as "The Arkansas Recreational Marijuana Amendment", "The AROMA", or Any suitable popular name the Arkansas Attorney General may provide upon this Amendments certification of popular name and ballot title pursuant to Ark.Code Ann. §
7-9-107.
4")

§ 2. Effective Date.
On and after November 7th 2018, the acts to cultivate, produce, distribute, sell, purchase, transport, carry, and use marijuana for recreational purposes by any business entity or person eighteen (18) years of age or older shall be lawful in every geographical 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 Uniform Controlled Substances Act.

§ 3. Definitions.
The following terms are defined for the purposes of this amendment: (a) "Business entity" means any person or group of persons, eighteen (18) years of age or older, performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit. (b) "Cultivation location" means the physical address where marijuana is being grown for recreational purposes. (c) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (b.9THC) content of the operator's blood exceeds fourteen nanograms per milliliter (14ng/mL). (d) "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 (b.9THC), and is cultivated to be used as an intoxicant for recreational purposes. (e) "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. (f) "Mature marijuana plants" means recreational marijuana plants that are in the flowering stage and producing colas. (g) "Products produced from recreational marijuana", "products produced therefrom", or "products therefrom" means items and substances manufactured from recreational marijuana, containing more than three tenths of one percent (0.3%) delta-9-tetrahydrocannabinol (b.9THC) 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. (h) "Remuneration" means an act in which money is being paid to purchase recreational marijuana and or products produced therefrom for recreational purposes (i) "Use recreational marijuana and products produced therefrom" means to ingest, inhale, or otherwise introduce recreational marijuana into the human body.

§ 4. Lawful acts regarding recreational marijuana.
Notwithstanding any other provision of law, the following acts by any business entity or person, eighteen (18) 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) The Act to Cultivate and Produce May cultivate up to twenty-five (25) mature marijuana plants, and up to twenty-five (25) non mature marijuana plants, and produce products therefrom 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 that is;
A. owned by the business entity or person, or B. with consent of the owner(s) of the property.

2) The location where more than twelve (12) marijuana plants is being cultivated is placed on record with the county sheriff's office in the county in which the plants are being grown, provided that:
A. the cost to register a cultivation location may not exceed two-hundred and fifty dollars ($250.00) per year per person or business entity registered at a location, and B. not more than four persons or four business entities may be registered at the same location.
C. the number of cultivation locations registered per county shall not be limited.
3) The use of flammable solvents to extract delta-9-tetrahydrocannabinol (b.9THC) from the marijuana plant to produce recreational marijuana concentrates shall be prohibited in residential areas.
(b) The Act to Distribute, Sell, and Purchase
May distribute, sell, and purchase recreational marijuana and products produced therefrom provided that:
1) The buyer provides proof of age with any valid state identification card or any state driver's license prior to purchase, provided that;
A. A person who provides an out of state identification to purchase recreational marijuana shall be limited to the following purchases per day:
(i) up to one-half ounce (1/2 oz) of smokable or vaporizable recreational marijuana, and (ii) up to thirty-two ounces (32 oz) of edible or drinkable recreational marijuana.
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 §5 of this amendment.
(c) The Act to Transport and Carry
May transport recreational marijuana and products produced therefrom by motorized vehicle, watercraft, aircraft, and carry on one's personal effects on any Arkansas public highway, road, street, waterway, and any public place provided that:
1) Recreational marijuana and products produced therefrom must not be subject to public view during transport or while carrying on one's personal effects.
(d) The Act to Use
May use recreational marijuana and products produced therefrom wheresoever the consumption of alcohol is permitted, provided that:
1) The owner(s) of the property does not prohibit such use.

§ 5. Recreational marijuana product design and packaging.
(a) All edible and drinkable products produced from recreational marijuana that is sold by any business entity or person eighteen (18) 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 (A9 THC) per serving.
3) Shall be delineated or scored into standardized serving sizes if the product contains more than one serving and is in solid form.
4) Shall be homogenized to ensure uniform disbursement of delta-9-tetrahydrocannabinol (A9THC) throughout the product.
5) Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the potential effects of the product, and directions as to how to consume the product.

(b) All smokable and vaporizable products produced from recreational marijuana that is sold by any business entity or person eighteen (18) 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 (a9THC) 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 business entity or person eighteen (18) years of age or older by any business entity or person eighteen (18) years of age or older shall be exempt from the design, packaging, and labeling requirements of this section.

§6. Marijuana paraphernalia
Any business entity or person eighteen (18) years of age or older may manufacture, possess, and purchase marijuana paraphernalia, or may sell marijuana paraphernalia to another business entity or person who is eighteen (18) years of age or older, providing that such paraphernalia sold that contains recreational marijuana is designed, packaged, and labeled pursuant to §5 of this amendment.

§7. Employers, driving, minors, medical marijuana privileges:
(a) Nothing in this amendment is intended 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 eighteen (18). (d) Nothing in this amendment is intended to permit any person under the age of eighteen (18) to cultivate, produce, sell, purchase, transport, carry, 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 1other 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.

§8. Non-violent marijuana offenses and criminal record expungement. (a) The following marijuana related offenses convicted under state law shall be expunged from all criminal records in this state of all living persons who have served, or are currently serving a sentence for being convicted of one or more of such offenses:
1) possession of marijuana;
2) possession with the intent to manufacture and deliver marijuana;
3) manufacturing, distributing, and delivering marijuana;
4) distributing or delivering marijuana in proximity of certain facilities;
5) the unlawful use of a communication device as it pertains to the distribution of marijuana;
6) possession of marijuana paraphernalia.
(b) Nothing in this section permits the expungement of records for other offenses not provided in this 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.

(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.

§10. Penalties
The following offenses upon conviction is guilty of a violation, a penalty no greater than one-hundred and fifty dollars ($150) shall be imposed: (a) providing recreational marijuana to a person under the age of eighteen (18), with or without remuneration, and (b) cultivating, producing, distributing, selling, possessing or attempting to possess recreational marijuana while under the age of eighteen (18).

§11. Conflicting Laws.
The provisions of this Amendment are hereby declared to be severable, 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.