September 13, 2022

On November 8, besides casting ballots for various officeholders, voters will cast ballots on four amendments to the Missouri Constitution and on another ballot issue regarding amending the Missouri Constitution.

One amendment is receiving much attention:

Amendment 3 – to legalize adult-use recreational marijuana, allowing Missourians over 21 years of age to purchase, possess, consume marijuana for personal use and to tweak medical marijuana production and use currently in effect.

An attempt was made in a lawsuit seeking to block the recreational marijuana issue from the ballot. But on September 9, a Cole County Circuit Court judge ruled the issue can remain on the ballot. The judge said the plaintiff lacked standing as they had not proven they are a Missouri citizen.

The judge also wrote that the initiative petition complied with the “single subject” requirement of the state constitution and had the valid number of signatures to be placed on the ballot after a “legally authorized” review by Secretary of State Jay Ashcroft.

On September 12 the Missouri Western District Court of Appeals affirmed the lower court’s decision keeping the issue on the ballot.

The official ballot title on the Secretary of State’s website describes the amendment asking, Do you want to amend the Missouri Constitution to:

– Remove state prohibitions on purchasing, possessing, consuming, using, delivering, manufacturing, and selling marijuana for personal use for adults over the age of 21;

– Require a registration card for personal cultivation with prescribed limits;

– Allow persons with certain marijuana-related non-violent offenses to petition for release from incarceration or parole and probation and have records expunged;

– Establish a lottery selection process to award licenses and certificates;

– Issue equally distributed licenses to each congressional district; and

– Impose a 6 percent tax on the retail price of marijuana to benefit various programs?

If the issue is approved by voters, state governmental entities estimate initial costs of $3.1 million, initial revenues of at least $7.9 million, annual costs of $5.5 million, and annual revenues of at least $40.8 million. Local governments are estimated to have annual costs of at least $35,000 and annual revenues of at least $13.8 million.

A majority “yes” vote statewide would amend the constitution to remove state prohibitions on marijuana use.

A majority “no” vote defeating the constitutional amendment would prohibit recreational marijuana sale and use. However, the use of medical marijuana would remain unchanged under current law in Missouri.

The amendment is lengthy; 39 pages of text and can be found here:

Closer reading reveals many additional points of interest within the amendment. The following would occur if the amendment is passed by voters.

According to the amendment, the purpose is to make marijuana legal in state and local law for adults 21 years of age or older, and to control the commercial production and distribution of marijuana under a system that licenses, regulates, and taxes the businesses involved while protecting public health. The intent is to prevent arrest and penalty for personal possession and cultivation of limited amounts of marijuana by adults; prevent revenue generated from commerce in marijuana from going to criminal enterprises; prevent the distribution of marijuana to persons under 21 years of age; prevent the diversion of marijuana to illicit markets; protect public health by ensuring the safety of marijuana and products containing marijuana; and ensure the security of marijuana facilities.

The amendment is not intended to allow for the public use of marijuana, driving while under the influence of marijuana, or the use of marijuana in the workplace.

Under changes in the medical marijuana provisions of the amendment, licensed nurse practitioners would be eligible to recommend marijuana for medical purposes to patients with serious illnesses. Currently, the constitution only permits state-licensed physicians to make such recommendations.

The Department of Health and Senior Services (DHSS) would have the general power to regulate the advertising and promotion of marijuana sales, but such regulations must not be more stringent than similar state regulations on alcohol sales advertising and promotions.

Regarding the Missouri Sunshine Law, if the amendment is approved by voters, all public records produced or retained pursuant to marijuana licenses or applicants would be subject to the general provisions of Chapter 610, RSMo. However, records containing proprietary business information obtained from an applicant or licensee would be closed. (Proprietary business information shall include sales information, financial records, tax returns, credit reports, license applications, cultivation information and testing results unrelated to product safety, site security information and plans, and individualized consumer information.)

The presence of proprietary business information would not justify closing public records identifying the applicant or licensee; relating to any citation, notice of violations, tax delinquency, or other enforcement action; relating to any public official’s support or opposition relative to any applicant, licensee, or their proposed or actual operations; where disclosure is reasonably necessary for the protection of public health or safety; or, that are otherwise subject to public inspection under other applicable law.

Limitations on Ownership, an entity or entities under substantially common control, ownership, or management could not be an owner of more than 10 percent of the total Missouri marijuana cultivation facility licenses at any given time. The same ownership limit would apply to total marijuana dispensary facility licenses and total marijuana-infused products manufacturing facility licenses.

Qualifying medical marijuana patients would be allowed to cultivate up to six flowering marijuana plants, six nonflowering marijuana plants (over 14 inches tall), and six clones (plants under 14 inches tall) for the exclusive use of that qualifying patient. Such patients must obtain an identification card from DHSS, renewable every three years (currently every 12 months) at a cost of $50 (currently $100) to cultivate marijuana.

Attorney protections, according to the constitutional amendment, if approved, an attorney shall not be subject to disciplinary action by the Missouri Supreme Court, the office of chief disciplinary counsel, the state bar association, any state agency, or any professional licensing body for owning, operating, investing in, being employed by, or contracting with prospective or licensed marijuana facilities.

Property search protections, if the constitutional amendment is approved, state or local law enforcement when conducting investigations cannot use evidence of marijuana alone, without specific evidence indicating that the marijuana is outside of what is lawful for medical or adult use and cannot be the basis for a search of a patient or non-patient, including their home, vehicle or other property.

If federal law, rules, or regulations are amended to allow the interstate commerce of marijuana or marijuana-infused products or the importing or exporting of marijuana or marijuana-infused products into or out of Missouri, the provisions of the constitutional amendment, if approved by voters on November 8, would remain in full effect, unless preempted by such federal law, rule, or regulation.

Marijuana use restrictions, the amendment, if approved, does not preclude, limit, or affect laws that prohibit operating under the influence of marijuana any motor vehicle, train, aircraft, motorboat, or other motorized form of transport. Smoking marijuana within a motor vehicle or other motorized form of transportation while it is being operated would be prohibited.

Smoking marijuana is also prohibited on the grounds of a public or private school, college, university, in a school bus, or on the grounds of any jail or prison.

“Microbusiness provision”, the amendment would also establish a limited number of marijuana “microbusiness” facilities which may be either a microbusiness dispensary facility or a microbusiness wholesale facility. An applicant for a marijuana microbusiness license shall be majority owned by persons of lower income or who reside in an area of low-income and high unemployment, as specified. The DHSS would appoint a Chief Equity Officer if the amendment were approved. The CEO would assist with developing and implementing programs to inform the public of opportunities available to those persons who meet the licensing criteria.

Present-day facilities allowed to continue operations, any medical marijuana cultivation facility, medical marijuana dispensary facility, and medical marijuana-infused products manufacturing facility, holding an active facility license under current law would have the right to convert its license to a comprehensive marijuana license, and any entity certified by DHSS to conduct medical marijuana testing, transportation, or seed-to-sale tracking would be certified to conduct those activities with respect to all marijuana, if the amendment is approved.

If the amendment is approved, within 30 days of Dec. 8, 2022, DHSS would make available to the public application forms and application instructions for personal cultivation registration cards. Within 60 days of Dec. 8, 2022, the department would begin accepting applications for such registration cards. A person at least 21 years of age may obtain a registration card to cultivate up to six flowering marijuana plants, six nonflowering marijuana plants (over 14 inches tall), and six clones (plants under 14 inches tall) provided the plants and any marijuana produced by the plants more than three ounces are kept at one private resident in a locked space. Such persons must obtain an identification card from DHSS, renewable every 12 months at a cost of $100 to cultivate marijuana.

No elected official shall interfere directly or indirectly with the DHSS’ obligations and activities of the amendment. To minimize the potential for undue political influence in awarding licenses, the DHSS shall review license applications using reasonable safeguards that ensure the identify of the applicant and its principal owners, officers, and managers are not identified to the application reviewer.

A local government may prohibit the operation of all microbusiness dispensary facilities or comprehensive marijuana dispensary facilities from being located within its jurisdiction either through referral of a ballot question to the voters by the governing body or through citizen petition, signed by at least five percent of the qualified voters of the jurisdiction, provided that citizen petitions are otherwise generally authorized by the laws of the local government. Such a ballot question shall be voted on only during the regularly scheduled general election held in November of a presidential election year, starting in 2024.

Recreational marijuana will be taxed, a tax shall be levied upon the retail sale of non-medical marijuana sold to consumers at marijuana facilities at a rate of 6 percent of the retail price. After retaining no more than 2 percent of the total tax collected, amounts generated by the sales tax shall be deposited by the Department of Revenue (DOR) into the “Veterans, Health, and Community Reinvestment Fund.” Such tax receipts shall have various uses such as fulfilling responsibilities in the expungement of criminal history records, health care and other services for military veterans and their dependent families, drug addiction treatment, drug overdose prevention, and the Missouri public defender system to be used for legal assistance for low-income Missourians.

For all retail sales of marijuana, a record would be kept by the seller of all amounts and types of marijuana involved in the sale and the total amount of money involved in the sale, and such records must be kept on the premises, made available for review by the DHSS and the DOR, and be retained for 5 years from the date of the sale.

According to the current state constitution, the governing body of any local government could be authorized to impose, by ordinance or order, an additional sales tax in an amount not to exceed 3 percent on sales of adult use marijuana sold in the political subdivision.

Law enforcement data, each law enforcement agency in Missouri would be required to compile data reports involving search and arrest warrants involving marijuana, reasons for a warrant, if marijuana was discovered and/or seized during a search, if any other contraband was discovered or seized, a description of the tactics used by law enforcement to enter the property, and whether an arrest was made as a result of a search, and if so, the crime suspected. Such reports would be submitted to the state’s Attorney General annually, and the Attorney General would submit a summary of the reports to the Governor, to the General Assembly, and to each law enforcement agency no later than June 1 of each year.

Prior offender vacation of sentence, any person currently incarcerated in a prison, jail or halfway house, whether by trial or open or negotiated plea, who would not have been guilty of a non-violent adult or juvenile offense if this constitutional amendment had been in effect at the time of the offense, would be allowed to petition the sentencing court to vacate the sentence, to order immediate release from incarceration and other supervision by the DOC, and to expunge all government records of the case. The same provisions would apply to persons currently on probation or parole for a non-violent marijuana law violation, and they would have their sentences automatically vacated by the sentencing court, their supervision by the DOC terminated, and their records expunged.

Expungement of criminal records, within six months of the effective date of the new law, the circuit courts of Missouri would order the expungement of the criminal history records of all non-violent misdemeanor marijuana offenses for any person who is no longer incarcerated or under the supervision of the DOC. In all cases, an expungement order shall be legally effective immediately and the person whose record is expunged shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense, and the conviction and sentence shall be vacated as legally invalid.

If the amendment is approved, purchasing, possessing, consuming, using, ingesting, inhaling, processing, transporting, delivering without consideration, or distributing without consideration three ounces or less of dried, unprocessed marijuana, or its equivalent, will be legal for persons at least 21 years old. Overall, the provisions of the constitutional amendment would become effective 30 days after the November 8 election, if approved.