Can Arkansas voters approve a dry-county local option to permit on-premise alcohol sales at hotels, restaurants, microbreweries, and festivals?

Plain-English summary

Little Rock attorney David Couch submitted a proposed initiated act ("The On Premise Local Option Election Alcohol Act") that would have let voters in a dry Arkansas county, or in a city of the first class within such a county, hold a local option election authorizing on-premise sale and consumption of alcoholic beverages at hotels, restaurants, microbrewery-restaurants, and "festivals." Off-premise sales would have remained barred.

This was Couch's second try; Opinion No. 2016-009 had rejected an earlier draft on similar grounds. Attorney General Leslie Rutledge again declined to certify the popular name and ballot title because she identified six fresh ambiguities in the proposal's text that prevented her from fairly summarizing it for voters. She told Couch he could redraft and resubmit.

Currency note

This opinion was issued in 2016. 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.

What the AG flagged

The opinion identified six concerns with the text of the proposed initiated act:

1. Conflicting authorities for defining "festival." The proposal defined a festival as an event whose types would be determined by the Alcoholic Beverage Control Director "pursuant to 3-2-206" (his general rulemaking authority over licensees). But a separate provision said sales for festivals would be permitted under § 3-4-105, which authorizes only temporary permits for "function[s] sponsored by or for the benefit of a nonprofit organization or charitable organization." The AG could not tell whether the Director's rulemaking on festivals was bounded by the narrower § 3-4-105 category.
2. Unclear authority over festival location. It was also unclear whether the Director's rulemaking or permitting authority extended to determining the "fixed location" of a festival, including whether it could fix a location on city property or city right-of-way.
3. "Wet" defined but never used. The measure carefully defined "wet," but the AG could find no operative use of the term in the text. That left a defined term with no apparent substance.
4. Mismatched permission for manufacturing. The proposal authorized elections to permit on-premise consumption, but a later provision said the majority vote would determine "whether or not alcoholic beverages may be sold for on-premises consumption or manufactured." Manufacturing was not part of the election's authorized scope as described elsewhere, creating an internal conflict.
5. Microbrewery-restaurant licenses authorized for activities beyond the election's scope. Section 3-5-1204 normally authorizes microbrewery-restaurants to manufacture beer, malt beverages, or hard cider, plus sales beyond on-premise consumption. Because the election was framed as on-premise only, the proposal was ambiguous about whether a favorable vote would expand the licensee's authority to those other activities.
6. "May" creating discretionary/mandatory confusion. The proposal said the dry county or city "may conduct" the election, language that ordinarily implies discretion. The ballot title reinforced that framing. Yet the petition procedure incorporated § 3-8-201 et seq., which arguably requires the question to be placed on the ballot once a sufficient petition is filed. The proposal did not resolve the conflict.

The AG also flagged a sentence fragment in the text ("The sale of alcoholic beverages [sic] for under this section ....") as additional evidence the draft was not ready.

Background on Amendment 7 and ballot-title review

Ark. Code Ann. § 7-9-107 makes the Attorney General the gatekeeper for popular names and ballot titles on initiated acts and amendments. The AG cannot weigh policy merits, only check whether the popular name and ballot title honestly summarize the proposal. When the underlying act is internally inconsistent or ambiguous, Roberts v. Priest, 341 Ark. 813 (2000), holds that the AG cannot paper over those defects with a substituted ballot title; the sponsor must redraft the act. The AG also has to give voters "a fair understanding of the issues presented" (Becker v. Riviere, 270 Ark. 219 (1980)) and may not certify titles that are "tinged with partisan coloring" (Bailey v. McCuen, 318 Ark. 277 (1994)).

The AG declined to substitute alternative ballot-title language because the inconsistencies were in the act itself, not in the title.

Common questions

Did Arkansas eventually loosen local option election rules?
This opinion only addressed whether the AG would certify this particular sponsor's proposed initiated act on these particular terms. Statewide legislative changes in this area are independent of the certification dispute, and current law should be checked separately.

Why does the AG flag "may" versus "shall" so closely?
Arkansas Supreme Court precedent treats internal inconsistencies in the proposed act as fatal to ballot-title certification. When the act simultaneously gives a body discretion to call an election and (through cross-referenced procedures) seems to require it, the AG cannot draft a summary that is both accurate and brief, so the title fails review.

Could the sponsor try again?
Yes. The AG closed by inviting the sponsor to redesign the proposed measure and ballot title and resubmit. Each redraft starts a new certification cycle under § 7-9-107.

Source

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

Original opinion text

Opinion No. 2016-015
March 1, 2016
David A. Couch
Attorney at Law
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
1501 North University, Suite 228
Little Rock, AR 72207
Dear Mr. Couch:
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed initiated act.
At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title.
The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition.
Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed act.
The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed act.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name
The On Premise Local Option Election Alcohol Act

Ballot Title
An act to allow a dry county or city of the first class within the dry county to conduct an election to permit the on premise sale and consumption of alcoholic beverages upon the petition of fifteen percent (15%) of the qualified electors residing within the boundries [sic] of the dry county or city of the first class within the dry county; providing that on premise sale and consumption is allowed only at a hotel, restaurant, microbrewery-resturant [sic] or festival; defining hotel, restaurant, microwbrewery-resturant [sic], festival and other terms; and providing that no sales for off premise consumption is allowed.

This submission is a follow-up to Attorney General Opinion 2016-009, wherein I rejected your proposed popular name and ballot title due to ambiguities in the text of the proposed act that is the subject of your current request.

RESPONSE

The popular name is primarily a useful legislative device. It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. According to the Court, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." At the same time, however, a ballot title must be brief and concise; otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

Furthermore, the Court has confirmed that a proposed amendment cannot be approved if "[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure." The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without (1) clarification or removal of the ambiguities in the proposed amendment itself, and (2) conformance of the popular name and ballot title to the newly worded amendment.

It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities in the text of your proposed amendment itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposed amendment.

1. You have amended the word "festival" under the proposed act to state: "Festival" means an event held in a fixed location part of which is on city property or city right-of-way, which the general public may attend. Festival includes arts and craft shows, concerts, entertainment activities, exhibitions, fairs or other similar events as determined by the Director of the Alcoholic Beverage Control Division, pursuant to 3-2-206. [Emphasis added.] The referenced "3-2-206" is a section of the Arkansas Code that authorizes the Director of the Alcoholic Beverage Control Division ("Director") to promulgate rules and regulations to carry out the State's alcohol control acts. The reference to this law suggests that the types of events constituting "festivals" will be determined by the Director through his broad rulemaking authority. I also note, however, that the subdivision of your proposal entitled Election Results - Effects states that if there is a majority vote in favor of sales for on-premises consumption, "it shall be lawful for the Director ... to issue permits authorized in 3-4-105 for festivals." (Emphasis added). Section 3-4-105 does not mention "festivals." This Arkansas Code section authorizes temporary permits for alcohol sales "at a function sponsored by or for the benefit of a nonprofit organization or charitable organization." It is consequently unclear whether the Director's rulemaking authority as referenced in the proposed act's definition of "festival" is limited to this possibly narrower category of "function" referenced in connection with permits.

It is also unclear whether either the rulemaking or the permitting authority extends to determining the "fixed location" of a festival. It would seem that ordinarily, the Director's rulemaking pursuant to § 3-2-206 would not extend to a determination of this sort. This Code section states that rules and regulations promulgated by the Director shall be "absolutely binding upon all licensees," thereby signaling that a license has been separately issued. And § 3-4-105, regarding temporary permits for sales at functions sponsored by nonprofits and charities, does not specifically address the matter of the location of such functions. Your proposed act is consequently ambiguous on the matter of determining the "fixed location part of which is on city property or city right-of-way, which the general public may attend."

2. There is a definition of the term "wet" under the proposed measure, but the term does not appear to be used anywhere in the measure and therefore appears to be without substance.

3. Subsection (a)(1) under the subdivision entitled Local option election - Dry County On-premises authorizes an election "to permit the sale of alcoholic beverages for on-premises consumption as prescribed in subdivision (a)(2) of this section." (Emphasis added). The referenced "subdivision (a)(2)" states that sales are limited to sales for on-premises consumption at the identified locations only (hotel, restaurant, etc.). The prescribed form of the ballot title and the ballot, as set out in the Conduct of Election subdivision, similarly refer to the sale of alcoholic beverages for on-premises consumption.

These provisions pertaining to an election held under the act do not appear to recognize the manufacture of beer, malt beverage, or hard cider. However, subsection (d) under Conduct of Election states that "[a] majority vote ... shall determine whether or not alcoholic beverages may be sold for on-premises consumption or manufactured under subdivision (a) of this section." (Emphasis added). These possible inconsistencies could generate issues in connection with elections held under the act.

4. I note, moreover, that the Election Results - Effects subdivision of the proposed act states that in the event of a majority vote in favor of sales for on-premises consumption, it will be lawful for the Director to "issue permits authorized in ... 3-5-1204(a) for microbrewery-restaurants." (Emphasis added). Ordinarily, a microbrewery-restaurant license issued under Ark. Code Ann. § 3-5-1204 authorizes the licensee to engage in the manufacture of beer, malt beverage, or hard cider. Such a license also authorizes the holder thereof to engage in certain other sales and activities, other than sales for on-premises consumption. For the reasons stated above, however, there may be some question whether a favorable vote in an election held under the proposed act would effectively authorize a microbrewery-restaurant licensee to engage in any activities other than sales for on-premises consumption.

5. Subsection (a)(1) under the subdivision entitled Local option election - Dry County On-premises states that "[a] dry county or a city of the first class within the dry county may conduct an election ...." (Emphasis added). The word "may" usually implies discretion. In the context of your proposed act, this might suggest that the county or the first class city has discretion to decide whether to call the election. Such discretion might be buttressed by your proposed ballot title, wherein it refers to the act as one "to allow a dry county or city of the first class within the dry county to conduct an election ...."

I recognize in this regard that the measure requires, under the Local option election - Dry County On-premises and Conduct of Election subdivisions, that the "petition procedure" and the "election process" be "conducted under § 3-8-201 et seq." It may be that you intend, by the reference to § 3-8-201 et seq., to include the requirement under Ark. Code Ann. § 3-8-205 that "the question shall be placed on the ballot" in the event the petition is deemed sufficient. But in my view, this intention is not clearly expressed and an ambiguity remains regarding the mandatory/discretionary nature of the election.

6. The first sentence of subsection (a)(2) under Local option election - Dry County On-premises appears to be incomplete: "The sale of alcoholic beverages [sic] for under this section ...."

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of your proposal.

My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title. You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,
LESLIE RUTLEDGE
Attorney General