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Future of 2 Arkansas medical marijuana growing facilities hinges on school definition

by Hunter Field | July 29, 2018 at 4:30 a.m. | Updated July 30, 2018 at 4:30 a.m.
FILE - This Sept. 15, 2015 file photo shows marijuana plants a few weeks away from harvest in a medical marijuana cultivation center in Albion, Ill. (AP Photo/Seth Perlman, File)

The future of two of Arkansas' first medical marijuana growing facilities hinges on a single question: What is a school?

More specifically, is a college a school?

State officials thus far have answered that question "no," but state lawmakers and several companies that applied unsuccessfully for cannabis cultivation licenses are asking whether that's the correct interpretation.

The question has implications for two of the five companies awarded medical marijuana growing permits. Once constructed, Delta Medical Cannabis Co.'s and Natural State Wellness Enterprises' growing compounds will be located adjacent to Arkansas State University-Newport.

If ASU-Newport is determined to be a school, the two facilities would likely be in violation of the constitutional prohibition on growing medical cannabis within 3,000 feet of a church, day care or school.

The complex set of multifaceted legal questions has even neutral onlookers hesitant to pick a side.

[DOCUMENTS: Read complaints filed + winning applications from top five growers]

"There's plausible arguments and reasonable conclusions on both sides," said Joshua Silverstein, a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law.

Delta Medical Cannabis and Natural State Wellness Enterprises, along with three other companies, received their cultivation permits earlier this month. Those five companies' applications have been heavily scrutinized by unsuccessful applicants since the Arkansas Medical Marijuana Commission revealed them as the first license winners in February.

The ASU-Newport issue is the latest in a string of questions raised about the commission's selection process and the five companies that came out on top.

Amendment 98 to the Arkansas Constitution, which Arkansans approved in 2016, states that cultivation facilities "may not be within 3,000 feet of a public or private school." However, the amendment doesn't provide a definition for "public or private school."

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After several public hearings, the Medical Marijuana Commission arrived at a definition for its own set of rules, which govern the licensing process for growers and dispensaries.

"'School' means a facility or building operated by a public school district; an open-enrollment public charter school, as defined in Arkansas Code Annotated §6-23-103; or a private entity including parochial schools providing preschool, elementary, or secondary education but does not include post-secondary institutions of higher education, community colleges, or the residences of students being home schooled," the rule reads.

Darren Anderson, a Texarkana attorney, wrote in a Wednesday protest letter to the commission that it erred in its definition of "school." He wrote that words in the constitution should be interpreted by their "plain and ordinary meaning," citing a 2016 Arkansas Supreme Court opinion.

"The [commission] went beyond the plain and ordinary meaning of a 'school' by narrowing the definition to only 'a facility or building operated by a local school district,'" Anderson wrote. "It is reasonably implied from Article 14 of the Arkansas Constitution that schools are places of publicly financed education for citizens."

Silverstein said administrative agencies like the Medical Marijuana Commission don't have the authority to broaden or narrow constitutional provisions, so the first question is whether colleges should be included under the definition of "school" in Amendment 98.

Again, Silverstein said there are reasonable arguments either way, pointing to several statutes and court cases in other states that come down on both sides.

Anderson and others have raised other questions, too. If indeed it's determined that the commission's definition is consistent with Amendment 98, they've argued that ASU-Newport should be subject to the 3,000-foot requirement because it offers coursework for local high school students.

Several hundred high-school students attend a handful of technical education courses at ASU-Newport each semester, so state Sen. Bill Sample, R-Hot Springs, asked Attorney General Leslie Rutledge to weigh in on the matter.

"Does Arkansas State University at Newport, which notes more than 800 high school students currently taking concurrent classes in partnership between the public university and area public schools, qualify as a public school as defined by Amendment No. 98 of the Constitution of the State of Arkansas of 1874?" he wrote in a March opinion request.

Rutledge hadn't responded as of Friday afternoon.

ASU-Newport, for its part, doesn't consider itself a school under the commission's definition, said ASU System spokesman Jeff Hankins.

"We aren't operated by a public school district, and we aren't offering high school classes," he said. "We offer college-level courses."

High school students attend ASU-Newport through IGNITE Academy, a pilot program funded by the Arkansas Department of Career Education. It offers a variety of technical classes from truck service and maintenance to welding and health professions.

The courses are taught by ASU-Newport employees, and the students receive both secondary and post-secondary credit, said Cody Waits, deputy director for the Department of Career Education's Office of Skills Development.

"The idea is we want to use educational infrastructure already in place and give students chances to receive concurrent credit," he said.

About a dozen high schools send students to IGNITE Academy.

Both questions may make their way before the courts, at which point, Silverstein said, it "would be the court taking its best shot at the most plausible meaning of school."

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