Arkansas Constitution of 1874 Amendment 98, § 2. Definitions

As used in this amendment:

(1) “Acquire” or “acquisition” means coming to possess marijuana by means of any legal source herein authorized, not from an unauthorized source, and in accordance with this amendment and any rules promulgated under this amendment;

(2) “Assist” or “assisting” means helping a qualifying patient make medical use of marijuana by enabling the medical use by any means authorized under this amendment;

(3) “Cardholder” means a qualifying patient, a dispensary agent, a cultivation facility agent, or a designated caregiver;

(4) “Cultivation facility” means an entity that:

(A) Has been licensed by the Medical Marijuana Commission under § 8 of this amendment;  and

(B) Cultivates, prepares, manufactures, processes, packages, sells to and delivers usable marijuana to a dispensary;

(5) “Cultivation facility agent” means an employee, supervisor, or agent of a cultivation facility who:

(A) Is twenty-one (21) years of age or older;

(B) Works at the cultivation facility;  and

(C) Has registered with the Alcoholic Beverage Control Division under § 9 of this amendment;

(6)(A) “Designated caregiver” means a person who is at least twenty-one (21) years of age, has not been convicted of an excluded felony offense, has agreed to assist a physically disabled qualifying patient with the medical use of marijuana, and who has registered with the Department of Health under § 5 of this amendment.

(B) “Designated caregiver” includes without limitation a parent:

(i) Of a qualifying patient who is under the age of eighteen (18);  and

(ii) Required to register as a designated caregiver under this amendment.

(C) “Designated caregiver” shall not include a member of the Arkansas National Guard or the United States military;

(7) “Dispensary” means an entity that has been licensed by the Medical Marijuana Commission under § 8 of this amendment;

(8) “Dispensary agent” means:

(A) An employee, supervisor, volunteer, or agent of a dispensary who:

(i) Is twenty-one (21) years of age or older;

(ii) Works at the dispensary;  and

(iii) Has registered with the division under § 9 of this amendment;  and

(B) An owner, officer, or board member of a dispensary who has registered with the division under § 8 of this amendment;

(9) “Enclosed, locked facility” means a room, greenhouse, or other enclosed area equipped with locks or other security devices that permit access only by an authorized individual;

(10) “Excluded felony offense” means:

(A)(i)(a) A felony offense as determined by the jurisdiction where the felony offense occurred.

(b) The Medical Marijuana Commission, the Department of Health, or the Alcoholic Beverage Control Division shall determine whether an offense is a felony offense based upon a review of the relevant court records concerning the conviction for the offense.

(ii) An offense that has been sealed by a court or for which a pardon has been granted is not considered an excluded felony offense;  or

(B) 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 not including:

(i) An offense for which the sentence, including any term of probation, incarceration, or supervised release, was completed ten (10) or more years earlier;  or

(ii) An offense that has been sealed by a court or for which a pardon has been granted;

(11) “Medical use” means the acquisition, possession, 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;

(12) “Physician” means a doctor of medicine or doctor of osteopathic medicine who holds a valid, unrestricted, and existing license to practice in the state of Arkansas and has been issued a registration from the United States Drug Enforcement Administration to prescribe controlled substances;

(13) “Qualifying medical condition” means one (1) or more of the following:

(A) Cancer, glaucoma, positive status for human immunodeficiency virus/acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Tourette's syndrome, Crohn's disease, ulcerative colitis, post-traumatic stress disorder, severe arthritis, fibromyalgia, Alzheimer's disease, or the treatment of these conditions;

(B) A chronic or debilitating disease or medical condition or its treatment that produces one (1) 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 six (6) months;  severe nausea;  seizures, including without limitation those characteristic of epilepsy;  or severe and persistent muscle spasms, including without limitation those characteristic of multiple sclerosis;  and

(C) Any other medical condition or its treatment approved by the Department of Health under § 4 of this amendment;

(14)(A) “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 under § 5 of this amendment.

(B) “Qualifying patient” shall not include a member of the Arkansas National Guard or the United States military;

(15) “Registry identification card” means a document issued by the department or the division that identifies a person as a qualifying patient, a dispensary agent, a cultivation facility agent, or a designated caregiver;

(16) “Sealed” means to expunge, remove, sequester, and treat as confidential the record or records of a felony offense;

(17)(A) “Usable marijuana” means the stalks, seeds, roots, dried leaves, flowers, oils, vapors, waxes, and other portions of the marijuana plant and any mixture or preparation thereof.

(B) “Usable marijuana” does not include the weight of any ingredients other than marijuana that are combined with marijuana and prepared for consumption as food or drink;

(18) “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 thirty (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;

(19)(A) “Written certification” means a document signed by a physician stating that in the physician's professional opinion, after having completed an assessment of the qualifying patient's medical history and current medical condition made in the course of a physician-patient relationship, the qualifying patient has a qualifying medical condition.

(B) A written certification shall specify the qualifying patient's qualifying medical condition, which also shall be noted in the physician's records.

(C) A physician shall not issue a written certificate to a patient based on an assessment performed through telemedicine.

(D) A written certification is not a medical prescription;

(20)(A) “Current use of marijuana” means use of marijuana that justifies the good faith belief of an employer that an applicant or employee is engaging in the use of marijuana.

(B) “Current use of marijuana” is presumed when a positive test result for marijuana occurs;

(21) “Employee” means an individual employed by an employer, but does not include:

(A) An individual employed by his or her parents, spouse, or child;

(B) An individual participating in a specialized employment training program conducted by a nonprofit sheltered workshop or rehabilitation facility;

(C) An individual employed outside the State of Arkansas;  or

(D) An independent contractor;

(22) “Employer” means an entity that employs nine (9) or more employees in the State of Arkansas in twenty (20) or more calendar weeks in the current or preceding calendar year;

(23)(A) “Good faith belief” means reasonable reliance on a fact, or that which is held out to be factual, without intent to deceive or be deceived and without reckless or malicious disregard for the truth.

(B) “Good faith belief” does not include a belief formed with gross negligence.

(C) “Good faith belief” may be based on any of the following:

(i) Observed conduct, behavior, or appearance;

(ii) Information reported by a person believed to be reliable, including without limitation a report by a person who witnessed the use or possession of marijuana or marijuana paraphernalia by an applicant or employee in the workplace;

(iii) Written, electronic, or verbal statements from the employee or other persons;

(iv) Lawful video surveillance;

(v) A record of government agencies, law enforcement agencies, or courts;

(vi) A positive test result for marijuana;

(vii) A warning label, usage standard, or other printed material that accompany instructions for usable marijuana;

(viii) Information from a physician, medical review officer, or a dispensary;

(ix) Information from reputable reference sources in print or on the internet;

(x) Other information reasonably believed to be reliable or accurate;  or

(xi) Any combination of the items listed in subdivisions (23)(C)(i)-(x) of this section;

(24) “Positive test result for marijuana” means a result that is at or above the cutoff concentration level established by the United States Department of Transportation or the Arkansas laws regarding being under the influence, whichever is lower;

(25)(A) “Safety sensitive position” means any position involving a safety sensitive function pursuant to federal regulations governing drug and alcohol testing adopted by the United States Department of Transportation or any other rules, guidelines, or regulations adopted by any other federal or state agency.

(B) “Safety sensitive position” also means any position designated in writing by an employer as a safety sensitive position in which a person performing the position while under the influence of marijuana may constitute a threat to health or safety, including without limitation a position:

(i) That requires any of the following activities:

(a) Carrying a firearm;

(b) Performing life-threatening procedures;

(c) Working with confidential information or documents pertaining to criminal investigations;  or

(d) Working with hazardous or flammable materials, controlled substances, food, or medicine;  or

(ii) In which a lapse of attention could result in injury, illness, or death, including without limitation a position that includes the operating, repairing, maintaining, or monitoring of heavy equipment, machinery, aircraft, motorized watercraft, or motor vehicles as part of the job duties;  and

(26)(A) “Under the influence” means symptoms of the current use of marijuana that may negatively impact the performance of the job duties or tasks or constitute a threat to health or safety.

(B) “Under the influence” includes without limitation:

(i) Symptoms of the applicant's or employee's speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, or other irrational or unusual behavior that are inconsistent with the usual conduct of the applicant or employee;

(ii) Negligence or carelessness in operating equipment, machinery, or production or manufacturing processes;

(iii) Disregard for safety;

(iv) Involvement in an accident that results in:

(a) Damage to equipment, machinery, or property;

(b) Disruption of a production or manufacturing process;  or

(c) An injury;  or

(v) Other symptoms causing a reasonable suspicion that the current use of marijuana may negatively impact the performance of the job duties or tasks or constitute a threat to health or safety.


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