When Arkansas law requires 'at least three' of four tourism-industry seats on a city advertising and promotion commission to be lodging or restaurant owners, can a city ordinance require all four?

Plain-English summary

Senator Bryan King asked about a recently enacted Eureka Springs ordinance governing the Eureka Springs Advertising and Promotion Commission, the local body that spends the city's hotel/motel/restaurant tourism tax. Ark. Code Ann. § 26-75-605 sets the seven-member composition of every A&P commission: four tourism-industry members, two from the city's governing body, and one at-large. Among the four tourism-industry members, the statute says "at least three" must be owners or managers of hotels, motels, or restaurants. The Eureka Springs ordinance required all four to be lodging or restaurant owners or managers, rather than three plus one from "other tourism-related businesses." Was the city changing state law?

The AG's answer was no, the city had not changed state law. The phrase "at least three" set a floor, not a ceiling. By requiring all four to be lodging or restaurant owners, the city was still satisfying the "at least three" minimum: four members meeting the criterion is more than three, not fewer. The legislature could have written "exactly three" if it wanted to cap the lodging/restaurant share. It did not.

The AG framed the question as two separate issues. Question 1 asked whether the city could "change" state law, which the AG correctly noted is foreclosed by Article 12, § 4 of the Arkansas Constitution: municipalities cannot adopt ordinances contrary to general state law. But the real question was whether the statute left the city any flexibility, and on that point the AG read § 26-75-605 to allow a city to go beyond the statutory minimum so long as the minimum was met.

Question 2 then asked whether the ordinance itself was valid. The AG ran through each part of the ordinance against § 26-75-605: seven members total (matches statute), four tourism-industry members with staggered four-year terms (matches statute), all four required to be lodging or restaurant owners (satisfies the "at least three" minimum), two members from the city's governing body serving at the will of that body (matches statute), one at-large member from the city or county for a four-year term (matches statute), and tourism-industry and at-large members allowed to reside in Carroll County rather than only within Eureka Springs (matches the statute's optional county-resident allowance).

The AG flagged one procedural gap. Section 26-75-605(b)(2) required the at-large position to be filled "by nomination by the chief administrator of the city and approval by the governing body of the city." The ordinance let the mayor make the at-large selection but did not expressly require city council approval. The AG noted that approval was plainly required by statute and a court would treat the ordinance as subject to that requirement whether or not it was written in.

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

Arkansas Code § 26-75-605 governs the composition of every municipal advertising and promotion commission established to administer the local hotel/motel/restaurant tax. The seven-member structure was rigid: four tourism-industry members (at least three of whom must be hotel, motel, or restaurant owners or managers), two members of the city's governing body, and one at-large member. Each category had its own term length: four years for tourism-industry and at-large members; at-will for governing-body members.

Article 12, § 4 of the Arkansas Constitution prohibits municipal ordinances "contrary to the general laws of the state." Cities cannot override state statutes by local ordinance. But state statutes often leave room for local supplementation. The drafting question is whether the statute sets a fixed rule or a minimum baseline.

The AG read § 26-75-605(a)(1)(B) under standard Arkansas statutory-construction principles, drawing on Crafton, Tull, Sparks & Associates v. Ruskin Heights (Ark. 2015). Statutes are read by their plain language; every word must be given effect; legislative intent is gathered from the language used, not from search beyond the text when the meaning is clear. The phrase "at least three" had a plain meaning. It set a floor. A city ordinance requiring four did not violate it; it satisfied it.

The structure of § 26-75-605 mattered. The legislature was prescriptive about the total number (seven) and the categorical breakdown (four tourism-industry, two governing-body, one at-large). It was also prescriptive about the dominance of lodging and restaurants within the tourism-industry block, but used "at least three," not "exactly three." A city that wanted to weight the commission entirely toward lodging and restaurants could do so by ordinance.

Common questions

Could a city require fewer than three lodging or restaurant owners?
No. The "at least three" minimum is a state-law requirement under Article 12, § 4. A city ordinance requiring only two would conflict with the statute and be invalid.

Could a city require all four tourism-industry seats to come from non-lodging-non-restaurant tourism businesses?
No. That would also conflict with the "at least three" minimum. The minimum has to be met.

Could the city change the total number of commissioners, say to nine?
No. Section 26-75-605(a) specifies seven members. That is a fixed rule, not a minimum.

Could the city change the term lengths?
No. The statute specifies staggered four-year terms for tourism-industry members and four-year terms for the at-large member. These are fixed.

What was the practical reason Eureka Springs wanted all four to be lodging or restaurant owners?
The opinion doesn't dwell on motivation, but A&P commissions decide how to spend the local hotel/motel/restaurant tax. The businesses that pay the tax (lodging and restaurants) often want a commission composed of people whose own operations are directly affected by the spending decisions.

Did the AG say the ordinance was valid in every respect?
Almost. The AG flagged one gap: the ordinance did not expressly say the mayor's at-large pick needed city council approval. Section 26-75-605(b)(2) plainly required that approval, so the statute would supply that requirement whether or not the ordinance restated it.

Source

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

Original opinion text

Opinion No. 2015-043
June 18, 2015

The Honorable Bryan King
State Senator
871 CR 814
Green Forest, AR 72638

Dear Senator King:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion concerning the Eureka Springs Advertising and Promotion Commission ("ESAPC"). As background for your questions, you state:

The City of Eureka Springs has an existing advertising and promotion commission that collects from lodging and food/beverage businesses. A recently passed city ordinance requires that owners or managers of lodging or restaurant businesses hold all four of the tourism industry seats on the ESAPC. However, state statutes say only three of the four positions must be owners or managers of lodging or food/beverage businesses, allowing owners or managers of other tourism-related businesses to hold one of the four tourism industry seats. For your review, a copy of the new city ordinance is attached.

With this background in mind, you ask the following questions:

1) Can a city council change the state's statutes that set the membership requirements of local advertising and promotion commissions?

2) Is the attached city ordinance valid? If not, please explain why.

RESPONSE

In response to Question 1, it is my opinion that the Eureka Springs city council has not attempted to change state law governing the membership requirements of its advertising and promotion commission, and that the state law at issue, Ark. Code Ann. § 26-75-605, allows limited flexibility for a city to determine the makeup of its advertising and promotion commission. As to Question 2, it is my opinion that the ordinance does comport with the requirements of section 26-75-605.

DISCUSSION

Question 1: Can a city council change the state's statutes that set the membership requirements of local advertising and promotion commissions?

The Arkansas Constitution expressly prohibits municipalities from adopting ordinances that are contrary to the general laws of the state. So the answer to the question as you have phrased it is "no, a city council may not change a state statute regarding membership requirements of a local advertising and promotion commission."

But, in my opinion, the relevant question surrounding the ordinance that you submitted is not whether the Eureka Springs city council has attempted to change state law, but rather whether state law regarding the composition of local advertising and promotion (A&P) commissions has left the city any room to go beyond the law's requirements. In my opinion, the statute at issue does provide limited ability for the city to do so.

The language of the governing statute in this matter, Ark. Code Ann. § 26-75-605 (Repl. 2008), is clear and unambiguous. It states in part:

(a) Any municipality levying a tax pursuant to this subchapter shall create by ordinance a municipal advertising and promotion commission, to be composed of seven (7) members, as follows:

(1)(A) Four (4) members shall be owners or managers of businesses in the tourism industry, and the owner or manager shall reside in the levying municipality or, if the governing body of the municipality provides for by ordinance, the owner or manager may reside outside of the municipality but within the county where the municipality is located.

(B) At least three (3) of these members shall be owners or managers of hotels, motels, or restaurants and shall serve for staggered terms of four (4) years;

(2) Two (2) members of the commission shall be members of the governing body of the municipality and selected by the governing body and shall serve at the will of the governing body; and

(3) One (1) member shall be from the public at large who shall reside within the levying municipality or in the county of the levying municipality and shall serve for a term of four (4) years.

The statute is very specific and controlling as to the total number of members an A&P commission must have (seven), and as to the make-up of those seven members (four must come from within the tourism industry, two must be members of the city's governing body, and one must be from the public at large). But the legislature also said, with respect to the four tourism industry members, that at least three must be owners or managers of lodging or restaurant businesses. Does that mean that only three must be owners or managers of lodging or restaurant businesses?

To resolve this question, I am guided by the following principles of statutory construction:

The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe statutes so that, if possible, every word is given meaning and effect. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. When a statute is clear, it is given its plain meaning, and [we] will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used.

Applying these principles, I believe the term "at least" as used in Ark. Code Ann. § 26-75-605(a)(1)(B) means that no fewer than three of the tourism industry commission members must be owners or managers of lodging or restaurant businesses. The term "at least" leaves open the possibility that all four of those members could be owners or managers of lodging or restaurant businesses, because in such a situation, there would still be "at least three" members from within that class. In other words, the legislature, in using the term "at least," established a floor, and not a ceiling.

Accordingly, in my opinion, the city council may pass an ordinance stating that all four tourism industry members of its A&P commission shall be owners or managers of lodging or restaurant businesses.

Question 2: Is the attached city ordinance valid? If not, please explain why.

In my opinion, the ordinance you provided generally does comport with the requirements of Ark. Code Ann. § 26-75-605 as previously discussed. The ordinance states that 1) the ESAPC must be composed of seven members; 2) that four of those members must be owners or managers of businesses in the tourism business with staggered terms of four years, and that these four members are to be owners or managers of lodging or restaurant businesses; 3) that two members must come from the city's governing body to serve at the will of the governing body; 4) and that one member shall be from the public at large, to be selected by the mayor for a four-year term. Moreover, the ordinance allows, as does the statute, for the tourism industry members and the at-large member to reside within Carroll County (the county where Eureka Springs is located), which according to the recitals was the point of the ordinance.

Note: Ark. Code Ann. § 26-75-605(b)(2) states that the at-large position "shall be filled by nomination by the chief administrator of the city and approval by the governing body of the city." I note that the ordinance does not expressly state that the mayor's at-large selection must be approved by the city council. Such approval is plainly required under the statute.

Assistant Attorney General Ray Pierce prepared this opinion, which I hereby approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/RP:cyh