Can a homeless shelter or other nonprofit in Arkansas keep its zero-tolerance drug policy under the state's medical marijuana law?

Plain-English summary

Senator Bill Sample asked the AG two questions on behalf of Samaritan Ministries of Hot Springs, a nonprofit 501(c)(3) homeless shelter that owns its property and runs a zero-tolerance drug-and-alcohol policy. The questions:

1. Does Ark. Const. amend. 98, § 6 (the Arkansas Medical Marijuana Amendment of 2016) apply to SMHS and similar organizations?
2. Can SMHS and similar organizations administer a zero-tolerance drug policy and remain compliant with the medical marijuana laws?

The AG's answer to the first question, in general terms: yes, Amendment 98's relevant subsections apply to nonprofit organizations that are "in lawful possession of property." But the AG declined to opine on whether Amendment 98 specifically applied to SMHS or any other particular organization, because that turns on facts the AG does not act as a fact-finder to determine, and on legal advice to a private entity that the AG is barred from giving.

The AG also declined to answer the second question for the same reasons.

The opinion's substantive analysis is the reasoning that "establishment" in Amendment 98 § 6(b) reaches nonprofits. The amendment does not require an "individual or establishment in lawful possession of property" to allow visitors to use marijuana on the premises or to admit visitors inebriated from medical marijuana use. "Establishment" is undefined in the amendment. Looking to common-usage meaning ("a business organization, public institution, or household") and applying analogous case law, the AG concluded "business organization" includes nonprofits.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does Amendment 98 force a property owner to allow medical marijuana use on their property?
A: No. The amendment expressly does not require a person or "establishment" in lawful possession of property to permit on-premises use, and does not require admitting a visitor inebriated from medical marijuana use. The opinion identified this carve-out in § 6(b)(2) and (3) of the amendment.

Q: Why does the AG say "establishment" includes nonprofits?
A: Two threads. First, dictionary definition: "establishment" commonly means "a business organization, public institution, or household." Second, analogous case law: in William J. Clinton Presidential Found., the Arkansas Supreme Court held that a nonprofit corporation qualified as a "business enterprise" under the Enterprise Zone Act. The U.S. Supreme Court in Alamo Foundation similarly recognized that "[a]ctivities of eleemosynary, religious, or educational organization[s] may be performed for a business purpose." The AG inferred that "business organization" in the dictionary sense, used here in Amendment 98, would likewise reach nonprofits.

Q: So can a nonprofit shelter run a zero-tolerance policy on its property?
A: That is the practical implication, but the AG would not say so explicitly because it would be advice to a particular entity. Private counsel must address the specific legal questions any individual nonprofit faces.

Q: Why is the AG so careful to limit the answer?
A: Two statutory restrictions. First, the AG does not act as a fact-finder in opinions. Whether SMHS in fact "lawfully possesses" its property, what its specific facility looks like, and how its drug policy is administered are factual questions outside the scope. Second, Ark. Code Ann. § 25-16-701 prohibits the AG from engaging in the private practice of law. Giving binding advice to a specific private entity would cross that line.

Q: What about employment law? Can a nonprofit refuse to hire someone who uses medical marijuana?
A: The AG did not reach that question; the requestor framed it as guests/clients on the premises, not employees. Amendment 98 has separate provisions that bear on employment that were not analyzed in this opinion.

Background and statutory framework

The Arkansas Medical Marijuana Amendment of 2016, codified as Ark. Const. amend. 98, was approved by Arkansas voters as Issue 6 on the November 2016 ballot. Section 6 carries the title "Limitations on the Provisions of this Amendment." Subsections (b)(2) and (b)(3) relevantly provide that the amendment does not require:

An individual or establishment in lawful possession of property to allow a guest, client, customer, or other visitor to use marijuana on or in that property[, or] An individual or establishment in lawful possession of property to admit a guest, client, customer, or other visitor who is inebriated as a result of his or her medical use[d] of marijuana[.]

The textual key is the term "establishment." The amendment does not define it. The AG turned to New Oxford American Dictionary for the definition: "a business organization, public institution, or household." Then, applying the canon of construction noscitur a sociis (a word's meaning is clarified by its associates) from McKinney v. Robbins, 319 Ark. 596 (1995), and Weldon v. Sw. Bell Tel. Co., 271 Ark. 145 (1980), the AG noted that "establishment" sits next to "guest, client, customer, or other visitor," words consistent with a business organization.

For the proposition that "business organization" reaches nonprofit corporations, the AG cited Arkansas Dep't of Econ. Dev. v. William J. Clinton Presidential Foundation, 364 Ark. 40 (2005), where the Arkansas Supreme Court held a nonprofit qualified as a "business enterprise" under the Enterprise Zone Act, and Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), recognizing that nonprofit and religious organizations can engage in activities for a "business purpose."

The AG's refusal to opine on SMHS specifically rested on two policies: the long-standing rule against fact-finding in formal opinions, and Ark. Code Ann. § 25-16-701, which bars the AG from the private practice of law.

Citations

• Ark. Const. amend. 98, § 6(b)(2), (3) (the lawful-possession carve-outs)
• Ark. Code Ann. § 25-16-701 (no private practice of law by AG)
• K.N. v. State, 360 Ark. 579, 203 S.W.3d 103 (2005)
• Arkansas Tobacco Ctrl. Bd. v. Santa Fe Nat. Tobacco Co., 360 Ark. 32, 199 S.W.3d 656 (2004)
• Arkansas Dep't of Econ. Dev. v. William J. Clinton Presidential Found., 364 Ark. 40, 216 S.W.3d 119 (2005)
• Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290 (1985)
• McKinney v. Robbins, 319 Ark. 596, 892 S.W.2d 502 (1995)
• Weldon v. Sw. Bell Tel. Co., 271 Ark. 145, 607 S.W.2d 395 (1980)

Source

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

Original opinion text

Opinion No. 2019-033
July 31, 2019

The Honorable Bill Sample
State Senator
2340 North Hwy 7
Hot Springs, AR 71909

Dear Senator Sample:

This is in response to your request for my opinion concerning a nonprofit organization's compliance with the Arkansas Medical Marijuana Amendment of 2016.

As background for your questions, you have provided information regarding Samaritan Ministries of Hot Springs (SMHS), which you describe as a "non-profit [501(c)(3)] organization funded entirely by donations" that "provides services to homeless men." You say SMHS "has a zero-tolerance drug and alcohol policy for homeless men desiring to stay at their facility." You further state that SMHS "owns the facility they operate, so they are in lawful possession of their property." You then ask:

1. Would Ark. Const. Amend. 98, § 6 apply to SMHS and similar organizations?
2. Can SMHS and similar organizations administer a zero-tolerance drug policy and be compliant with medical marijuana laws?

RESPONSE

It is my opinion in response to your first question that the relevant subsections of Amendment 98 generally apply to nonprofit organizations that are "in lawful possession of property." However, I am unable to specifically opine on Amendment 98's applicability to SMHS or any other particular organization. Nor can I opine on your second question. Requests for advice in this regard must be directed to private counsel.

DISCUSSION

Question 1: Would Ark. Const. Amend. 98, § 6 apply to SMHS and similar organizations?

Based on the background facts you have provided, and your statement that SMHS is "in lawful possession of [its] property," it seems the answer to this question turns on section 6(b) of the Arkansas Medical Marijuana Amendment of 2016 ("Amendment 98"). That amendment "does not require .... [a]n individual or establishment in lawful possession of property to allow a guest, client, customer, or other visitor to use marijuana on or in that property." It likewise does not require "[a]n individual or establishment in lawful possession of property to admit a guest, client, customer, or other visitor who is inebriated as a result of his or her medical used [sic] of marijuana[.]"

These provisions of Amendment 98 apply to SMHS if it is in lawful possession of [its] property." The amendment does not define "establishment." But that term generally means "a business organization, public institution, or household[.]" Based on your description, SMHS plainly is not a public institution or household.

But under analogous case law, SMSH most likely qualifies as a business organization. In Arkansas Dep't of Econ. Dev. v. William J. Clinton Presidential Found., for instance, the Arkansas Supreme Court held that the William J. Clinton Presidential Foundation, an Arkansas nonprofit corporation, qualified as a "business enterprise" under the Arkansas Enterprise Zone Act of 1993. As the Court explained, that term clearly covered "various forms of business" including "nonprofit businesses."

Thus, if faced with a question like yours, I believe the Court would similarly conclude that the term "business organization" encompasses nonprofit as well as for-profit organizations.

Hence, the term "establishment" under section 6(b) of Amendment 98, as that term is generally defined, likely includes nonprofit organizations. This conclusion is likewise underscored by the fact that the term "establishment" appears alongside the words "guest, client, customer, or other visitor" under section 6(b). Each of these words reasonably applies to an "establishment," as that term is commonly understood.

It is, therefore, my opinion that section 6(b) of Amendment 98 generally applies to nonprofit organizations that are "in lawful possession of property." I cannot specifically opine, however, on Amendment 98's applicability to SMHS or any other particular private entity. I do not act as a factfinder in issuing official opinions, and I am prohibited from the private practice of law.

Question 2: Can SMHS and similar organizations administer a zero-tolerance drug policy and be compliant with medical marijuana laws?

For the reasons stated above, I am unable to opine on this question concerning the administration of drug policies by private entities. Requests for advice in this regard must be directed to private counsel.

Sincerely,

LESLIE RUTLEDGE
Attorney General