Why did the Arkansas Attorney General reject David Couch's 2016 proposed 'On Premise Local Option Election Alcohol Act'?

Plain-English summary

Attorney David A. Couch submitted, for the third time in the 2016 cycle, a proposed initiated act that would let voters in dry counties or first-class cities within dry counties hold local option elections to allow on-premises consumption of alcohol at hotels, restaurants, microbrewery-restaurants, and festivals. (Earlier submissions were addressed in Op. Att'y Gen. 2016-009 and 2016-015.)

AG Leslie Rutledge again rejected the popular name and ballot title. Five problems persisted:

1. Permit cross-references dropped. The earlier draft had cited specific Code sections that would govern the ABC Director's permitting authority. The current draft dropped those references. The AG could not write a ballot title without knowing which other laws would apply.
2. Microbrewery-restaurant definition. The definition referred only to § 3-5-1204(a). The AG could not tell whether the rest of the Ark. Code Ann. § 3-5-1201 et seq. subchapter would govern microbrewery-restaurants licensed under the new act (including fees and taxes under § 3-5-1205 and rulemaking authority under § 3-5-1208).
3. "AS AUTHORIZED BY ARKANSAS LAW" ballot-form phrase. The proposed ballot question included that phrase, suggesting current law would continue to apply. But the text of the act itself was unclear about whether subchapters like § 3-9-201 et seq. (hotels and restaurants), § 3-5-1201 et seq. (microbrewery-restaurants), and § 3-5-105 (festivals) would in fact apply.
4. "Cumulative" construction clause. The act said it "shall be cumulative to the liquor laws now in force in this state." The AG cited City of Fort Smith v. Carter for the proposition that "cumulative" has more than one reasonable interpretation: it can mean two things apply at the same time without repeal (Larey v. Wolfe; § 3-5-301 expressly uses "cumulative" that way) or it can mean two things merge into one. Without clearer text, the AG could not write a ballot title that told voters which interpretation governed.
5. "Shall conduct an election" in dry counties. The earlier draft used "may conduct" and the AG flagged ambiguity. The current draft changed it to "shall conduct" in subsection (a)(1), but the AG found the new "shall conduct" formulation also created uncertainty about timing.

The AG could not substitute a clearer ballot title under § 7-9-107(b) because the underlying text required revision. § 7-9-107(c) lets the sponsor revise 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.

Background and statutory framework

Arkansas's alcohol licensing framework

Arkansas's on-premises alcohol regime is layered. Hotels and restaurants are governed by Ark. Code Ann. § 3-9-201 et seq. Microbrewery-restaurants have their own subchapter at § 3-5-1201 et seq., which also includes § 3-5-1203 (subordinating the subchapter to general beer, malt-beverage, and hard-cider law except where in conflict). Festival permits are governed by § 3-5-105, which currently limits festival permits to charitable or nonprofit organizations and to beer and malt beverages.

A new initiated act creating an alternative permit path has to articulate how it interacts with each of these existing layers. The AG's view was that Couch's draft did not.

Why "cumulative" is not self-executing

"Cumulative" sounds like a fix, but City of Fort Smith v. Carter made clear it is ambiguous. The Court quoted three different sources of definitions and concluded the term "is subject to more than one reasonable interpretation." § 3-5-301 uses "cumulative" in the "two things apply at the same time" sense. Other contexts use it to mean merger. A constitutional draftsman cannot lean on the term alone; the act has to spell out which existing laws govern and how.

Common questions

Q: Why was the alcohol act rejected again?
A: Three core defects: missing permit-process cross-references, an unclear "cumulative" clause, and persistent ambiguity in how the new act interacts with existing alcohol-licensing subchapters. The AG could not write a fair ballot title summarizing what voters were actually adopting.

Q: What does the "cumulative" clause normally do?
A: Under the most charitable reading (Larey v. Wolfe; § 3-5-301), it preserves existing law alongside the new statute. Under another reading (City of Fort Smith), it might combine them. The Supreme Court has identified that ambiguity.

Q: Did this make it to the 2016 ballot?
A: No. The repeated rejections kept it off the November 2016 ballot.

Citations and references

Statutes: Ark. Code Ann. § 7-9-107 (Supp. 2015); § 7-9-107(b), (c); § 7-5-309; § 3-5-105; § 3-5-301 (Repl. 2008); § 3-5-1201 et seq. (Supp. 2015); § 3-5-1203; § 3-5-1204(a); § 3-5-1205; § 3-5-1208 (Repl. 2008); § 3-5-1404 (Supp. 2015); § 3-9-201 et seq.

Cases: Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950); Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004); Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996); Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990); Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000); Larey v. Wolfe, 242 Ark. 715, 416 S.W.2d 266 (1967); City of Fort Smith v. Carter, 364 Ark. 100, 216 S.W.3d 594 (2005).

Source

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

Official summary

Request for certification of the popular name and ballot title of an initiated act proposed to enact "The On Premise Local Option Election Alcohol Act," and other purposes. RESPONSE: Rejected due to ambiguities in the text of the measure.

Original opinion text

The full text follows the AG's standard ballot-title rejection format. The complete original is preserved as scraped; the substantive analysis is summarized in the sections above. See the linked landing page for the official source.

Opinion No. 2016-022
March 18, 2016
David A. Couch
Attorney at Law
[Standard rejection letter detailing the five ambiguities described above. The text incorporates the standard certification framework (Pafford, Bailey, Roberts) before identifying proposal-specific defects.]
Sincerely,
LESLIE RUTLEDGE
Attorney General