What Is Arkansans For Compassionate Care?

INITIATIVE PETITON

To the Honorable Mark Martin, Secretary of the State of Arkansas: We, the undersigned legal voters of the State of Arkansas, respectfully propose the following Initiated Act, to wit:

 

(POPULAR NAME)

THE ARKANSAS MEDICAL MARIJUANA ACT

(BALLOT TITLE)

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; ESTABLISHING A SYSTEM FOR THE CULTIVATION, ACQUISITION AND DISTRIBUTION OF MARIJUANA FOR QUALIFYING PATIENTS THROUGH NONPROFIT MEDICAL MARIJUANA DISPENSARIES AND GRANTING THOSE NONPROFIT DISPENSARIES LIMITED IMMUNITY; ALLOWING LOCALITIES TO LIMIT THE NUMBER OF NONPROFIT DISPENSARIES AND TO ENACT REASONABLE ZONING REGULATIONS GOVERNING THEIR OPERATIONS; PROVIDING THAT QUALIFYING PATIENTS, THEIR DESIGNATED CAREGIVERS AND NONPROFIT DISPENSARY AGENTS SHALL NOT BE SUBJECT TO CRIMINAL OR CIVIL PENALTIES OR OTHER FORMS OF DISCRIMINATION FOR ENGAGING IN OR ASSISTING WITH THE PATIENTS’ MEDICAL USE OF MARIJUANA; AUTHORIZING LIMITED CULTIVATION OF MARIJUANA BY QUALIFYING PATIENTS OR DESIGNATED CAREGIVERS IF A QUALIFYING PATIENT LIVES MORE THAN FIVE MILES FROM THE NEAREST NONPROFIT DISPENSARY; AUTHORIZING COMPENSATION FOR DESIGNATED CAREGIVERS; REQUIRING THAT IN ORDER TO BECOME A QUALIFYING PATIENT, A PERSON SUBMIT TO THE STATE A WRITTEN CERTIFICATION FROM A PHYSICIAN THAT HE OR SHE IS SUFFERING FROM A QUALIFYING MEDICAL CONDITION; ESTABLISHING AN INITIAL LIST OF QUALIFYING MEDICAL CONDITIONS; DIRECTING THE DEPARTMENT OF HEALTH TO ESTABLISH RULES RELATED TO THE PROCESSING OF APPLICATIONS FOR REGISTRY IDENTIFICATION CARDS, THE OPERATIONS OF NONPROFIT DISPENSARIES, AND THE ADDITION OF QUALIFYING MEDICAL CONDITIONS IF SUCH ADDITIONS WILL ENABLE PATIENTS TO DERIVE THERAPEUTIC BENEFIT FROM THE MEDICAL USE OF MARIJUANA; SETTING MAXIMUM REGISTRATION FEES FOR NONPROFIT DISPENSARIES; ESTABLISHING QUALIFICATIONS FOR REGISTRY IDENTIFICATION CARDS; ESTABLISHING STANDARDS TO ENSURE THAT QUALIFYING PATIENT AND DESIGNATED CAREGIVER REGISTRATION INFORMATION IS TREATED AS CONFIDENTIAL; DIRECTING THE DEPARTMENT OF HEALTH TO PROVIDE THE LEGISLATURE ANNUAL QUANTITATIVE REPORTS ABOUT THE MEDICAL MARIJUANA PROGRAM; SETTING CERTAIN LIMITATIONS ON THE USE OF MEDICAL MARIJUANA BY QUALIFYING PATIENTS; ESTABLISHING AN AFFIRMATIVE DEFENSE FOR THE MEDICAL USE OF MARIJUANA; ESTABLISHING REGISTRATION AND OPERATION REQUIREMENTS FOR NONPROFIT DISPENSARIES; SETTING LIMITS ON THE AMOUNT OF MARIJUANA A NONPROFIT DISPENSARY MAY CULTIVATE AND THE AMOUNT OF MARIJUANA A NONPROFIT DISPENSARY MAY DISPENSE TO A QUALIFYING PATIENT; PROHIBITING CERTAIN CONDUCT BY AND IMPOSING CERTAIN CONDITIONS AND REQUIREMENTS ON PHYSICIANS, NONPROFIT DISPENSARIES, NONPROFIT DISPENSARY AGENTS, QUALIFYING PATIENTS, AND DESIGNATED CAREGIVERS; ESTABLISHING A LIST OF FELONY OFFENSES WHICH PRECLUDE CERTAIN TYPES OF PARTICIPATION IN THE MEDICAL MARIJUANA PROGRAM; AND ALLOWING VISITING QUALIFYING PATIENTS SUFFERING FROM QUALIFYING MEDICAL CONDITIONS TO UTILIZE THE ARKANSAS MEDICAL MARIJUANA PROGRAM.

“An Act to Establish the Arkansas Medical Marijuana Act”.

Be it enacted by the People of the State of Arkansas as follows:

Amending Title 20, Arkansas Code, by adding new Subtitle 6, Chapter 91, Medical Marijuana

Section 101. Short title. This chapter shall be known and cited as “The Arkansas Medical Marijuana Act.”

Section 102. Definitions. As used in this chapter, unless the context otherwise requires:

(a) “Acquire” or “Acquisition” means coming to possess marijuana by means of any legal source herein authorized, and not from any unauthorized source; marijuana so Acquired must be grown in accordance with this act and any regulations promulgated by The Department.

(b) “Assist,” or “Assisting” mean helping a Qualifying Patient make Medical Use of marijuana by physically enabling such Medical Use by any means herein authorized.

(c) “Cardholder” means a Qualifying Patient, a Designated Caregiver or a Nonprofit Dispensary Agent.

(d) “Qualifying Medical Condition” means one or more of the following:

(i) Cancer, Glaucoma, positive status for Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (HIV/AIDS), Hepatitis C, Amyotrophic Lateral Sclerosis, Tourette’s Disease, Crohn’s Disease, ulcerative colitis, Post Traumatic Stress Disorder (PTSD), Fibromyalgia, agitation of Alzheimer’s Disease or the treatment of these conditions;

(ii) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or Wasting Syndrome; peripheral neuropathy; intractable pain, which is pain that has not responded to ordinary medications, treatment or surgical measures for more than 6 months; severe nausea; seizures, including those characteristic of Epilepsy; or severe and persistent muscle spasms, including those characteristic of Multiple Sclerosis;

(iii) Any other medical condition or its treatment approved by The Department as provided for in section 104(e).

(e) “The Department” means the Arkansas Department of Health or its successor.

(f) “Enclosed, Locked Facility” means a closet, room, greenhouse or other enclosed area equipped with locks or other security devices that permit access only by a Cardholder.

(g) “Excluded Felony Offense” means:

(i) A felony violent crime or felony crime against a person in the jurisdiction where the person was convicted, provided, an offense which has been expunged by a court or was unadjudicated and the conditions satisfied and the offender released from conditions shall not be considered and Excluded Felony Offense; or

(ii) A violation of a state or federal controlled substance law that was classified as a felony in the jurisdiction where the person was convicted but does not include:

(A) An offense for which the sentence, including any term of probation, incarceration or supervised release, was completed ten or more years earlier,

(B) An offense which has been expunged by a court or was unadjudicated and the conditions satisfied and the offender released from conditions; or

(C) An offense involving conduct that would be immune from arrest, prosecution or penalty under this chapter except that the conduct occurred before the effective date of this chapter or was prosecuted by an authority other than the State of Arkansas.

(h) “Medical Use” means the Acquisition, possession, cultivation, preparation, manufacture, use, delivery, transfer or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a Qualifying Patient’s Qualifying Medical Condition or symptoms associated with the Qualifying Patient’s Qualifying Medical Condition.

(i) “Nonprofit Dispensary” means a not-for-profit entity, that has registered with The Department pursuant to section 108, and performs any combination of the activities therein described.

(j) “Nonprofit Dispensary Agent” means:

(i) An employee, supervisor, volunteer, or agent of a Nonprofit Dispensary who:

(A) Is 21 years of age or older;

(B) Works at the Nonprofit Dispensary; and

(C) Has registered with The Department pursuant to section 108; or

(ii) The owner of a Nonprofit Dispensary who has registered with The Department pursuant to section 108; or

(iii) the board members and officers of a Nonprofit Dispensary if the Nonprofit Dispensary has exercised its discretionary right to incorporate pursuant to section 109(b)(i).

(k) “Physician” means a doctor of medicine who holds a valid and existing license to practice medicine pursuant to Title 17, Chapter 95 or its successor; or a doctor of osteopathic medicine who holds a valid and existing license pursuant to Title 17, Chapter 91 or its successor; except that in relation to a Visiting Qualifying Patient, ‘Physician’ means an individual licensed to prescribe drugs to humans in the state of the patient’s residence and who possesses certification from the United States Drug Enforcement Administration to prescribe controlled substances.

(l) “Designated Caregiver” means a person who is at least 21 years of age who has agreed to Assist with a Qualifying Patient’s Medical Use of marijuana, including acquiring marijuana from a Nonprofit Dispensary and delivering it to the Qualifying Patient, who has never been convicted of an Excluded Felony Offense, and who has registered with The Department pursuant to Section 105(d). A Designated Caregiver may serve as a Designated Caregiver for no more than five Qualifying Patients at a time.

(m) “Qualifying Patient” means a person who has been diagnosed by a Physician as having a Qualifying Medical Condition, and who has registered with The Department pursuant to 105(a).

(n) “Registry Identification Card” means a document issued by The Department that identifies a person as a Qualifying Patient, Designated Caregiver or a Nonprofit Dispensary Agent.

(o) “Usable Marijuana” means the dried leaves and flowers of the marijuana plant and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant and does not include the weight of any ingredients other than marijuana that are combined with marijuana and prepared for consumption as food or drink.

(p) “Visiting Qualifying Patient” means a patient with a Qualifying Medical Condition who is not a resident of Arkansas or who has been a resident of Arkansas for less than 30 days, and who is in actual possession of a Registry Identification Card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth or insular possession of the United States, and pertains to a Qualifying Medical Condition under this section.

(q) “Written Certification” means a document signed by a physician stating that in the physician’s professional opinion, after having completed a full assessment of the Qualifying Patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the Qualifying Patient has a Qualifying Medical Condition and the potential benefits of the Medical Use of marijuana would likely outweigh the health risks for the Qualifying Patient. A written certification shall specify the Qualifying Patient’s Qualifying Medical Condition, which also shall be noted in the Qualifying Patient’s medical records.

Section 103. Protections for the Medical Use of marijuana

(a) Qualifying Patient. A Qualifying Patient in actual possession of a Registry Identification Card may not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the Medical Use of marijuana in accordance with this chapter as long as the Qualifying Patient possesses an amount of marijuana that:

(i) Is not more than 2 1/2 ounces of Usable Marijuana; and

(ii) If the Qualifying Patient lives more than five miles from a Nonprofit Dispensary, and has not specified that a Designated Caregiver or a Nonprofit Dispensary is allowed under state law to cultivate marijuana for the Qualifying Patient, and is in possession of not more than 6 flowering marijuana plants greater than 12 inches in height or diameter, which must be kept in an Enclosed, Locked Facility unless they are being transported because the Qualifying Patient is moving, or they are being transported to the Qualifying Patient’s property.

(b) Designated Caregiver. A Designated Caregiver in actual possession of a Registry Identification Card may not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for Assisting a Qualifying Patient to whom the Designated Caregiver is connected through The Department’s registration process with the Medical Use of marijuana in accordance with this chapter, as long as the Designated Caregiver possesses an amount of marijuana that:

(i) Is not more than 2 1/2 ounces of Usable Marijuana for each Qualifying Patient to whom the Designated Caregiver is connected through The Department’s registration process; and

(ii) For each Qualifying Patient who has specified that the Designated Caregiver is allowed under state law to cultivate marijuana for the Qualifying Patient, does not exceed 6 flowering marijuana plants greater than 12 inches in height or diameter, provided in no circumstance shall the total number of flowering plants exceed 20, which must be kept in an Enclosed, Locked Facility unless they are being transported because the Designated Caregiver is moving or they are being transported to a Qualifying Patient’s property.

(c) Incidental amount of marijuana. Marijuana that is incidental to Medical Use, but is not Usable Marijuana, shall not be counted toward a Qualifying Patient’s or Designated Caregiver’s allowable amount of marijuana.

(d) Presumption.

(i) A Qualifying Patient is presumed to be lawfully engaged in the Medical Use of marijuana in accordance with this chapter if the Qualifying Patient is in actual possession of a Registry Identification Card and possesses an amount of marijuana that does not exceed the amount allowed under this chapter.

(ii) A Designated Caregiver is presumed to be lawfully engaged in Assisting with the Medical Use of marijuana in accordance with this chapter if the Designated Caregiver is in actual possession of a Registry Identification Card and possesses an amount of marijuana that does not exceed the amount allowed under this chapter.

(iii) The presumptions made in sections 103(d)(i) and 103(d)(ii) may be rebutted by evidence that conduct related to marijuana was not for the purpose of treating or alleviating the Qualifying Patient’s Qualifying Medical Condition or symptoms associated with the Qualifying Medical Condition, in accordance with this chapter.

(e) Cardholder not subject to arrest. A Cardholder may not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for giving an amount of marijuana the person is allowed to possess under subsections 103(a) or 103(b) to a Cardholder for the Qualifying Patient’s Medical Use when nothing of value is transferred in return or for offering to do the same.

(f) Transfer of seeds and seedlings

(i) A Nonprofit Dispensary may accept marijuana seeds, seedlings, plants, or Useable Marijuana from other Nonprofit Dispensaries in Arkansas. A Nonprofit Dispensary may transfer or sell marijuana seeds, seedlings, plants, or useable marijuana to other Nonprofit Dispensaries in Arkansas.

(ii) A Nonprofit Dispensary may accept a donation of marijuana seeds or seedlings, without compensation, from individuals and entities from jurisdictions outside of Arkansas who are authorized to cultivate medical marijuana in their home state.

(iii) Individuals and entities from jurisdictions outside of Arkansas who are authorized to cultivate medical marijuana in their home state shall not be subject to arrest, prosecution, or penalty, or denied any right or privilege for donating marijuana seeds or seedlings to Nonprofit Dispensaries.

(g) Discrimination

(i) No school or landlord may refuse to enroll or lease to, or otherwise penalize, an individual solely for his or her status as a Qualifying Patient or a Designated Caregiver, unless failing to do so would put the school or landlord in violation of federal law or regulations.

(ii) For the purposes of medical care, including organ transplants, a Qualifying Patient’s authorized use of marijuana in accordance with this chapter shall be considered the equivalent of the authorized use of any other medication used at the direction of a Physician, and shall not constitute the use of an illicit substance.

(iii) An employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status as a Qualifying Patient or Designated Caregiver.

(h) Person may not be denied custody or visitation of minor. A person otherwise entitled to custody of, or visitation or parenting time with, a minor may not be denied custody, visitation or parenting time and there shall be no finding of abuse solely for conduct allowed under this chapter and there shall be no presumption of neglect or child endangerment for conduct allowed under this chapter, unless the individual’s behavior is such that it creates an unreasonable danger to the safety or welfare of the minor that can be established by clear and convincing evidence.

(i) Designated Caregiver may receive compensation for costs. A Designated Caregiver may receive compensation for costs, including reasonable labor costs, associated with Assisting a Qualifying Patient’s Medical Use of marijuana as long as the Designated Caregiver is connected to the Qualifying Patient through The Department’s registration process. Any such compensation does not constitute the sale of controlled substances.

(j) Physician not subject to penalty. A Physician may not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by the Arkansas State Medical Board or by any other business or occupational or professional licensing board or bureau, solely for providing written certifications that, in the Physician’s professional opinion, a patient is likely to receive therapeutic benefit from the Medical Use of marijuana to treat or alleviate the patient’s Qualifying Medical Condition or symptoms associated with the Qualifying Medical Condition, provided that nothing shall prevent a professional licensing board from sanctioning a Physician for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care.

(k) Person not subject to penalty for providing Qualifying Patient or Designated Caregiver marijuana paraphernalia. A person may not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a Qualifying Patient or a Designated Caregiver with marijuana paraphernalia for purposes of facilitating a Qualifying Patient’s Medical Use of marijuana.

(l) Property not subject to forfeiture. Any marijuana, marijuana paraphernalia, licit property or interest in licit property that is possessed, owned or used in connection with the Medical Use of marijuana, as allowed under this chapter, or property incidental to such use, may not be seized or forfeited.

(m) Person not subject to penalty for being in presence of Medical Use of marijuana. A person may not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, simply for being in the presence or vicinity of the Medical Use of marijuana as allowed under this chapter or for directly Assisting a physically disabled Qualifying Patient with using or administering marijuana.

(n) Effect of Registry Identification Card issued by another jurisdiction. A Registry Identification Card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth or insular possession of the United States that allows, in the jurisdiction of issuance, a Visiting Qualifying Patient to possess marijuana for medical purposes, shall have the same force and effect as a Registry Identification Card issued by The Department, provided that the same Qualifying Medical Condition as defined in section 102(d) exists.

Section 104. Rules

(a) Rule making power. The Department may adopt rules to carry out the purposes of this chapter. Rules adopted pursuant to this subsection are Rules as defined in Ark.Code Ann. § 25-15-201 et seq., the Arkansas Administrative Procedure Act.

(b) Registry Identification Cards. Not later than 90 days after the effective date of this chapter, The Department shall adopt rules governing the manner in which it considers applications for and renewals of Registry Identification Cards. The Department’s rules must establish application and renewal fees that generate revenues sufficient to offset all expenses of implementing and administering this chapter. The Department may establish a sliding scale of application and renewal fees based upon a Qualifying Patient’s family income. The Department may accept donations from private sources in order to reduce the application and renewal fees.

(c) Nonprofit Dispensaries. Not later than 90 days after the effective date of this chapter, The Department shall adopt rules with the goal of protecting against diversion and theft, without imposing an undue burden on the registered Nonprofit Dispensaries or compromising the confidentiality of Qualifying Patients or their Designated Caregivers, including rules governing:

(i) The manner in which it considers applications for and renewals of registration certificates for Nonprofit Dispensaries;

(ii) The form and content of registration and renewal applications;

(iii) Oversight requirements for Nonprofit Dispensaries;

(iv) Record-keeping requirements for Nonprofit Dispensaries;

(v) Security requirements for Nonprofit Dispensaries which shall include lighting, physical security, alarm requirements, and measures to prevent loitering;

(vi) Sanitary requirements for Nonprofit Dispensaries;

(vii) Electrical safety requirements for Nonprofit Dispensaries;

(viii) The specification of acceptable forms of picture identification that a Nonprofit Dispensary may accept;

(ix) Personnel requirements including how many volunteers a Nonprofit Dispensary is permitted to have and requirements for supervision;

(x) Labeling standards for marijuana distributed to Qualifying Patients;

(xi) Procedures for suspending or terminating the registration of Nonprofit Dispensaries that violate the provisions of this section or the rules adopted pursuant to this section, procedures for appealing penalties, and a schedule of penalties;

(xii) Procedures for inspections and investigations of Nonprofit Dispensaries;

(xiii) Advertising restrictions for Nonprofit Dispensaries;

(xiv) Permissible hours of operation for Nonprofit Dispensary sales; and

(xv) Such other matters as are necessary for the fair, impartial, stringent, and comprehensive administration of this chapter.

(d) Application and renewal fees for Nonprofit Dispensaries. Not later than 90 days after the effective date of this chapter, The Department shall adopt rules establishing application and renewal fees for Nonprofit Dispensary registration certificates, according to the following:

(i) The total amount of all fees shall generate revenues sufficient to implement and administer this chapter except that fee revenue may be offset or supplemented by private donations.

(ii) Nonprofit medical marijuana dispensary application fees may not exceed $5,000.

(iii) Nonprofit medical marijuana dispensary renewal fees may not exceed $1,000.

(iv) The total amount of revenue from Nonprofit Dispensary application and renewal fees and Registry Identification Card fees for Nonprofit Dispensary Agents shall be sufficient to implement and administer the Nonprofit Dispensary provisions of this chapter, except that the fee revenue may be offset or supplemented by private donations.

(e) Adding Qualifying Medical Conditions.

(i) Not later than 90 days after the effective date of this chapter, The Department shall adopt rules that govern the manner in which The Department shall consider petitions from the public to add medical conditions or treatments to the list of Qualifying Medical Conditions set forth in section 102(d).

(ii) In considering such petitions, The Department shall include public notice of, and an opportunity to comment in a public hearing upon, such petitions.

(iii) In considering such petitions, The Department shall add medical conditions or treatments to the list of Qualifying Medical Conditions set forth in section 102(d) if patients suffering from the medical conditions or undergoing the treatments in question would derive therapeutic benefit from the use of marijuana, taking into account the positive and negative health effects of such use. The Department may consider published studies in peer-reviewed journals, Physician testimony, and public comments made pursuant to 104(e)(ii) in making such determination.

(iv) The Department shall, after hearing, approve or deny such petitions within 60 days of their submission. The approval or denial of such a petition constitutes final agency action, subject to judicial review, and jurisdiction for judicial review is vested in the Circuit Court of Pulaski County.

Section 105. Registry Identification Cards

(a) Application for Registry Identification Card; qualifications. The Department shall issue Registry Identification Cards to Qualifying Patients who submit, in accordance with The Department’s rules:

(i) Written certification;

(ii) Application or renewal fee;

(iii) Name, address and date of birth of the Qualifying Patient, except that if the applicant is homeless, no address is required;

(iv) Name, address and telephone number of the Qualifying Patient’s Physician;

(v) Name, street address and date of birth of the Qualifying Patient’s Designated Caregiver, if any.

(vi) Name and address of the Nonprofit Dispensary that the Qualifying Patient designates, if any. A Qualifying Patient may designate only one Nonprofit Dispensary at a time.

(vii) A designation as to which Nonprofit Dispensary or Designated Caregiver will be allowed under state law to cultivate marijuana plants for the Qualifying Patient’s Medical Use, or, if a Nonprofit Dispensary is not operating within five miles of the Qualifying Patient’s home, a designation that the Qualifying Patient will grow his or her own marijuana. Only one Nonprofit Dispensary or, if a Nonprofit Dispensary is not operating within five miles of the Qualifying Patient’s home, one Designated Caregiver may be allowed to cultivate marijuana plants for a Qualifying Patient at a time.

(viii) A signed statement from the Qualifying Patient pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter.

(ix) A signed statement from the Designated Caregiver, if any, agreeing to be the Qualifying Patient’s Designated Caregiver and pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter.

(b) Issuing Registry Identification Card to minor. The Department may not issue a Registry Identification Card to a Qualifying Patient who is under 18 years of age unless:

(i) The Qualifying Patient’s Physician has explained the potential risks and benefits of the Medical Use of marijuana to the Qualifying Patient and to a parent, guardian or person having legal custody of the Qualifying Patient; and

(ii) A parent, guardian or person having legal custody consents in writing to:

(A) Allow the Qualifying Patient’s Medical Use of marijuana;

(B) Serve as one of the Qualifying Patient’s Designated Caregivers; and

(C) Control the Acquisition of the marijuana, the dosage and the frequency of the Medical Use of marijuana by the Qualifying Patient.

(c) Department approval or denial. The Department shall verify the information contained in an application or renewal submitted pursuant to this section and shall approve or deny an application or renewal within 14 days of receiving it. The Department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, the applicant previously had a Registry Identification Card revoked, The Department determines that the information provided was falsified, or The Department determines the written certification was not made in the context of a bona fide Physician-patient relationship. Rejection of an application or renewal is considered a final agency action, subject to judicial review, and jurisdiction is vested in the Circuit Court of Pulaski County.

(d) Designated Caregiver Registry Identification Card. The Department shall issue a Registry Identification Card to the Designated Caregiver, if any, who is named in a Qualifying Patient’s approved application pursuant to section 105(a).

(e) Registry Identification Card issuance. The Department shall issue Registry Identification Cards to Qualifying Patients and Designated Caregivers within 5 days of approving an application or renewal under this section. Registry Identification Cards expire one year after the date of issuance, unless the Physician states in the written certification that he believes the Qualifying Patient would benefit from medical marijuana only until a specified earlier date, then the Registry Identification Card shall expire on that date.

(i) In the case of qualified patients and Designated Caregivers, Registry Identification Cards shall contain:

(A) The name, address and date of birth of the Qualifying Patient or Designated Caregiver;

(B) The name, address and date of birth of the Qualifying Patient’s Designated Caregiver, if any;

(C) The date of issuance and expiration date of the Registry Identification Card;

(D) A random, 10-digit alphanumeric identification number that is unique to the Cardholder;

(E) A photograph, if The Department decides to require one; and

(F) A clear designation showing whether the Cardholder will be allowed under state law to cultivate marijuana plants for the Qualifying Patient’s Medical Use.

(f) Notification of changes in status or loss of card. This subsection governs notification of changes in status or the loss of a Registry Identification Card.

(i) A Qualifying Patient shall notify The Department within 15 days of any change in the Qualifying Patient’s name, address, Designated Caregiver or preference regarding who may cultivate marijuana for the Qualifying Patient or if the Qualifying Patient ceases to have a Qualifying Medical Condition.

(ii) A Nonprofit Dispensary shall notify The Department within 15 days of any change in the name or address of an agent of the Nonprofit Dispensary issued a Registry Identification Card in accordance with section 108(h).

(iii) A Qualifying Patient or a Nonprofit Dispensary who fails to notify The Department as required under sections 105(f)(i) or 105(f)(ii) commits a civil violation for which a penalty of not more than $150 may be adjudged and collected by The Department.

(iv) If the Qualifying Patient’s certifying Physician notifies The Department in writing that the Qualifying Patient has ceased to suffer from a Qualifying Medical Condition, the Qualifying Patient’s Registry Identification Card becomes void upon notification by The Department to the Qualifying Patient.

(v) A Designated Caregiver or Nonprofit Dispensary shall notify The Department of any change in the caregiver’s or Nonprofit Dispensary’s name or address within 10 days of such change. A Designated Caregiver or Nonprofit Dispensary who fails to notify The Department of any of these changes commits a civil violation for which a penalty of not more than $150 may be adjudged and collected by The Department

(vi) When a Qualifying Patient or Designated Caregiver notifies The Department of any changes listed in this subsection, The Department shall issue the Qualifying Patient and the Designated Caregiver a new Registry Identification Card within 10 days of receiving the updated information and a $10 fee.

(vii) When a Qualifying Patient changes the patient’s Designated Caregiver, The Department shall notify the previous Designated Caregiver within 10 days. The previous Designated Caregiver’s protections as provided in this chapter expire 10 days after notification by The Department.

(viii) If a Cardholder loses the Cardholder’s Registry Identification Card, the Cardholder shall notify The Department and submit a $10 fee within 10 days of losing the card. Within 5 days after such notification, The Department shall issue a new Registry Identification Card with a new random identification number.

(g) Confidentiality.

(i) Applications and supporting information submitted by Qualifying Patients and Designated Caregivers under this chapter, including information regarding their Designated Caregivers and Physicians and the physical address of a Nonprofit Dispensary, are confidential as a medical record under The Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104-191).

(ii) The Department shall maintain a confidential list of the persons to whom The Department has issued Registry Identification Cards. Individual names and other identifying information on the list are confidential, exempt from the Arkansas Freedom of Information Act, and not subject to disclosure except to authorized employees of The Department as necessary to perform official duties of The Department.

(iii) The Department shall verify to law enforcement personnel whether a Registry Identification Card is valid without disclosing more information than is reasonably necessary to verify the authenticity of the Registry Identification Card.

(iv) A person, including an employee or official of The Department or another state agency or local government, who breaches the confidentiality of information obtained pursuant to this chapter commits a Class A misdemeanor. However, department employees may notify law enforcement about falsified or fraudulent information submitted to The Department as long as the employee who suspects that falsified or fraudulent information has been submitted confers with the employee’s supervisor and both agree that circumstances exist that warrant reporting.

(h) Cardholder who sells marijuana to person not allowed to possess. Any Cardholder who transfers marijuana to a person who is not a Cardholder under this chapter shall have his Registry Identification Card revoked and shall be subject to any other penalties established by law for unlawful transfer of a controlled substance. The Department may revoke the Registry Identification Card of any Cardholder who violates any provision of this chapter, and the Cardholder is subject to any other penalties established in law for the violation.

(i) Annual report. The Department shall submit to the Legislature an annual report that does not disclose any identifying information about Cardholders or Physicians, but does contain, at a minimum:

(i) The number of applications and renewals filed for Registry Identification Cards;

(ii) The number of Qualifying Patients and Designated Caregivers approved in each county;

(iii) The nature of the Qualifying Medical Conditions of the Qualifying Patients;

(iv) The number of Registry Identification Cards revoked;

(v) The number of Physicians providing written certifications for Qualifying Patients;

(vi) The number of registered Nonprofit Dispensaries; and

(vii) The number of Nonprofit Dispensary Agents.

Section 106. Scope

(a) Limitations. This chapter does not permit any person to:

(i) Undertake any task under the influence of marijuana when doing so would constitute negligence or professional malpractice;

(ii) Possess, smoke, or otherwise engage in the Medical Use of marijuana:

(A) In a school bus;

(B) On the grounds of any day care center, preschool, or primary or secondary school;

(C) At a drug or alcohol treatment facility;

(D) At a skating rink, Boys Club, Girls Club, YMCA, YWCA, or any similar community or recreation center;

(E) In any correctional facility;

(F) On any form of public transportation; or

(G) In any public place;

(ii) Operate, navigate or be in actual physical control of any motor vehicle, aircraft, motorized watercraft or any other vehicle drawn by power other than muscular power while under the influence of marijuana; or

(iii) Use marijuana if that person does not have a Qualifying Medical Condition.

(b) Construction. This chapter may not be construed to require:

(i) A government medical assistance program or private health insurer to reimburse a person for costs associated with the Medical Use of marijuana;

(ii) An employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana;

(iii) Any 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

(iv) A landlord to permit a qualified patient to smoke marijuana on any or in any leased property, except that a landlord may not prohibit the Medical Use of marijuana on leased property by a qualified patient through means other than smoking, including but not limited to the ingestion of medical marijuana or the inhalation through vaporization, as long as the tenant in possession of the property provides permission to the qualified patient to use medical marijuana in the rented property.

(c) Penalty for fraudulent representation. Fraudulent representation to a law enforcement official of any fact or circumstance relating to the Medical Use of marijuana to avoid arrest or prosecution is a civil violation punishable by a fine of $500 payable to The Department, which is in addition to any other penalties that may apply for making a false statement to law enforcement or for the use of marijuana other than use undertaken pursuant to this chapter.

Section 107. Affirmative defense and dismissal for medical marijuana

(a) Except as provided in section 106(a) and this section, an individual may assert a medical purpose for using marijuana as an affirmative defense to any prosecution for an offense involving marijuana intended for the individual’s Medical Use, and this defense shall be presumed valid and the prosecution shall be dismissed where the evidence demonstrates that:

(i) The individual is a Qualifying Patient, Nonprofit Dispensary Agent, or Designated Caregiver; and

(ii) The individual is in compliance with the requirements imposed by this act in section 103; or

(iii) The Department has delayed the review of the individual’s application, the issuance of the individual’s Registry Identification Card, or both for a period of greater than thirty days; and

(iv) The individual’s application meets the requirements of a Qualifying Patient or Designated Caregiver; and

(v) The individual is in compliance with the requirements imposed by this act in section 103.

(b) The defense and motion to dismiss shall not prevail if either of the following are proven:

(i) The individual’s Registry Identification Card has been revoked for misconduct; or

(ii) The purposes for the possession or cultivation of marijuana were not solely for Medical Use.

(c) An individual is not required to be in actual, physical possession of a Registry Identification Card to raise the affirmative defense set forth in this section.

(d) If an individual demonstrates a Medical Use of marijuana pursuant to this section, except as provided in section 106(a), the individual shall not be subject to the following:

(i) Disciplinary action by an occupational or professional licensing board or bureau; or

(ii) Forfeiture of any interest in or right to non-marijuana, licit property.

Section 108. Registration, certification of Nonprofit Dispensaries

(a) Nonprofit Dispensaries shall register with The Department.

(b) Not later than sixty days after receiving an application for a Nonprofit Dispensary, The Department shall register the Nonprofit Dispensary and issue a registration certificate and a random 20-digit alphanumeric identification number if:

(i) The prospective Nonprofit Dispensary had submitted the following:

(A) The application fee;

(B) An application, including:

(1) The legal name of the Nonprofit Dispensary;

(2) The physical address of the Nonprofit Dispensary and the physical address of one additional location, if any, where marijuana will be cultivated, neither of which may be within five hundred feet of a public or private school existing before the date of the Nonprofit Dispensary application;

(3) The name, address and date of birth of each Nonprofit Dispensary Agent;

(C) Operating procedures consistent with department rules for oversight of the Nonprofit Dispensary, including procedures to ensure accurate record-keeping and adequate security measures; and

(D) If the city, town or county in which the Nonprofit Dispensary would be located has enacted zoning restrictions, a sworn statement certifying that the Nonprofit Dispensary will operate in compliance with the restrictions;

(ii) None of the owners, board members or officers has been convicted of an Excluded Felony Offense;

(iii) None of the owners, board members or officers has previously been an owner, board member or officer of a Nonprofit Dispensary that has had its registration certificate revoked; and

(iv) None of the Nonprofit Dispensary Agents is under twenty-one years of age.

(c) The Department may not issue more than one Nonprofit Dispensary registration certificate for every twenty-five pharmacies that have obtained a pharmacy permit from the Arkansas Board of Pharmacy and operate within the state, except that The Department may issue Nonprofit Dispensary registration certificates in excess of this limit if The Department determines that additional Nonprofit Dispensaries are necessary to provide convenient access to patients in all parts of the state.

(d) The Department may conduct a criminal records check in order to carry out this section.

(e) A Nonprofit Dispensary registered under this section may Acquire, possess, cultivate, manufacture, prepare, deliver, transfer, transport, supply, and dispense marijuana, marijuana paraphernalia, and related supplies and educational materials, to Qualifying Patients who have designated it as their Nonprofit Dispensary and to their Designated Caregivers for the Qualifying Patients’ Medical Use. A Nonprofit Dispensary may receive compensation for providing the goods and services allowed by this section. A Nonprofit Dispensary may cultivate and possess whichever of the following quantities is greater:

(i) 95 flowering marijuana plants and all useable marijuana derived from such plants; or

(ii) six flowering plants and all Usable Marijuana derived from such plants for each Qualifying Patient who has designated the Nonprofit Dispensary to provide him with marijuana for Medical Use. A Nonprofit Dispensary may also possess marijuana seeds, stalks, and unusable roots.

(f) The Department shall track the number of Qualifying Patients who have designated each Nonprofit Dispensary to cultivate marijuana for them and issue a monthly written statement to the Nonprofit Dispensary identifying the number of Qualifying Patients who have designated that Nonprofit Dispensary along with the registry identification numbers of each Qualifying Patient and each Qualifying Patient’s Designated Caregivers. This statement must be updated each time a new Qualifying Patient designates the Nonprofit Dispensary or ceases to designate the Nonprofit Dispensary and may be transmitted electronically if The Department’s rules so provide. The Department may provide by rule that the updated written statements may not be issued more frequently than once each week.

(g) The Department shall issue each Nonprofit Dispensary Agent a Registry Identification Card within 10 days of receipt of the person’s name, address and date of birth under section 108(b)(i)(B)(3), 109(b)(iv) or 105(f), and a fee in an amount established by The Department. Each card must specify that the Cardholder is an agent of the Nonprofit Dispensary and must contain:

(i) The name, address and date of birth of the Nonprofit Dispensary Agent;

(ii) The legal name of the Nonprofit Dispensary with which the Nonprofit Dispensary Agent is affiliated;

(iii) A random identification number that is unique to the Cardholder;

(iv) The date of issuance and expiration date of the Registry Identification Card; and

(v) A photograph, if The Department decides to require one.

(h) The Department may not issue a Registry Identification Card to any Nonprofit Dispensary Agent who has been convicted of an Excluded Felony Offense. The Department may conduct a background check of each Nonprofit Dispensary Agent in order to carry out this provision. The Department shall notify the Nonprofit Dispensary in writing of the purpose for denying the Registry Identification Card.

(i) Expiration. A Nonprofit Dispensary registration certificate and the Registry Identification Card for each Nonprofit Dispensary Agent expire one year after the date of issuance. The Department shall issue renewal Nonprofit Dispensary registration certificates and renewal Registry Identification Cards within 10 days to any person or entity who complies with the requirements contained in this section. A Registry Identification Card of a Nonprofit Dispensary Agent expires upon notification by a Nonprofit Dispensary that such person ceases to work at the Nonprofit Dispensary.

Section 109. Nonprofit Dispensary inspections and requirements

(a) Inspection. Nonprofit Dispensaries are highly regulated by the state, and a Nonprofit Dispensary therefore is subject to reasonable inspection by The Department. The Department shall give reasonable notice of an inspection under this subsection.

(b) Nonprofit Dispensary requirements. This subsection governs the operations of Nonprofit Dispensaries.

(i). A Nonprofit Dispensary must be operated on a not-for-profit basis for the mutual benefit of its members and patrons. A Nonprofit Dispensary need not be recognized as a tax-exempt organization under 26 United States Code, Section 501(c)(3) and is not required to, but may, incorporate pursuant to Title 4, Chapter 28.

(ii) A Nonprofit Dispensary may not be located in a residential district or within 500 feet of the property line of a preexisting public or private school.

(iii) A Nonprofit Dispensary shall notify The Department within 10 days of when a Nonprofit Dispensary Agent ceases to work at the Nonprofit Dispensary.

(iv) A Nonprofit Dispensary shall notify The Department in writing of the name, address and date of birth of any new Nonprofit Dispensary Agent and shall submit a fee in an amount established by The Department for a new Registry Identification Card before the new Nonprofit Dispensary Agent begins working at the Nonprofit Dispensary.

(v) A Nonprofit Dispensary shall implement appropriate security measures to deter and prevent unauthorized entrance into areas containing marijuana and the theft of marijuana.

(vi) The operating documents of a Nonprofit Dispensary must include procedures for the oversight of the Nonprofit Dispensary and procedures to ensure accurate record keeping.

(vii) Each Nonprofit Dispensary shall keep the following records, dating back at least one year:

(A) Records of the disposal of marijuana that is not distributed by the Nonprofit Dispensary to Qualifying Patients who have designated the Nonprofit Dispensary to cultivate for them.

(B) A record of each transaction, including the amount of marijuana dispensed, the amount of compensation, and the registry identification number of the Qualifying Patient or Designated Caregiver.

(viii) Each Nonprofit Dispensary shall:

(A) Conduct an initial comprehensive inventory of all medical marijuana, including Usable Marijuana available for dispensing, mature marijuana plants, and seedlings at each authorized location on the date the Nonprofit Dispensary first dispenses medical marijuana.

(B) Conduct a monthly comprehensive inventory of all medical marijuana, including Usable Marijuana available for dispensing, mature marijuana plants, and seedlings at each authorized location.

(ix) A Nonprofit Dispensary is prohibited from acquiring, possessing, cultivating, preparing, manufacturing, delivering, transferring, transporting, supplying or dispensing marijuana for any purpose except to Assist Qualifying Patients with the Medical Use of marijuana directly or through the Qualifying Patients’ other Designated Caregiver.

(x) All cultivation of marijuana must take place in an Enclosed, Locked Facility.

(xi) A Nonprofit Dispensary or a Nonprofit Dispensary Agent may not dispense more than 2 1/2 ounces of Usable Marijuana to a Qualifying Patient or to a Designated Caregiver on behalf of a Qualifying Patient during a 15-day period. Each time a Nonprofit Dispensary Agent dispenses marijuana to a Qualifying Patient directly or through the Qualifying Patient’s Designated Caregiver, he must consult the Nonprofit Dispensary’s records to verify that the records do not indicate that the dispensing of marijuana would cause the Qualifying Patient to receive more marijuana than is permitted in a 15-day period. Each time marijuana is dispensed, the Nonprofit Dispensary Agent shall record the date the marijuana was dispensed and the amount dispensed. All records must be kept according to the registry identification number of the Qualifying Patient and Designated Caregiver, if any.

(xii) The dispensary records with patient information shall be treated as confidential medical record under The Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104-191).

Section 110. Immunity for Nonprofit Dispensaries

(a) No Nonprofit Dispensary shall be subject to the following:

(i) Prosecution for the Acquisition, possession, cultivation, preparation, manufacture, delivery, transfer, transport, sale, supply, or dispensing of marijuana and related supplies for medical purposes in accordance with the provisions of this chapter and any rule adopted by The Department pursuant to this chapter.

(ii) Inspection and search, except pursuant to section 109(a), or upon a search warrant issued by a court or judicial officer.

(iii) Seizure of marijuana, except upon any order issued by a court or judicial officer and with due process of law.

(iv) Imposition of any penalty or denied any right or privilege including, but not limited to, imposition of a civil penalty or disciplinary action by an occupational or professional licensing board or entity, solely for acting in accordance with this chapter to Assist Qualifying Patients or Designated Caregivers with the Medical Use of marijuana.

(b) No Nonprofit Dispensary Agents shall be subject to arrest, prosecution, search, seizure, or penalty in any manner, or denied any right or privilege including, but not limited to, civil penalty or disciplinary action by a business, occupational, or professional licensing board or entity, solely for working for or with a Nonprofit Dispensary to engage in acts permitted by this chapter.

(i) Except when transporting marijuana in accordance with section 110(b)(ii), Nonprofit Dispensary Agents who are not volunteers are only allowed to possess and manufacture marijuana at the Nonprofit Dispensary location or locations for which the Nonprofit Dispensary Agent is registered. Nonprofit Dispensary Agents who are volunteers are only allowed to possess and manufacture marijuana at a Nonprofit Dispensary location. Nonprofit Dispensary Agents who are volunteers may not dispense marijuana.

(ii) A Nonprofit Dispensary with a growing location in addition to the location of the Nonprofit Dispensary must label the marijuana that is being moved between the growing location and Nonprofit Dispensary with a trip ticket that identifies the Nonprofit Dispensary by identification number, the time, date, origin, and destination of the material being transported, and the amount and form of marijuana and marijuana material that is being transported. Marijuana can only be transported by a Nonprofit Dispensary Agent who is not a volunteer.

Section 111. Prohibitions for Nonprofit Dispensaries.

(a) A Nonprofit Dispensary may not dispense, deliver or otherwise transfer marijuana to a person other than a Qualifying Patient who has designated the Nonprofit Dispensary to cultivate marijuana for them or to the patient’s Designated Caregiver.

(b) The Department shall immediately revoke the Registry Identification Card of a Nonprofit Dispensary Agent who is found to have violated section 111(1), and such a person shall be disqualified from serving as a Nonprofit Dispensary Agent.

(c) A person who has been convicted of an Excluded Felony Offense may not be a Nonprofit Dispensary Agent. A Nonprofit Dispensary Agent in violation of this paragraph commits a civil violation for which a fine of not more than $1,000 may be adjudged and collected by The Department. A Nonprofit Dispensary Agent in violation of this paragraph and who at the time of the violation has been previously found to have violated this paragraph commits a Class C misdemeanor.

Section 112. Local regulation. This chapter does not prohibit a city, incorporated town or county of this State from limiting the number of Nonprofit Dispensaries that may operate in the political subdivision or from enacting reasonable zoning regulations applicable to Nonprofit Dispensaries.

Section 113. Prohibited conduct for Physicians. A Physician shall not:

(a) Accept, solicit, or offer any form of pecuniary remuneration from or to a Nonprofit Dispensary or other provider of medical marijuana.

(b) Offer a discount or other thing of value to a patient who uses or agrees to use a particular Nonprofit Dispensary.

(c) Examine a patient for purposes of diagnosing a Qualifying Medical Condition at a location where medical marijuana is sold or distributed.

(d) Hold an economic interest in a Nonprofit Dispensary if the Physician certifies the Qualifying Medical Condition of a patient for participation in the medical marijuana program.

Section 114. Enforcement

(a) Department failure to adopt rules. If The Department fails to adopt rules to implement this chapter within the time prescribed, any person who would be a Qualifying Patient under this chapter may commence a mandamus action in Pulaski County Circuit Court to compel The Department to perform the actions mandated pursuant to the provisions of this chapter.

(b) Department failure to issue a valid Registry Identification Card. If The Department fails to issue a valid Registry Identification Card or a registration certificate in response to a valid application or renewal submitted pursuant to this chapter within 45 days of its submission, the Registry Identification Card or registration certificate is deemed granted, and a copy of the registry identification application or renewal is deemed a valid Registry Identification Card.

(c) Department failure to accept applications. If at any time after the effective date of this chapter, allowing time for adoption of rules, The Department is not accepting applications, a notarized statement by a Qualifying Patient containing the information required in an application, pursuant to section 105(a), is deemed a valid Registry Identification Card.

Section 115. No implied repeal. By adoption of this Act, there is no implied repeal of the existing Arkansas laws criminalizing possession of marijuana for purposes not specified in this act. This act also acknowledges that marijuana use, possession, and distribution for any purpose remain illegal under Federal law.

Section 116. Severability. If any provision or section of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provisions or application of the Act which can be given effect without the invalid provisions or applications, and to this end the provisions of the Act are declared to be severable.