Why was the Arkansas Cannabis Adult Use and Regulation Amendment of 2020 ballot title rejected?

Plain-English summary

Attorney John W. Hall, Jr. submitted a popular name and ballot title for the "Arkansas Cannabis Adult Use and Regulation Amendment of 2020." The proposed amendment would have legalized adult (21+) recreational cannabis: up to four ounces in one's home, six mature plants and six seedlings personal cultivation, licensed commercial cultivation up to 150 plants, a Cannabis Commission to issue licenses, taxation with allocations to public schools (40%), road maintenance (20%), general fund (20%), and implementation/research (20%). The proposal also addressed driving impairment, sealed misdemeanor records, and released non-violent cannabis offenders.

The AG rejected the submission for two reasons. First, the ballot title did not tell voters that marijuana use, possession, and distribution remain illegal under preemptive federal law. Federal preemption is an essential fact under Bailey v. McCuen because it is something a voter would want to know before deciding. Approving a state amendment does not eliminate federal-law exposure for cannabis activities. Voters need that disclosure to make a "reasoned decision in the voting booth" (Lange v. Martin).

Second, the ballot title did not explain the relationship between this new recreational amendment and the existing Arkansas Medical Marijuana Amendment of 2016 (Amendment 98). The two would coexist in the constitution if both passed, but the proposed text did not address how recreational and medical regulatory frameworks would interact. Voters approving the recreational measure had to know whether existing medical-marijuana licensees, dispensaries, and patient privileges would continue, change, or be replaced. The ballot title's silence on that interaction was itself misleading by omission.

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.

How the federal-preemption disclosure rule works

Cannabis remains a Schedule I controlled substance under the federal Controlled Substances Act, 21 U.S.C. § 812. A state-law legalization amendment does not preempt federal law. State legalization removes state-law penalties; federal-law penalties continue. That is a basic federalism point, but it is not obvious to most voters.

Bailey v. McCuen established the "essential fact" rule for ballot titles: if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." Federal-law preemption is exactly that kind of fact. A voter could reasonably believe approving the amendment ends cannabis prosecution in Arkansas. Without the federal-law disclosure, the voter approves the amendment with that mistaken understanding.

Other Arkansas cannabis ballot titles in this cycle (e.g., the True Grass series 2017-122, 2017-127, 2017-135) included language to the effect of "recognizing that such activities remain prohibited under federal law." That phrasing typically clears the disclosure requirement. Hall's submission did not include any equivalent language.

How the 2016 Medical Marijuana interaction matters

Arkansas voters had passed the Medical Marijuana Amendment of 2016 (Amendment 98) the year before. Amendment 98 created a licensed-cultivator and licensed-dispensary system, provided patient and caregiver protections, established the Arkansas Medical Marijuana Commission, and set fee and tax structures.

A new recreational amendment would have to address several interaction points:

• Are existing Amendment 98 cultivator and dispensary licenses grandfathered into the recreational system?
• Do existing patient and caregiver privileges continue, or does the recreational framework absorb them?
• Does the new Cannabis Commission supersede the existing Medical Marijuana Commission, or do both operate?
• How are the tax structures coordinated?
• Does the recreational tax system apply to medical-marijuana sales, or only to recreational sales?

The proposed amendment's text might or might not have answered these questions. The ballot title did not. Roberts v. Priest established that ballot titles cannot be approved when the underlying text creates "a disconnect between the ballot title and the content of the proposed measure" or when material omissions create confusion. Voters had to know how the recreational framework would interact with the existing medical framework before voting; the AG concluded the ballot title's silence was a material omission.

Common questions

Could this submission have been fixed?
Yes. The federal-preemption flaw is curable by adding a clause acknowledging federal-law continuation, similar to language other cannabis amendments used. The medical-interaction flaw is curable by adding a clause describing the relationship: e.g., "preserving the existing rights of qualifying patients, caregivers, and licensed entities under the Arkansas Medical Marijuana Amendment of 2016." Both fixes are language additions to the ballot title; they may also require corresponding text in the underlying measure.

Did this measure ever make the ballot?
The "Arkansas Cannabis Adult Use and Regulation Amendment of 2020" did not advance to the 2020 ballot in this form. Adult-use cannabis amendments cycled through Arkansas's initiative process for years; Issue 4 (2022 Arkansas Recreational Marijuana Amendment) made the ballot but failed.

Is federal cannabis policy changing?
Federal scheduling and enforcement policy has shifted over time, but as of this opinion's date and the date of this enrichment, cannabis remained Schedule I federally. The AG's federal-preemption disclosure rule applies regardless of the current state of federal enforcement priorities.

Why was attorney drafting more careful than some pro se submissions?
Even attorney-drafted submissions can stumble on essential-fact disclosure rules. The AG's review applies the same standards regardless of who drafted the measure. Hall's submission was substantively cleaner than the True Grass or Danner submissions in this cycle, but it still failed two specific disclosure tests.

What does "preemptive federal law" mean exactly?
Under the Supremacy Clause of Article VI of the U.S. Constitution, federal law that is validly enacted overrides conflicting state law. State legalization of cannabis does not preempt federal prohibition because state law cannot preempt federal law in the other direction. So federal-law penalties continue to apply to cannabis activities even when state law authorizes them. Voters need that disclosure to understand what they are actually approving.

Background and statutory framework

Section 7-9-107 governs AG ballot-title certification. Bailey v. McCuen's essential-fact rule and Roberts v. Priest's text-title connection rule are the two major doctrinal hooks for ballot-title rejection on disclosure grounds.

The Arkansas Medical Marijuana Amendment of 2016 (Amendment 98) established Arkansas's licensed medical-cannabis system. Any new recreational amendment had to specify whether it preserved, modified, or superseded the medical framework. The AG's 2017-2018 cannabis ballot-review docket reflects multiple proponents' attempts to write that interaction language clearly enough for a ballot title.

Citations

• Ark. Code Ann. § 7-9-107 (popular name and ballot title certification)
• Ark. Const. amend. 98 (Arkansas Medical Marijuana Amendment of 2016)
• 21 U.S.C. § 812 (federal controlled substances scheduling)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential-fact disclosure rule)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154 (adequately inform voters)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (text-title disconnect)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (fair understanding standard)

Source

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

Original opinion text

Opinion No. 2017-126
December 13, 201 7
Mr. John W. Hall, Jr.
Attorney at Law
1202 Main Street, Suite 210
Little Rock, AR 72202-5057
Dear Mr. Hall:
STATE OF ARKANSAS
ATTORNEY GENERAL
LES LI E RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code
Ann. § 7-9-107 (Supp. 2017), of the popular name and ballot title for a proposed
initiated measure.
At the outset, I wish to make clear 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 a measure when making a decision to certify or reject.
Section 7-9-107 authorizes my office to 1) certify the popular name and ballot title
of a proposed measure, 2) substitute and certify the popular name and ballot title,
if practicable, or 3) reject the entire submission if the "nature of the issue[] is
presented in such manner that the ballot title would be misleading" to voters. 1 The
purpose of my review under section 7-9-107 is to ensure that the popular name and
ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed
amendment. 2 In this way, voters will have a fair understanding of the issues
presented by reference to the ballot title alone. 3
1 Ark. Code Ann.§ 7-9-107(c).
2 See Arkansas Women 's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848
(1984).
3 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEJ>HONE (501) 682-2007 ·FAX (50 1) 682-8084
ARKANSASAG.GOV Mr. John W. Hall Jr.
Attorney at Law
Opinion No. 2017-126
Page 2
It follows from my duty to reject misleading submissions that any ballot title
submitted for review should represent the sponsor's attempt to summarize his
proposed amendment or act in a non-misleading fashion. At the time they are
submitted to my office under section 7-9-107, the popular name and ballot title for
proposed constitutional amendments and acts "should be complete enough to
convey an intelligible idea of the scope and import of the proposal."4 And while I
am authorized to substitute and certify a ballot title that is more suitable (in terms
of affording voters a fair understanding of the issues presented), section 7-9-107
does not contemplate that I generate a ballot title when the ballot title submitted is
wholly deficient. Nor does the statute require that I modify the proposed measure
itself in order to then summarize the measure's text in a suitable ballot title.
Crafting the measure's text and accurately summarizing that text in a ballot title
are the sponsor's responsibility prior to submission.
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
Arkansas Cannabis Adult Use and Regulation Amendment of 2020
Ballot Title
A constitutional amendment
4 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotation omitted).
The Arkansas Supreme Court has explained that the ballot title must "adequately inform" voters
and enable a "reasoned decision in the voting booth." Lange v. Martin, 2016 Ark. 337, 500
S.W.3d 154, at n. 2. 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.
Bailey, 318 Ark. at 284, 884 S. W.2d at 944. The title must, however, be "free of any misleading
tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan
coloring." Id. at 293, 946-47. Fmihermore, a ballot title cannot be approved if the text of the
proposal creates a disconnect between the ballot title and the content of the proposed measure.
Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). Mr. John W. Hall Jr.
Attorney at Law
Opinion No. 2017-126
Page 3
To allow the sale of cannabis, marijuana, to persons 21 years of age
or older for personal or recreational use; the personal and
commercial cultivation, possession, and use of cannabis by persons
21 years of age or older; to permit the taxation of revenue derived
from commercial cannabis facilities; to permit the promulgation of
administrative rules and regulations for commercial sales and
production and personal possession and production; and to prescribe
certain penalties for violations of this amendment.
To allow adults (21 and over) possession of up to four ounces of
cannabis in one's own home for personal use as a state constitutional
right as long as those under 21 do not possess or have access to it.
To allow up to six mature plants and six seedlings (no higher or
wider than 12 inches) to be grown for personal use and to allow
licensed establishments to grow up to 150 mature plants (any size)
and 150 seedlings (no higher or wider than 12 inches), subject to
increase depending on market supply and demand.
To proscribe [sic] limits for driving under the influence of cannabis.
To establish a Cannabis Commission to develop and publish rules
and regulations for all cannabis businesses and to issue licenses to all
cannabis establishments and allow municipalities to act if the
Cannabis Commission does not.
To eradicate the illicit market in cannabis by regulating and taxing
recreational use.
To promote tourism.
To distribute all state sales tax for the sale of cannabis as follows:
40% for public education, grades pre-K-12; 20% for maintenance
and repairs to roads and bridges; 20% to the state general fund; and
20% for the implementation, administration, and enforcement of this
amendment, which shall provide $5 million annually, until 2023 or
for at least two years, to one or more clinical trials that are approved
by the United States Food and Drug Administration and sponsored
by a nonprofit organization, or researcher within an academic Mr. John W. Hall Jr.
Attorney at Law
Opinion No. 2017-126
Page4
institution, researching the efficacy of cannabis in treating medical
conditions.
To seal the records of all those convicted at any time of
misdemeanor possession of marijuana, if not already sealed, and
without fee.
To release those incarcerated in Arkansas prisons or jails, if any, for
cannabis charges of possession of 16 ounces or less or possession or
cultivation of six or less cannabis plants, and to seal their records.
RESPONSE
My statutory duty is to certify, substitute and certify, or reject the entire proposal.
And my office attempts in the usual course to identify problems in the text of a
proposed measure that prevent certification of a satisfactory ballot title. However,
there are several threshold shortcomings in your submission. I am unable, in light
of these deficiencies, to proceed with any further review of the submission.
As an initial matter, your proposed ballot title fails to acknowledge that marijuana
use, possession, and distribution remain illegal as a matter of preemptive federal
law.5 I believe this omission is significant.6
A more fundamental problem, however, arises from the ballot title's failure to
inform the voter about the interrelationship between your measure and the
Arkansas Medical Marijuana Amendment of 2016 ("AMMA").7 While your
proposed ballot title fails to summarize many other material effects of your
proposal, the shortcomings with respect to the AMMA are the most significant.
And in my opinion, your proposed title is fatally misleading as a consequence.
5 21 U.S.C. § 801 et seq. (Controlled Substances Act). See also Gonzales v. Raich, 545 U.S. 1
(2005).
6 Cf Cox v. Martin, 2012 Ark. 352, 423 S.W.3d 75 (declining to reject a medical-marijuana ballot
title on grounds that the proposed act would violate federal law where the first sentence of the
title stated: "AN ACT MAKING THE MEDICAL USE OF MARIJUANA LEGAL UNDER ARKANSAS STATE
LAW, BUT ACKNOWLEDGING THAT MARIJUANA USE, POSSESSION, AND DISTRIBUTION FOR ANY
PURPOSE REMAIN ILLEGAL UNDER FEDERAL LAW.").
7 Ark. Const. amend. 98 (Supp. 2017). Mr. John W. Hall Jr.
Attorney at Law
Opinion No. 2017-126
Page 5
The Arkansas Supreme Court has elaborated on the duty to describe the changes in
law a proposal is to make:
For the elector, in voting upon a constitutional amendment, is simply
making a choice between retention of the existing law and the
substitution of something new. It is the function of the ballot title to
provide information concerning the choice that he is called upon to
make. Hence the adequacy of the title is directly related to the
degree to which it enlightens the voter with reference to the changes
that he is given the opportunity of approving. 8
Without information regarding the extent to which your proposal would change
current law, it will be impossible for a voter to make an informed "choice between
retention of the existing law and the substitution of something new."9 The Court
has held that "a ballot title is not insufficient merely because it fails to reflect the
current state of the law. "10 But a ballot title will be deemed insufficient if it does
not give the voters a clear understanding of the "extent and import" of the
proposal, particularly when they are being asked to amend the constitution:
If the voter knows the extent and import of such a proposal, it is the
voter's decision, not ours, as to the wisdom of the proposal. But at
the same time the voters have placed on this court the duty and
responsibility to see that when they vote that change, or decline to
vote that change, especially one to alter their constitution, they are
allowed to make an intelligent choice, fully aware of the
f h · II consequences o t eir vote.
In my opinion, your ballot title fails entirely to give the voters any understanding
of how your proposed constitutional amendment regarding the "commercial
production and distribution of marijuana"12 relates to and changes the recently
8 Bradley v. Hall, 220 Ark. 925, 927, 251S.W.2d470, 471 (1952).
9 Id.
10 May v. Daniels, 359 Ark. 100, 116, 194 S.W.3d 771, 783 (2004).
11 Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982) (emphasis added).
12 Section 4(b ). Mr. John W. Hall Jr.
Attorney at Law
Opinion No. 2017-126
Page 6
approved AMMA, which addresses the medical use of marijuana. The
implications of your proposal in relation to the regulation of medical marijuana
under the AMMA appear to be both numerous and complex. It requires no
speculation to observe that your proposed amendment materially relates, both
directly and indirectly, to matters that are addressed in the AMMA. Indeed, there
are numerous references in your proposal to the AMMA, including the areas of
both rulemaking and licensing. 13 And your proposal is explicit in incorporating
the AMMA in certain respects. 14 Yet your proposed ballot title is silent regarding
your measure's impact on the AMMA. When tested by the established standards
governing the Court's review of ballot titles, your proposed title must be deemed
insufficient. 15
The precise manner in which you acknowledge your proposal's effects on existing
law is a matter for you to determine and submit to this office in draft form. While
I can modify a proposed ballot title to render it a more accurate summary of the
measure, I am not authorized to craft a ballot title that amounts to an independent
product.
Where a proposed ballot title does not comply with the rules governing the
initiative process, including the requirement to summarize the proposal and its
effects in a fair, accurate, and complete manner, this office may decline to prepare
a substitute ballot title. 16 In this instance, I must go a step further and note my
uncertainty whether the scope and import of your proposal can be conveyed to the
voter in a ballot title, given that current state law on medical marijuana is not yet
fully established. Understanding the AMMA is crucial to understanding how your
proposal would operate. But regulations under the AMMA are still in their initial
stages, and licenses have not yet been issued. It may therefore be impossible for
13 Section 6(c)(3), (t).
14 Id. at section 6(t) (regarding license applications).
15 Section 16 of your proposed amendment, entitled "Construction," does not clarify the
unce11ainty surrounding the effect of your measure on the AMMA. The statement that the
proposed amendment shall be construed "to be as consistent as possible with [the AMMA ]" is
simply a restatement of the general rule that "constitutional provisions and amendments thereto
must be harmonized where practical." Ward v. Kimball, 350 Ark. 345, 382, 86 S.W.3d 884, 898
(2002) (quoting Chesshir v. Copeland, 182 Ark. 425, 429, 32 S. W.2d 30 I ( 1930)).
16 See Op. Att'y Gen. 2012-033 (and opinions cited therein). Mr. John W. Hall Jr.
Attorney at Law
Opinion No. 2017-126
Page 7
your ballot title to identify changes to the existing law, because the medical-
marijuana law is itself evolving, and arguably lacks the stability necessary for a
newer amendment to incorporate it.
In sum, explaining the effect of your amendment on the AMMA, in my opinion,
will be critical to a sufficient ballot title for your measure. But summarizing
changes to a law that is itself changing would seem impossible. I believe the
Arkansas Supreme Court would have serious concerns about voters' ability to
fully understand and appreciate the issues presented in your proposed amendment.
As the Court has stated:
The voter should not have to be well versed in legal interpretation in
order to decipher what is meant in a proposed constitutional
amendment. Placing the voter in a position of either having to be an
expert in the [given] subject ... or having to guess as to the effect his
or her vote would have is impermissible. This is precisely the dire
straits in which the voter is placed by the uncertain language
contained in this measure.17
CONCLUSION
The Arkansas Constitution does not charge my office with any role in drafting
initiated constitutional amendments or acts. My duty in reviewing submissions
under section 7-9-107 is to the electorate as a whole. I cannot advise or advocate
for individual sponsors.18 Sponsors must make the necessary efforts to ensure that
their proposed measures, popular names, and ballot titles have been thoroughly
vetted for compliance with the high standards established by the Court prior to
their submission to my office.
Your submission falls short of the minimum criteria under section 7-9-107. While
the deficiencies noted above are not necessarily all of the issues preventing
17 Kurrus v. Priest, 342 Ark. 434, 444, 29 S.W.3d 669, 674 (citing Dust, supra note 11 ).
18 See Op. Att'y Gen. 2017-032 (citing Ark. Code Ann. § 25-16-701 (Supp. 2015) for the
proposition that the Attorney General is prohibited from engaging in the private practice of law). Mr. John W. Hall Jr.
Attorney at Law
Opinion No. 2017-126
Page 8
certification of a popular name and ballot title for your proposed measure, they are
sufficiently serious that I am unable to further review your submission. I must
reject your entire ballot title, popular name, and proposed measure.
Sincerely,
~~:::::>- ~· //~..,,
LESLIE RUTLEDGE
Attorney General
Enclosure Name of Initiative Amendment:
ARKANSAS CANNABIS ADULT USE AND REGULATION
AMENDMENT OF 2020
Ballot Title:
A constitutional amendment
To allow the sale of cannabis, marijuana, to persons 21 years of age or older for personal
or recreational use; the personal and commercial cultivation, possession, and use of cannabis by
persons 21 years of age or older; to permit the taxation of revenue derived from commercial
cannabis facilities; to permit the promulgation of administrative rules and regulations for
commercial sales and production and personal possession and production; and to prescribe
certain penalties for violations of this amendment.
To allow adults (21 and over) possession of up to four ounces of cannabis in one's own
home for personal use as a state constitutional right as long as those under 21 do not possess or
have access to it.
To allow up to six mature plants and six seedlings (no higher or wider than 12 inches) to
be grown for personal use and to allow licensed establishments to grow up to 150 mature plants
(any size) and 150 seedlings (no higher or wider than 12 inches), subject to increase depending
on market supply and demand.
To proscribe limits for driving under the influence of cannabis.
To establish a Cannabis Commission to develop and publish rules and regulations for all
cannabis businesses and to issue licenses to all cannabis establishments and allow municipalities
to act if the Cannabis Commission does not.
To eradicate the illicit market in cannabis by regulating and taxing recreational use.
To promote tourism.
To distribute all state sales tax for the sale of cannabis as follows: 40% for public
education, grades pre-K-12; 20% for maintenance and repairs to roads and bridges; 20% to the
state general fund; and 20% for the implementation, administration, and enforcement of this
amendment, which shall provide $5 million annually, until 2023 or for at least two years, to one
1 or more clinical trials that are approved by the United States Food and Drug Administration and
sponsored by a nonprofit organization, or researcher within an academic institution, researching
the efficacy of cannabis in treating medical conditions.
To seal the records of all those convicted at any time of misdemeanor possession of
marijuana, if not already sealed, and without fee.
To release those incarcerated in Arkansas prisons or jails, if any, for cannabis charges of
possession of 16 ounces or less or possession or cultivation of six or less cannabis plants, and to
seal their records.
Table of Contents:
Section 1. Title
Section 2. Purpose
Section 3. Definitions
Section 4. Creation of Cannabis Commission for licensing and regulation
Section 5. Rules and regulations of the Cannabis Commission and judicial review
Section 6. Licensing
Section 7. Acts permitted and not permitted by cannabis establishments, processors, and
transporters
Section 8. Laws not affected by this amendment
Section 9. Actions not unlawful under this amendment
Section 10. Local control of cannabis establishments
Section 11. Taxation of cannabis establishments
Section 12. Cannabis regulation fund
Section 13. Penalties
Section 14. Prior convictions for those in possession of 16 ounces or less
Section 15. Enforceability of contracts
Section 16. Construction
Section 17. Changes to this amendment
Section 18. Effective date
2 The people of the State of Arkansas enact:
Section 1. Title
This amendment shall be known and may be cited as the Arkansas Cannabis Adult Use
and Regulation Amendment of2020.
Section 2. Purpose
(a) The purpose of this amendment is to make possession and growth of cannabis,
marijuana, for person use by adults legal under state and local law, despite the statutory
prohibition in federal law because this amendment is implemented by the People of Arkansas
under the Tenth Amendment to the U.S. Constitution, and to control the commercial production
and distribution of cannabis under a system that licenses, regulates, and taxes the businesses
involved.
(b) The intent is to prevent arrest and criminal penalty for personal possession and
cultivation of cannabis by adults 21 years of age or older; to remove from the illicit market the
commercial production and distribution of cannabis; to prevent revenue generated from
commerce in cannabis from going to criminal enterprises or gangs; to prevent the distribution of
cannabis to persons under 21 years of age; to prevent the diversion of cannabis to illicit markets;
to ensure the safety of cannabis and cannabis-infused products; and to ensure the security of
cannabis establishments.
( c) The intent is to enable all Arkansas prisoners convicted of a crime of possession
of less than 16 ounces of cannabis or less than six cannabis plants, to be released from
incarceration, unpaid monetary penalty, or probationary monitoring, and sealing their record, and
to seal any records of those previously arrested, indicted, or convicted of less than 16 ounces of
cannabis possession or possession, growing, or manufacture of six cannabis plants.
(d) To the fullest extent possible, this amendment shall be interpreted in accordance
with the purpose and intent set forth in this section and consistent with Arkansas Constitution
Amendment 98, the Arkansas Medical Marijuana Amendment of2016.
Section 3. Definitions
(a) "Cultivate" means to propagate, breed, grow, harvest, dry, cure, or separate parts
3 of the cannabis plant by manual or mechanical means.
(b) "Cannabis Commission" means the commission of licensing and regulatory
affairs for adult use of cannabis. It is a different entity than the Arkansas Medical Marijuana
Commission.
(c) "Cannabis" means all parts of the plant of the genus cannabis, growing or not;
the seeds of the plant; the resin extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant, or its seeds or resin, including
cannabis concentrate and cannabis-infused products. For the purposes of this amendment,
cannabis does not include:
(1) the mature stalks of the plant; fiber produced from the stalks; oil or cake
made from the seeds of the plant; any other compound, manufacture, salt, derivative,
mixture, or preparation of the mature stalks, except the resin extracted from those stalks,
fiber, oil, or cake; or any sterilized seed of the plant that is incapable of germination;
industrial hemp; or
(2) any other ingredient combined with cannabis to prepare topical or oral
administrations, food, beverages, or other products.
(d) "Cannabis accessories" means any equipment, paraphernalia, product, material, or
combination of equipment, products, or materials that are specifically designed for use in
planting, propagating, cultivating, growing, harvesting, manufacturing, compounding;
converting, producing, processing, preparing, testing, analyzing, packaging, repackaging,
storing, containing, ingesting, inhaling, or otherwise introducing cannabis into the human body.
(e) "Cannabis concentrate" means the resin extracted from any part of the plant of the
genus cannabis.
(f) "Cannabis cultivation facility" means a person licensed to cultivate cannabis and
sell or otherwise transfer cannabis to cannabis dispensaries, cannabis processors, or cannabis
testing facilities.
(g) "Cannabis dispensary" means a person licensed to cultivate up to 150 mature
cannabis plants and 150 cannabis seedlings (no higher or wider than 12 inches), obtain cannabis
from cannabis establishments, and to sell or otherwise transfer cannabis to cannabis processors
or individuals who are 21 years of age or older.
(h) "Cannabis establishment" means a cannabis cultivation center, cannabis testing
4 facility, cannabis processor, cannabis dispensary, cannabis secure transporter, or any other type
of cannabis-related business licensed by the Commission.
(i) "Cannabis grower" means a cannabis cultivation facility or cannabis dispensary
that grows cannabis.
(j) "Cannabis-infused product" means a topical formulation, tincture, beverage,
edible substance, or similar product containing cannabis and other ingredients and that is
intended for human consumption.
(k) "Cannabis processor" means a person licensed to obtain cannabis from cannabis
establishments, process and package cannabis, and sell or otherwise transfer cannabis to
cannabis establishments.
([) "Cannabis secure transporter" means a person licensed to obtain cannabis from
cannabis establishments in order to transport cannabis to cannabis establishments.
(m) "Cannabis testing facility" means a person licensed to test cannabis, including
certification for potency and the presence of contaminants.
(n) "Licensee" means a person holding a state license.
(o) "Municipal license" means a license issued by a municipality pursuant to this
amendment that allows a person to operate a cannabis establishment in that municipality.
(p) "Municipality" means a city, township, or county.
(q) "Person" means an individual, corporation, limited liability company, partnership
of any type, trust, or other legal entity.
(r) "Process" or "processing" means to separate or otherwise prepare parts of the
cannabis plant and to compound, blend, extract, infuse, or otherwise make or prepare cannabis
concentrate or cannabis-infused products.
(s) "State license" means a license issued by the Cannabis Commission that allows a
person to operate a cannabis establishment.
(t) "Under the influence" means THCAl of 15 ng/ml or more. The state shall follow
same testing levels as required by the U.S. Department of Transportation of commercial vehicle
operators: An initial test must show THCAl of 50 ng/ml or more and mandatory confirmatory
test which must show THCAl of 15 ng/ml or more to be under the influence. If the USDOT
standard changes, state law may change to be the same for consistency, as the Cannabis
Commission chooses.
5 (u) "Unreasonably impracticable" means that the measures necessary to comply with
the rules or ordinances adopted pursuant to this amendment subject licensees to unreasonable
risk or require such a high investment of money, time, or any other resource or asset that a
reasonably prudent businessperson would not operate the cannabis establishment.
Section 4. Creation of Cannabis Commission for licensing and regulation
(a) Cannabis Commission established:
(1) A Cannabis Commission is established to draft specific rules for the
regulation of cannabis and cannabis products. Rulemaking is subject to the Arkansas
Administrative Procedure Act.
(2) The Commission shall meet no less than four times in any calendar year
after the effective date of this amendment. The 2020 initial organizational meeting shall
be no later than forty days after approval of this amendment by the voters.
(3) The Commission shall consist of seven members: two appointed by the
Speaker of the House, two appointed by the Senate President Pro Tempore, and three
appointed by the Governor. They should consult one another on appointments to achieve
the membership requirements: thus, there shall be appointed at least: one expert in the
legal cannabis business community, one attorney with experience in cannabis law and
policy, one economist, and two persons who represent cannabis consumers. A member of
the legislature or judiciary cannot be a member of the Commission because this is an
executive branch agency.
( 4) Members of the Commission shall serve three year terms and may be
reappointed. At the initial meeting of the Commission, they shall draw lots with four
drawing two year terms and three drawing three year terms. Their terms shall expire
December 31 even if appointed before December 31, 2020.
(5) Four members of the board present and voting shall constitute a quorum,
but any action of the Commission requires a majority of four votes.
( 6) The legislature shall approve a budget and appropriations for operation of
the Commission starting in the 2021 legislative session. The legislature will determine
and appropriate funds for staff and operations for the Commission. Members of the
Commission shall serve with compensation to be determined by the legislature. No state
6 or local employee may be on the Commission during the term of appointment.
(7) The Commission shall hold public hearings and gather written cooW1ents
to take testimony from experts and members of the general public on issues related to the
licensing, regulation, and taxation of cannabis.
(8) The Commission is subject to the Arkansas Freedom of Information Act
and the Arkansas Administrative Procedure Act except as otherwise limited below.
(b) The Commission is responsible for implementing this amendment and has the
powers and duties necessary to reasonably control the commercial production and distribution of
cannabis .. The Commission may contract with advisors and consultants as necessary to
adequately perform its duties. The Commission shall limit the number of cannabis dispensary
licenses and cannabis cultivation facility licenses to no less than one cannabis dispensary license
per 10,000 residents according to the last federal census and.no less than one cannabis
cultivation facility license per twenty cannabis dispensaries.
(c) Responsibilities of the Commission must include:
(1) Promulgating rules and regulations pursuant of this amendment that are
necessary to implement, administer, and enforce this amendment;
(2) Granting or denying each application for licensure and investigating each
applicant to determine eligibility for licensure, including conducting a background
investigation on each person holding an ownership interest in the applicant;
(3) Holding at least four,public meetings each calendar year for the purpose of
hearing complaints and receiving the views of the public with respect to administration of
this amendment;
(4) Submitting an annual report to the Governor and public by posting on its
or the state's website covering the previous year, which shall include the number of state
licenses of each class issued, demographic information on licensees, and a statement of
revenues and expenses of the Commission related to the implementation, administration,
and enforcement of this amendment.
(d) Cooperation of other agencies:
(1) Alcohol Beverage Control (ABC) shall be responsible for enforcement to
ensure compliance with this amendment and the rules promulgated thereunder by
cannabis establishments. ABC shall perform investigations of compliance and regular
7 inspections of cannabis establishments and by taking appropriate disciplinary action
against a licensee, including collecting civil penalties for violations of this amendment or
rules, and suspending, restricting, or revoking a state license; depositing all fees collected
in the cannabis regulation fund established by this amendment, and submitting an annual
report to the governor covering the previous year, which report shall include a
description of enforcement and disciplinary actions taken against licensees, and a
statement of revenues and expenses of ABC related to enforcement of this amendment.
(2) The Arkansas State Police shall cooperate and assist the Commission in
conducting reasonable background investigations of applicants if such investigations are
required by the Commission or ABC.
(e) Failure of Commission to timely license dispensaries:
(1) If the Commission does not timely promulgate rules or accept or process
applications in accordance with this amendment, beginning six months after the effective
date of this amendment [May 4, 2021], an applicant may submit an application for a
cannabis establishment directly to the chief executive's office of the municipality where
the cannabis establishment will be located.
(2) If a cannabis establishment submits an application to a municipality under
this section, the municipality shall issue a municipal license to the applicant within 60
days of receipt of the application unless the municipality finds and notifies the applicant
that the applicant is not in compliance with an ordinance or rule adopted pursuant to this
amendment.
(3) If a municipality issues a municipal license pursuant to this section:
(A) the municipality shall notify the Commission that the municipal
license has been issued;
(B) the municipal license has the same force and effect as a state
license; and
(C) the holder of the municipal license is not subject to regulation or
enforcement by the Commission during the municipal license term, but it is by
the local legislative body (council or quorum court or their delegatee) and the
local police agency with jurisdiction instead of ABC enforcement.
(4) A municipality cannot deny a license except as provided by local option in
8 Section 10.
Section 5. Rules and regulations of the Cannabis Commission
(a) The Commission shall promulgate reasonable rules to implement and administer
this amendment including:
(1) Procedures for issuing a state license pursuant to Section 6 of this
amendment and for renewing, suspending, and revoking a state license.
(2) A schedule of reasonable fees in amounts not more than necessary to pay
for implementation, administration, and enforcement costs of this amendment and that
relate to the size of each licensee or the volume of business conducted by the licensee.
(3) Qualifications for licensure that are directly and demonstrably related to
the operation of a cannabis establishment, provided that a prior conviction solely for a
cannabis-related offense does not disqualify an individual or otherwise affect eligibility
for licensure, unless the offense involved distribution of a controlled substance to a
minor.
(4) Requirements and standards for safe cultivation, processing, and
distribution of cannabis by cannabis establishments, including health standards to ensure
the safe preparation of cannabis-infused products and prohibitions on pesticides that are
not safe for use on cannabis.
(5) Testing, packaging, and labeling standards, procedures, and requirements
for cannabis, including a maximum tetrahydrocannabinol level for cannabis-infused
products, a requirement that a representative sample of cannabis be tested by a cannabis
testing facility, and a requirement that the amount of cannabis or cannabis concentrate
contained within a cannabis-infused product be specified on the product label.
(6) Security requirements, including lighting, physical security, and alarm
requirements, and requirements for securely transporting cannabis between cannabis
establishments, provided that such requirements do not prohibit cultivation of cannabis in
greenhouses.
(7) Record keeping requirements for cannabis establishments and monitoring
requirements to track the transfer of cannabis by licensees.
(8) Requirements for the operation of cannabis secure transporters to ensure
9 that all cannabis establishments are properly serviced.
(9) Reasonable restrictions on advertising, marketing, and display of cannabis
at cannabis establishments consistent with the First Amendment to the U.S. Constitution
and Art. 2, § 6 of the Arkansas Constitution.
(10) A plan to promote and encourage participation in the cannabis industry by
people from communities that have been disproportionately impacted by cannabis
prohibition and enforcement, and to positively impact those communities.
(11) Penalties for failure to comply with any rule promulgated pursuant to this
section or for any violation of this amendment by a licensee, including civil fines and
suspension, revocation, or restriction of a state license.
(b) In furtherance of the intent of this amendment, the Commission may promulgate
rules to provide for:
(1) The issuance of additional types or classes of state licenses to operate
cannabis-related businesses, including lice~ses that authorize only limited cultivation,
processing, transportation, delivery, storage, sale, or purchase of cannabis;
(2) Licenses that authorize the consumption of cannabis within designated
areas; licenses that authorize the consumption of cannabis at special events in limited
areas and for a limited time; licenses that authorize cultivation for purposes of
propagation; and licenses intended to facilitate scientific research or education.
(3) The increase of any cultivation license beyond 150 plants and seedlings
depending upon whether supply and demand for product reasonably justifies it after
notice and public hearing.
(c) Additionally, the Cannabis Commission may not promulgate a rule that:
(1) Establishes a limit on the number of any type of state licenses that may be
granted. The free market, however, shall otherwise control the number of licensees that
survive, but the General Assembly may limit the number oflocations to no greater extent
that establishments selling alcoholic beverages or beer or wine are limited.
(2) Requires a customer to provide a cannabis dispensary with identifying
information other than identification to determine the customer's age, or requires the
cannabis dispensary to acquire or record personal information about customers other than
information typically required in a retail transaction.
10 (3) Prohibits a cannabis establishment from operating at a shared location
with a medical marijuana facility operating pursuant to Arkansas Constitution
Amendment 98, the Arkansas Medical Marijuana Amendment of 2016, or prohibits a
cannabis cultivation facility, cannabis processor, or cannabis dispensary from operating
within a single facility.
( 4) Prohibits an out of state resident from buying cannabis.
(5) Prohibits checks or credit or debit cards from being used for cannabis
transactions.
(6) Is unreasonable or impracticable in operation.
Section 6. Licensing
(a) Each application for a state license must be submitted to the Cannabis
Commission. Upon receipt of a complete application and application fee, the Commission shall
forward a copy of the application to the municipality in which the cannabis establishment is to
be located, determine whether the applicant and the premises qualify for the state license and
comply with this amendment, and either issue the appropriate state license or send the applicant
a notice of rejection setting forth specific reasons why the Commission did not approve the state
license application within 90 days.
(b) The Cannabis Commission shall issue the following state license types: cannabis
dispensary; cannabis testing facility; cannabis secure transporter; cannabis processor; and
cannabis cultivation facility.
( c) Except as otherwise provided in this section, the Commission shall approve a
state license application and issue a state license if:
(1) The applicant has submitted an application in compliance with the rules
promulgated by the Commission, is in compliance with this amendment's rules, and has
paid the required fee;
(2) The municipality in which the proposed cannabis establishment will be
located does not notify the Commission that the proposed cannabis establishment is not
in compliance with an ordinance consistent with Section 10 of this amendment and in
effect at the time of application;
(3) The property where the proposed cannabis establishment, whether medical
11 or adult use, is to be located is not within an area zoned exclusively for residential use
and is not within 1,000 feet (front door to front door, not property lines) of a pre-existing
public or private school providing education in pre-kindergarten or any of grades K-12 or
a church, temple, synagogue, or other house of worship unless a municipality adopts an
ordinance that reduces this distance requirement;
(4) No person who holds an ownership interest in the cannabis establishment
applicant will hold an ownership interest in more than one cannabis cultivation facility or
in more than three cannabis dispensaries, and the other facilities can be medical
marijuana facilities.
( d) If a municipality limits the number of cannabis establishments that may be
licensed in the municipality pursuant to Section 10 of this amendment and that prevents the
Commission from issuing a state license to all applicants who meet the requirements of this
section, the Commission shall decide among competing applications by a competitive process
intended to select applicants who are best suited to operate in compliance with this amendment
within the municipality.
(e) All state licenses are effective for one year, unless the Commission issues the
state license for a longer term. A state license is renewed upon receipt of a complete renewal
application and a renewal fee from any cannabis establishment in good standing. Renewal must
not be arbitrarily denied or without due process.
(f) The Commission shall begin accepting applications for cannabis establishments
within 120 days after the effective date of this amendment. Except as otherwise provided in this
section, for 18 months after the Commission begins to receive applications for cannabis
establishments, the Commission may only accept applications for licensure: for a cannabis
cultivation facility or cannabis dispensary, from persons who are residents of Arkansas; for a
cannabis testing facility, cannabis processor, or a cannabis secure transporter, from persons
holding a state operating license; and pursuant to Arkansas Constitution Amendment 98, the
Arkansas Medical Marijuana Amendment of2016, from any applicant. One year after the
Cannabis Commission begins to accept applications pursuant to this section, the Commission
shall begin accepting applications from any applicant if the Commission determines that
additional state licenses are necessary to seek to minimize the illegal market for cannabis in this
state, to efficiently meet the public demand for cannabis, or to provide for reasonable access to
12 cannabis in rural areas.
(g) Applications under this Amendment are exempt from disclosure under the
Freedom of Information Act except for the name and address of the applicant and other
information the Comission determines should be disclosed in the public interest. The rest is
protected as a trade secret.
(h) Actions of the Cannabis Commission are subject to judicial review by an
aggrieved party with standing under the Arkansas Administrative Procedure Act.
Section 7. Acts permitted and not permitted by cannabis establishments, processors, and
transporters
behalf:
(a) A cannabis establishment, processor, or transporter, or person acting on their
(1) May not allow cultivation, processing, sale, or display of cannabis or
cannabis accessories to be visible from a public place outside of the cannabis
establishment without the use visual aids.
(2) May not cultivate, process, test, or store cannabis at any location other
than a physical address approved by the Commission and within an enclosed area that is
secured in a manner that prevents access by persons not permitted by the cannabis
establishment to access the area.
(3) Shall secure every entrance to the establishment so that access to areas
containing cannabis is restricted to employees and other persons permitted by the
cannabis establishment to access the area and to agents of the Commission, ABC, or state
and local law enforcement officers, and emergency personnel, and shall secure its
inventory and equipment during and after operating hours to deter and prevent theft of
cannabis and cannabis accessories.
(4) Is subject to inspection by Arkansas Beverage Control during the hours of
operation to inspect the licensed premises or to audit the books and records of the
cannabis establishment, provided that no audit of the cannabis establishment shall
interfere with the normal operation of the establishment.
(5) No cannabis establishment may sell or otherwise transfer cannabis that
was not produced, distributed, and taxed in compliance with this amendment.
13 (6) Minors:
(A) Person less than 21 years of age may not work for compensation or
as volunteers in the cannabis establishment. To knowingly do so or to permit it
may be designated a misdemeanor by the legislature.
(B) In a criminal prosecution or regulatory action, there is defense for
transfer, sale, or giving cannabis to an underage person if the person reasonably
believed and verified that the recipient appeared to be 21 years of age or older by
means of government issued photographic identification containing a date of
birth, and the person complied with any rules promulgated pursuant to this
amendment.
(7) No dispenser may sell, edible cannabis-infused candy in shapes or
packages that are intentionally attractive to children or that are easily confused with
commercially sold candy that does not contain cannabis~
(8) No dispenser may sell or otherwise transfer cannabis that is not contained
in an opaque, resealable, child-resistant package designed to be significantly difficult for
children under 5 years of age to open and not too difficult for normal adults to use
properly unless the cannabis is transferred for consumption on the premises where sold.
(9) No cannabis establishment may sell or otherwise transfer tobacco or
alcohol.
(10) Shall not cultivate more than the number of cannabis plants authorized by
the state license.
( 11) A cannabis secure transporter possessing, storing, or transporting
cannabis to or from a cannabis establishment and may receive compensation for services.
A licensed transporter and their workers working within his, her, or its license is exempt
from criminal prosecution.
(12) A cannabis testing, cultivation, or transportation facility can test, possess,
repackage, store, transfer, or transport cannabis to or from a cannabis establishment and
may receiving compensation for services.
(13) Leasing or otherwise allowing the use of property owned, occupied, or
managed for activities allowed under this amendment.
(14) May possessing, cultivating, processing, obtaining, transferring, or
14 transporting industrial hemp.
(b) Violations:
(1) The legislature may determine which violations of this amendment are
misdemeanors and which will be violations of ABC regulations. Because this amendment
establishes personal possession is a right, for a violation of this amendment to be a
misdemeanor, the legislature has to show justification subject to strict scrutiny judicial
review.
(2) Other criminal penalties not expressly or impliedly superseded by this
amendment remain in effect and are subject to change by the legislature.
Section 8. Laws not affected by this Amendment
(a) This amendment does not authorize:
( 1) Operating, navigating, or being in physical control of any motor vehicle,
aircraft, snowmobile, off-road recreational vehicle, or motor powered or sail boat while
under the influence of cannabis or consuming cannabis by smoking within the passenger
area of a vehicle upon a public way.
(2) Transfer of cannabis or cannabis accessories to a person under the age of
21, unless they have a cannabis patient license under Amendment 98.
(3) Any person under the age of 21 to possess, consume, purchase, or
otherwise obtain, cultivate, process, transport, or sell cannabis unless they have a
cannabis patient license or permit under Amendment 98.
(4) The separation of plant resin by butane extraction or another method that
utilizes a substance with a flashpoint below 100°F in any public place, motor vehicle, or
within the curtilage of any residential structure.
(5) Consuming cannabis in a public place or smoking cannabis where
prohibited by the person who owns, occupies, or manages the property.
(A) Except for purposes of this subdivision, a public place does not
include an area designated for consumption within a municipality that has
authorized consumption in designated areas that are not accessible to persons
under 21 years of age. It also does not include one's backyard if not exposed to
public view.
15 (B) A person has a reasonable expectation of privacy in his or her or
its backyard or other fenced in property for cultivating cannabis plants. Therefore,
this reasonable expectation of privacy is not defeated by the use of binoculars,
aircraft, heat-sensing devices, cameras, drones, other optical aids, ladders, looking
over fences from adjoining property, or otherwise from outside of an enclosed
area equipped with locks or other functioning security devices that restrict access
to the area.
(7) Possessing cannabis accessories, ·or possessing or consuming cannabis on
the grounds of a public or private school where children attend classes in pre-K through
12, in a school bus, or on the grounds of any correctional facility.
(8) Possessing more than 4 ounces of cannabis within a person's place of
residence, unless the excess cannabis in varying stages of growth or processing is stored
in an enclosed, locked container or place.
(b) This amendment does not prohibit or curtail any privileges, rights, immunities, or
defenses of a person as provided in Amendment 98 or any other law of this state allowing for or
regulating cannabis for medical use.
(c) This amendment does not require an employer to permit or accommodate conduct
otherwise allowed by this amendment in any workplace or on the employer's property. This is an
employer choice, even with medical marijuana under Amendment 98. This amendment does not
prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking adverse
employment action against a person with respect to hire, tenure, terms, conditions, or privileges
of employment because that person was working while under the influence of cannabis.
( d) This amendment allows a person to prohibit or otherwise regulate the
consumption, cultivation, distribution, processing, sale, or display of cannabis and cannabis
accessories on property the person owns, occupies, or manages, except that a lease agreement
may not prohibit a tenant from lawfully possessing and consuming cannabis by means other than
smoking. Thus, a landlord has complete authority to prohibit smoking cannabis in the rented or
leased property or on common areas of the property. This is the landlord's choice. Violation,
however, is only a violation of the lease and cannot be a criminal offense except that repeated
violations and refusals to comply may result in the offense of criminal trespass if the landlord's
documented requests are ignored by the tenant.
16 Section 9. Acts permitted under this Amendment
As a state constitutional right, a person 21 years of age or older is not subject to
prosecution, penalties, or forfeitures including revocation of probation or denial of any other
right or privilege for possession or use of cannabis:
(a) In a person's residence.
(1) Possessing, storing, and processing not more than 4 ounces of cannabis
and any cannabis produced by cannabis plants cultivated on the premises, and cultivating
not more than six mature cannabis plants for personal use, provided that no more than 12
cannabis plants (with six being seedlings not larger than 12 inches in width or height) are
possessed, cultivated, or processed on the premises at once.
(2) Possessing, using, consuming, internally possessing, purchasing,
transporting, or processing 4 ounces or less of cannabis, except that not more than twenty
grams of cannabis may be in the form of cannabis concentrate.
(3) Giving away or otherwise transferring without remuneration up to 2Yi
ounces of cannabis, except that not more than twenty grams of cannabis may be in the
form of cannabis concentrate, to a person 21 years of age or older, as long as the transfer
is not advertised or promoted to the public.
( 4) Assisting or aiding another person who is 21 years of age or older in any
of the acts described in this section.
(5) Possession in the home where minors are present is lawful if the minors
are not exposed to cannabis or second-hand smoke from cannabis nor otherwise directly
or indirectly exposed to cannabis.
(6) This section is subject to limits in§ 9.
(b) On the person or in a vehicle:
(1) Possession of up to 4 grams is not a criminal offense as long as it is not
visible to others.
(2) For possession of more than 4 grams, it is a complete defense under this
section that the person acquired the cannabis from a licensed dispensary within the
previous 24 hours as shown by a sales receipt and is transporting it home.
( c) Cannabis accessories: The use, manufacture, possession, and purchase of
cannabis accessories by a person 21 years of age or older, and the distribution or sale of cannabis
17 accessories to a person 21 years of age or older, is authorized; not unlawful; not an offense; not
grounds for seizing or forfeiting property; not grounds for arrest, prosecution, or penalty in any
manner, including conditions of or revocation of probation or parole, including the offense of
simultaneous possession of firearms and drugs (as already provided by Arkansas law); and not
grounds to deny any other right or privilege.
(d) Custody or visitation: A person shall not be denied custody of or visitation with a
minor or incapacitated adult based solely on conduct that is permitted by this amendment,
though custody may be denied if the person's behavior is such that it creates a clear and present
or unreasonable danger to the minor or incapacitated adult that can be clearly articulated and
substantiated by clear and convincing evidence. The determination that a person creates a clear
and present or unreasonable danger must be made only during a judicial hearing and cannot
solely be made by the Department of Human Services or any other agency. Therefore, the
agency must petition a court for such a determination. It is the obligation of the agency to make
the record for review, and nothing will be presumed. Appellate review is also de novo. A person
engaging in lawful acts under this amendment, by those acts alone, shall not be subject to claims
of child abuse or neglect, or be the subject of confidential child abuse or neglect or parental
unfitness reports or the child maltreatment registry made by the Department of Human Services
or any other state or local agency.
( e) Other acts:
(1) Possessing, cultivating, processing, obtaining, transferring, or transporting
industrial hemp shall not be prohibited.
(2) Providing professional services to prospective or licensed cannabis
establishments related to activity under this amendment by lawyers, accountants, medical
personnel, state or national banks, credit unions, cannabis experts, investment advisors,
or any other profession is lawful and no state regulatory body may prohibit or limit it.
Section 10. Local control of cannabis establishments
(a) Except as otherwise provided, a municipality may completely prohibit or limit the
number of cannabis establishments within its boundaries but only by a popular vote of the people
in a local option ,election as follows:
(1) By petition. Individuals may petition to initiate an ordinance to provide
18 for the number of cannabis establishments allowed within a municipality or county or to
completely prohibit cannabis establishments within a municipality or county. Such
ordinance shall be submitted to the electors of the municipality or county at the next
regular biennial election when a petition is signed by qualified electors in the
municipality in a number greater than 38% of the votes cast for chief executive by
qualified electors in the municipality at the last preceding general election and in counties
38% of the votes case for circuit clerk in the last general election. (38% is the current
percentage required by statute for an alcohol local option election. If that changes by the
General Assembly, the percentage for cannabis local option be the same as for alcohol
local option. That change must occur no less than one year before an election.)
(2) Local ordinance. The municipality's governing body, city council, or
quorum court may propose an ordinance and such ordinance shall be submitted to the
electors of the municipality at the next regular election. The proposed ordinance shall
have no effect to amend this amendment or subsequent regulations regarding this
amendment until the proposed ordinance is passed by popular vote.
(3) Adoptfon of ordinance. Any license granted before a biennial vote limiting
a cannabis establishment shall continue for seven years for the licensee to recoup its
investment.
(b) A municipality may adopt other ordinances that are not unreasonably
impracticable and do not conflict with this amendment or with any rule promulgated pursuant to
this amendment that:
(1) Establish reasonable restrictions on public signs, related to cannabis
establishments.
(2) Reasonably regulate the time, place, and manner of operation of cannabis
establishments and of the production, manufacture, sale, or display of cannabis
accessories; however, mandated hours cannot be less than 12 hours a day and Sunday and
holiday sales cannot be prohibited. Days and hours of operation are the business's choice.
(3) Authorize the sale of cannabis for consumption in designated areas that
are not accessible to persons under 21 years of age, or at special events in limited areas
and for a limited time.
(4) Designate a violation of the ordinance and provide for a civil penalty for
19 that violation by a cannabis establishment, provided that such violation is a civil
infraction and such civil penalty is not more than $500.
(c) A municipality may adopt an ordinance requiring a cannabis establishment
located within the municipality to obtain a municipal or county license, but may not impose
qualifications for licensure that conflict with this amendment or rules promulgated by the
Cannabis Commission and the license fee must be reasonable as for other sales establishments.
( d) License fees:
( 1) If a municipality licenses a cannabis establishment, it may charge an
annual license fee no more than twice that of a liquor store to defray application,
administrative, and enforcement costs associated with the licensed operation of the
cannabis establishment in the municipality.
(2) Otherwise, the license fee can be no more than that charged a liquor store.
(e) The state, county, or a municipality may not adopt any law or ordinance that
restricts the transportation of cannabis from a cannabis grower, to a cannabis processor, to a
cannabis testing facility, to a cannabis dispensary, to a customer to possess, or to a customer's
home.
(t) The state, county, or a municipality may not adopt any law or ordinance that
prohibits a cannabis grower, a cannabis processor, a cannabis testing facility, or a cannabis
dispensary from operating within a medical marijuana dispensary authorized to operate under
Amendment 98.
Section 11. Taxation of cannabis establishments
(a) In computing net income taxes for cannabis establishments, deductions from state
taxes are allowed for all the ordinary and necessary expenses paid or incurred during the taxable
year in carrying out a trade or business.
(b) Sales taxes shall be imposed at every level from grow to dispensary sale.
( c) For dispensary sales, in addition to standard retail sales taxes:
(1) a state excise tax is imposed at a rate not to exceed 8% of the sales price in
addition to the state sales tax; and
(2) a local cannabis sales tax not to exceed 3% of the sale price for total
county and city sales tax, but a local tax to promote tourism may be added up to 2% more
20 if the locality already imposes a tourism tax on food establishments, hotels, or other
services.
(c) No additional excise or sales tax shall be imposed on medical marijuana under
Amendment 98.
( d) Except as otherwise provided by a rule promulgated by the Department of
Finance and Administration, a product subject to the tax under by this section may not be
bundled in a single transaction with a product or service that is not subject to the tax imposed by
this section to avoid taxes.
( e) The Department of Finance and Administration shall administer the taxes
imposed under this amendment and may promulgate rules that prescribe a method and manner
for payment of the tax to ensure proper tax collection.
Section 12. Cannabis regulation fund
(a) The cannabis regulation fund is created in the Department of Finance and
Administration. The Department of Finance and Administration shall deposit all money
collected under Section 11 of this amendment and the Commission and the ABC shall deposit all
fees and fines collected in the fund. The state treasurer shall direct the investment of the fund
and shall credit the fund interest and earnings from fund investments. The Commission shall
administer the fund for auditing purposes. Money in the fund shall not lapse to the General Fund.
(b) Funds for the initial activities of the Commission to implement this amendment
shall be appropriated from the general fund. The Commission shall repay any amount
appropriated under this subsection from proceeds in the fund.
( c) The Treasurer shall allocate state money collected under this Amendment as
follows:
(1) 40% to the school aid fund to be used for pre-K through 12 public school
education;
(2) 20% to the Arkansas transportation fund to be used for the repair and
maintenance of state and local roads and bridges;
(3) 20% to the state General Fund;
(4) 20% for the implementation, administration, and enforcement of this
amendment which shall provide $5 million annually, until 2023 or for at least two years,
21 to one or more clinical trials that are approved by the United States Food and Drug
Administration and sponsored by a nonprofit organization, or researcher within an
academic institution, researching the efficacy of cannabis in treating medical conditions;
should the 20% be insufficient, legislators may increase amount to be taken from the
general fund.
(d) County and city sales taxes should be disbursed to their respective General Fund
or the tourism tax fund, as the case may be.
Section 13. Penalties
A person who commits any of the following acts, not otherwise authorized by this
amendment to conduct such activities, may be punished only as provided in this section and is
not subject to any other form of punishment or disqualification, unless the person consents to
another disposition authorized by law:
(a) Unlicensed delivery, with or without consideration:
( 1) of 4 grams or less to a person under 18 is a class B misdemeanor
(2) of 4 grams or less to a person 18-20 is a violation and not a crime subject
to a civil penalty of up to $1,000 . .
(3) 4 grams to 1 ounce is a class A misdemeanor.
(4) Otherwise, the criminal law controls. Moreover, the legislature may lessen
these penalties, but it cannot increase them.
(b) Possession by a person or an unlicensed cannabis or establishment of more than 4
ounces but less than 16 ounces in one's home or cultivation of more than 6 but not more than 12
plants in the home or on the curtilage is guilty of only a violation, and it is punishable only by a
civil penalty of up to $1,000. Otherwise, the criminal law controls.
Section 14. Prior convictions for those in possession of 16 ounces or less
(a) Any person convicted of possession or possession with intent or a purpose of 16
ounces or less of cannabis or cultivation or manufacture with 6 or less plants prior to the
effective date of this Amendment is entitled to have his or her conviction expunged on
application to the court of conviction merely citing this amendment.
(b) It does not matter whether fines and costs have been paid or how many prior
22 convictions they have had, misdemeanor or felony, but fines and costs already paid are not
subject to refund.
(c) Any person in prison or jail or on probation or parole shall be released from
custody or supervision on the effective date of this Amendment or have that sentence voided and
the balance of his or her term recalculated.
(d) No filing fee shall required.
(e) The conviction will be sealed on the person's application on an ACIC form.
(f) If the record is ever visible to some state agency or police agencies, it will state
"Sealed under Amendment _" [whichever number this amendment is assigned by the Secretary
of State].
Section 15. Enforceability of contracts
It is the public policy of this state that contracts for licensed activity for products, goods,
services, and rental or purchase of real or personal property are fully enforceable in the courts of
Arkansas. Likewise, employer and landlord choice is enforceable and shall be recognized by the
courts or state agencies.
Section 16. Construction
(a) This amendment shall be broadly construed to accomplish its intent as stated in
Section 2 of this amendment and to be as consistent as possible with Arkansas Constitution
Amendment 98, the Arkansas Medical Marijuana Amendment of2016.
(b) All other laws inconsistent with this amendment do not apply to conduct that is
permitted by this amendment.
(c) Nothing in this amendment purports to supersede any applicable federal law.
(d) All provisions of this amendment are self-executing.
( e) Any section of this amendment that is found invalid as to any person or
circumstances shall not affect the application of any other section of this amendment that can be
given full effect without the invalid section or application.
Section 17. Changes to this amendment
(a) Changes to this amendment may be made by a supermajority three-fourths vote of
23 the Legislature, except as provided in subjection (b ), but any changes to this amendment must
further the purposes of this amendment and not restrict it.
(b) The following may not be repealed or changed:
(1) This amendment shall not be repealed.
(2) The implementation of this amendment shall not be delayed.
(3) The number of dispensaries or cultivation facilities shall not be reduced.
(4) The release of those individuals incarcerated ,in Arkansas prisons for
cannabis possession shall not be repealed.
(5) The right for individuals to grow their own cannabis shall not be repealed,
nor the number of plants allowed reduced.
( 6) The allowable number of cannabis plants grown by dispensaries shall not
be reduced.
Section 18. Effective date
This chapter shall take effect the day after approval by the voters without regard to when
the Secretary of State certifies the vote total.
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