Why did the Arkansas AG reject Barry Emigh's Fairplay Holdings casino-gambling amendment?
Apply this to your situation
This page answers the general question as of 2017. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Barry Emigh of Hot Springs submitted his seventh version of a casino-gambling constitutional amendment to Attorney General Leslie Rutledge. The proposal would have empowered members of a body called the "Fairplay Holdings Ballot Question Committee" (an entity created by the proposal itself) to "initiate" local ballot measures licensing casino gambling in certain Arkansas cities and counties, with alcoholic-beverage sales and service permitted at the licensed facilities.
The AG rejected the submission. Unlike the marijuana proposals where the AG identified specific ambiguities, this rejection was structural. The AG concluded that "fundamental problems" with the text precluded any meaningful review, and that until those problems were fixed, she could not conduct a "thorough, point-by-point review" for additional ambiguities.
Three threshold problems drove the rejection:
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Popular name length and confusion. The popular name was too long and too convoluted to serve as a "useful legislative device" for voters discussing the measure. An Arkansas Supreme Court case (Gaines v. McCuen) describes the popular name as a label voters can use to identify the proposal; the proposed name failed that function.
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Ballot title length and complexity. Even after Mr. Emigh shortened it from 990 to 845 words, the ballot title remained too complex for "intelligent considerate decision" by the average voter, the standard the Arkansas Supreme Court had set in Dust v. Riviere (1982). The court had previously struck down a 706-word ballot title as too long.
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The Fairplay Holdings Ballot Question Committee was undefined. The proposal referred to the BQC and its members repeatedly but said nothing about how the committee was formed, who could amend its organizing documents, how voters would know who its members were before voting, or what state-law framework (if any) governed it. Compounding the problem, the proposal's language suggested the directors, officers, and members could change "right up to the eleventh hour" before the election by amending the committee's statement of organization with the Arkansas Ethics Commission. Voters could effectively vote for an amendment without knowing who would have authority under it.
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The "initiation" process was undefined. The proposal said only Fairplay BQC members "shall be authorized to initiate" the local gambling ballot measures, but never specified how. By petition? By declaration? By some other mechanism? It cited Article 5 of the Arkansas Constitution but no specific section, and even a reference to Article 5 § 1 (the citizen-initiative provision) would not have been enough without more detail.
The AG noted she had previously written six opinions to Mr. Emigh on essentially the same proposal and once again urged him to seek the help of someone experienced in legal drafting before resubmitting. The petition was rejected under § 7-9-107(c).
Currency note
This opinion was issued in 2017. 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.
Common questions
Q: What is a "popular name" supposed to do?
A: It is a short, descriptive label for the measure. Gaines v. McCuen described it as "designed to make it easy for voters to discuss the proposal prior to the election, by giving them a label to identify it." A popular name that itself spans dozens of words is no longer a label.
Q: What is the ballot-title length standard?
A: The Arkansas Supreme Court has not set a numeric cap, but in Dust v. Riviere it struck down a 706-word ballot title as so "complex, detailed, lengthy, misleading and confusing that the Arkansas voter cannot intelligently make a choice based on the title." Mr. Emigh's 845-word ballot title was longer than the one the court rejected in 1982.
Q: Why does it matter that the BQC's membership could change?
A: Because the proposal would have given that committee an extraordinary power: the exclusive ability to "initiate" local ballot measures legalizing casino gambling. Voters voting on the constitutional amendment would be giving that power to a private entity whose membership they could not identify. That is a structural transparency problem the AG could not summarize for voters honestly.
Q: Couldn't the AG just trim the ballot title?
A: No. Section 7-9-107(b) authorizes substitution only when a faithful summary is possible. The AG concluded the proposal had threshold problems (the BQC's structure, the "initiation" mechanism) that no ballot-title revision could fix. The fix had to come at the proposal-text level.
Q: How is this different from the marijuana ballot rejections?
A: The marijuana rejections (Ops. 2017-031, -040, -041, -043, -047, -048) identified specific definitional or substantive ambiguities in otherwise structured proposals. This rejection is more fundamental: the proposal's basic architecture (an unidentifiable private committee with exclusive initiation power) was the problem.
Q: Did Mr. Emigh ever get a casino proposal certified?
A: Not in this 2017 sequence. The opinion notes seven submissions on essentially the same idea. The 2018 Arkansas ballot did include a casino-gambling proposal, but it was a separately drafted measure (Issue 4) by different sponsors, which voters approved.
Background and statutory framework
The Arkansas initiative-and-referendum process is constitutionally permissive (Article 5 § 1) but procedurally demanding. AG certification is one of several gates. Beyond the AG, sponsors must collect required signatures, comply with ballot-question-committee disclosure rules under Ark. Code Ann. §§ 3-8-701 et seq. and 7-9-401 et seq., and survive challenges before the Arkansas Supreme Court if the certification is contested.
The court's ballot-title jurisprudence balances thoroughness and brevity. The title must disclose "essential facts" but cannot be so long that the average voter cannot read it within the polling-place time limit. Length is "a consideration" even though "neither the length nor complexity of the ballot title should be a controlling factor" (Dust v. Riviere).
Mr. Emigh's repeated submissions are a teaching example for would-be initiative sponsors. Without experienced drafting help, complex proposals tend to develop the same kinds of structural problems and accumulate rejection letters rather than ballot placement.
Citations and references
Constitution and statutes:
- Ark. Const. art. 5 § 1
- Ark. Code Ann. § 7-9-107
- Ark. Code Ann. §§ 3-8-701 et seq. (ballot question committees)
- Ark. Code Ann. §§ 7-9-401 et seq. (ballot question committees)
Cases (all Arkansas Supreme Court):
- Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988) (popular name as voter label)
- Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982) (706-word ballot title struck as too complex)
- Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
- Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
- 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)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
Prior AG opinions on the same series:
- Op. Att'y Gen. 2016-099 (popular name standards)
- Op. Att'y Gen. 2017-016 (earlier Emigh submission)
- Op. Att'y Gen. 2017-029 (earlier Emigh submission)
Source
Original opinion text
Opinion No. 2017-042
April 17, 2017
Barry Emigh, Sponsor
1104 West Seventh Street
Hot Springs, AR 71913-4225
Dear Mr. Emigh:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
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 constitutional amendment.
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
constitutional 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
323 CENTER. STREET, SUITE 200 · LITTLE ROCK, AR.KANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
AR.KANSASAG.GOV Barry Emigh, Sponsor
Opinion No. 2017-042
Page 2
law,"1 this office will not require that a measure's proponents acknowledge in the
ballot title any possible constitutional infirmities.2 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 proposal.
The purpose of my review and certification is to ensure that the popular name and
ballot title honestl~, intelligibly, and fairly set forth the purpose of the proposed
amendment or 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
An Amendment to the Arkansas Constitution
Legalizing Gambling to the Fairplay Holdings Ballot Question Committee
Member(s) with the Sale, Service, and Complimentary Service of Alcoholic
Beverages as a Municipal, and or [sic] County, Ballot Measure
Ballot Title
An amendment to the Arkansas Constitution. Each person, or
person not an individual, named as a director, officer, and or [sic]
member with the Fairplay Holdings Ballot Question Committee as
filed with the Arkansas Ethics Commission shall be named a
Fairplay Holdings BQC Member. Under Article Five of the
Arkansas State Constitution for this purpose only a Fairplay
1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326
Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139
(1992).
2
As part of my review, however, I may address constitutional concerns for consideration by the
measure's proponents.
3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). Barry Emigh, Sponsor
Opinion No. 2017-042
Page 3
Holdings BQC member shall be authorized to initiate a ballot
measure to license not more, nor less, than two (2) businesses to
operate gambling which may be operated twenty for [sic] (24) hours
a day, seven (7) days a week, with the sale, service, and
complimentary service of alcoholic beverages during the time
'gambling' is operated within the structure used to operate
'gambling' within any number of municipalities with a population
greater than twenty eight thousand people (28,000), and or [sic] any
number of counties, where the sale, and service, of alcoholic
beverages is licensed by the Alcoholic Beverage Control Board
within those jurisdictions. The ballot measure may be brought
before the qualified electors time, and time, again at each general
election authorizing more than two (2) person(s), or businesses, to
operate 'gambling' within the same jurisdiction. Immediately upon,
but not more, nor less, than sixty (60) days after, a favorable ballot
measure the Arkansas Racing Commission shall be required to
accept the applications from only the Fairplay Holdings BQC
members. After a criminal investigation by the Arkansas State
Police Department the Arkansas Racing Commission shall issue
only those eligible Fairplay Holdings BQC members a gambling
license. One hundred and eighty (180) days after a favorable ballot
measure the Arkansas Racing Commission shall be required to issue
any unissued gambling license to the public. The Arkansas Racing
Commission shall be authorized to: regulate 'gambling'; prohibit the
issue, transfer, and revoke a gambling license for felony convictions
to be determined by the Arkansas Racing Commission; prohibit a
monopoly on gambling; shall be required to collect an annual
gambling license fee of seventy two [sic] thousand ($72,000) dollars
for each gambling license; collect a fifty ($50) dollar permit fee
every four (4) months for each slot machine; collect a sixty ($60)
dollar permit fee every four (4) months for each game table; pay the
city where 'gambling' is operated half (1/2) the permit fee from any
slot machine and game table collected within that jurisdiction; pay
the county where 'gambling' is operated solely within that county
half (1/2) the permit fee from any slot machine and game table
collected within that jurisdiction; and reissue any revoked gambling
license. The Arkansas State Police Department shall be required to
do a criminal investigation on any person(s), and person(s)
connected to a business, prior to issuing, or transferring, a gambling
license. The Alcoholic Beverage Control Board shall be required to:
license a gambling operator to sell, serve, and serve complimentary Barry Emigh, Sponsor
Opinion No. 2017-042
Page4
alcoholic beverages during the time 'gambling' is operated within
the structure used to operate 'gambling'; collect an annual alcoholic
beverage control license fee of eighteen thousand ($18,000) dollars
for each alcoholic beverage control license issued; and authorized to
regulate the sale, service, and complimentary service of alcoholic
beverages. The General Assembly by a two third [sic] vote of all its
members shall be empowered to increase, or decrease, the gaming
tax on the 'gross income' from 'gambling' by not more than three
quarters of one (3/4%) percent, and fees as provided in this
amendment by not more than two (2%) percent, during any one
fiscal session of the General Assembly. The General Assembly shall
be empowered to tax any amount of winnings won by any person as
taxable income. The Department of Finance and Administration
shall be required to: collect a gaming tax of twenty one [sic] (21%)
percent from the 'gross income' from 'gambling'; pay the city where
'gambling' is operated one third [sic] (1/3) of the gaming tax; pay
the county where 'gambling' is operated in a city within that county
one third ( 1/3) of the gaming tax; and pay the county where
'gambling' is operated solely within a county half (1/2) of the
gaming tax. Unless otherwise provided in this amendment there
shall be no other tax on the income earned from gambling other than
a personal income tax, nor any other fee, nor permit, on any slot
machine, and or [sic] game table. The provisions of this amendment
shall not effect [sic] Oaklawn Race Track in Garland County, nor
[sic] Southland Race Park in Crittenden County. As used in this
amendment: 'gambling' means any pay to play game of chance with
a winner, and a loser, to include cards, dice, roulette and slot
machines; 'gross income' means the amount of money earned after
any, and all, winnings are paid as a loss by the gambling operator.
The provisions of this amendment are severable, and if any should
be held invalid, the remainder shall stand. The provisions of this
amendment are self executing, and all its provisions shall be treated
as mandatory, but laws may be enacted to facilitate its operation.
All laws and constitutional provisions which [sic] conflict with this
amendment are repealed to the extent they conflict with this
amendment. The provisions of this amendment shall take effect on
January 1st, 2019. Barry Emigh, Sponsor
Opinion No. 2017-042
Page 5
RESPONSE
The popular name is primarily a useful legislative device. 4 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. 5 The popular name is to be considered together with the ballot title in
determining the ballot title's sufficiency.6
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. 7
According to the Court, a ballot title will not be legally sufficient unless it
"adequately inform[s]" the voters of the contents of a proposed amendment or act
so that they can make a "reasoned decision in the voting booth."8 A ballot title's
failure to "honestly and accurately reflect what is contained in the proposed [act
or] Amendment" may lead the Court to conclude that the "omission is
significant. "9 The Court has also disa~proved the use of terms that are "technical
and not readily understood by voters." 0 Without a definition of such terms in the
ballot title, the title may be deemed insufficient. 11
Additionally, if information omitted from the ballot title is an "essential fact which
would give the voter serious ground for reflection, it must be disclosed." 12 At the
same time, however, a ballot title must be brief and concise; 13 otherwise voters
4 Pajfordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
5 See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229
Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see
note 16 infra.
6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
7 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
8 Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
9 Id., 2016 Ark. 337 at 9, 500 S.W.3d at 159.
10 Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
11 Id., 500 S.W.3d at 167.
12 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
13 See Ark. Code Ann. § 7-9-107(b). Barry Emigh, Sponsor
Opinion No. 2017-042
Page 6
could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths
when other voters are waiting in line.14 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. 15 The title, however, must be
"free of any misleading tendency whether by amflification, omission, or fallacy,
and it must not be tinged with partisan coloring."1 The ballot title must be honest
and impartial, 17 and it must convey an intelligible idea of the scope and
significance of a proposed change in the law.18
Furthermore, the Court has confirmed that a proposed measure cannot be approved
if the text of the proposal itself contributes to confusion and disconnect between
the language in the popular name and the ballot title and the language in the
proposed measure. 19 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."20 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 proposal itself, and (2)
conformance of the popular name and ballot title to the newly worded proposal.
It is my opinion, based on the above precepts and precedents, that your proposed
popular name and ballot title will not satisfy the Arkansas Supreme Court's
standards. A number of changes to both are necessary to meet the Court's
standards and to more fully and correctly summarize your proposal. I cannot at
14 Bailey, 318 Ark. at 284, 884 S.W.2d at 944.
15 Id. at 293, 844 S.W.2d at 946-47.
16 Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by
the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v.
Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the
impression that the proponents of the proposed amendment wish to convey of the activity
represented by the words." (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884
S.W.2d 605, 610 (1994)).
17 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
18 Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations
omitted).
19 Cf Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
20 Id. Barry Emigh, Sponsor
Opinion No. 2017-042
Page 7
this time, however, determine precisely what changes to the ballot title are
necessary to fully and correctly summarize your proposal. I consequently cannot
attempt to substitute and certify, pursuant to Ark. Code Ann. § 7-9-107(b), a more
suitable and correct popular name and ballot title. There continue to be problems
with the fundamentals of the text of your proposed amendment, including its
length and complexity, which are matters I have raised to you before and have said
must be addressed. In light of these problems, I have not conducted a thorough,
point-by-point review of the entire text of your proposal for ambiguities, internal
inconsistencies, misleading language, or other potential problems it may contain.
You must address the fundamental problems before I can proceed with a more
thorough review.
- Popular Name
Your popular name, in my opinion, is too long to be considered a "useful
legislative device."21 As I explained to you in an earlier opinion,22 the popular
name must be a short, descriptive reference for your proposed measure. "The
popular name is designed to make it easy for voters to discuss the proposal prior to
the election, by giving them a label to identify it. "23 The proposed popular name
for your most recent submission fails to meet this standard. Moreover, the
wording of your proposed popular name is quite confusing, making it practically
impossible to distill your proposed amendment to a short, descriptive label that
would enable voters to easily identify it for discussion purposes. As such, I cannot
at this point substitute a more suitable and appropriate popular name. - Ballot Title
Again, as with your two most recent submissions, 24 your ballot title appears overly
long and complicated. Despite the Court's willingness to give Amendment 725 a
21 See text accompanying note 4 supra.
22 Op. Att'y Gen. 2016-099.
23 Gaines v. McCuen, 296 Ark. 513, 516, 758 S.W.2d 403, 404 (1988).
24 Ops. Att'y Gen. 2017-029 and 2017-016.
25 Codified at Ark. Const. art. 5, § 1 (Supp. 2015) (permitting citizen-initiated acts and
constitutional amendments). Barry Emigh, Sponsor
Opinion No. 2017-042
Page 8
liberal construction when determining the sufficiency of a ballot title, 26 "that does
not mean that liberality knows no bounds or [that] common sense has no place in
the matter."27 The Court has further pronounced:
While neither the length nor complexity of the ballot title should be
a controlling factor, it is a consideration. The great majority of
Arkansas voters are limited, as a practical matter, in the amount of
time that can be spent considering such a proposal. Furthermore,
common sense requires that we ask whether the average voter can
make an intelligent considerate decision based on the ballot title. 28
While I note that you have shortened your ballot title to 845 words, down from the
990 words in your previous submission, it remains my opinion that the ballot title
you have submitted would not meet the Court's standards for intelligent
consideration by the voters. This is largely a consequence of the confusing nature
of your proposal's text. I will point out two critical, threshold problems with the
text of your measure that preclude me from crafting a suitable substitute ballot
title.
The first problem concerns your reference to the "Fairplay Holdings Ballot
Question Committee" and its members. Your proposal is wholly bereft of
specifics as to how this committee is formed and who has the authority to form it
or amend its organizing documents. You have not referenced any existing state
law regarding ballot question committees, 29 making it impossible to know for sure
what precisely this ballot question committee is. Moreover, your proposal lacks
specifics as to how, or even if, the voters would be able to ascertain who are the
members of this ballot question committee prior to casting their votes. This latter
issue is underscored by language in your text that suggests that the directors,
officers, and members could change right up to the eleventh hour prior to the
election via amendment of the committee's statement of organization with the
Arkansas Ethics Commission.
26 See Becker, note 7 supra, 270 Ark. at 225, 604 S.W.2d at 558.
27 Dust v. Riviere, 277 Ark. 1, 6, 638 S.W.2d 663, 666 (1982).
28 Id. (holding that the ballot title in that case, which was 706-words long, was "so complex,
detailed, lengthy, misleading and confusing that the Arkansas voter cannot intelligently make a
choice based on the title.").
29 See Ark. Code Ann.§§ 3-8-701 et seq. (Supp. 2015) and 7-9-401 et seq. (Supp. 2015). Barry Emigh, Sponsor
Opinion No. 2017-042
Page 9
The second threshold problem concerns the initiation of these gambling ballot
measures your proposed measure contemplates. Your proposal states that only a
Fairplay Holdings Ballot Question Committee member "shall be authorized to
initiate" a city or county ballot measure regarding gambling, but it is unclear how
this initiation would occur-whether it's through a simple declaration, via a
petition process, or some other unknown process. I note that your proposal
references Article 5 of the Arkansas Constitution, but it mentions no specific
section within Article 5. Even if one were to assume you meant to reference
Article 5, Section 1, such a reference, without more, would not be sufficient
clarification to detail precisely how this "initiation" process takes place.
In my opinion, these threshold issues are fundamental to your measure because the
remainder of your proposal flows from them. As such, they must be significantly
clarified and set out in your proposal with specificity so that they may be
adequately summarized in a ballot title. Without sufficient clarification of these
matters, I cannot proceed with a more thorough review of your proposed
amendment.
I must also once again reiterate that any revision of your proposal, should you
choose to so revise it, must be seriously undertaken with a studied effort to
thoroughly clarify, and ideally simplify, your proposed amendment so that a
legally sufficient ballot title may be crafted. Amending the Arkansas Constitution
is a very serious matter, as I have said before, and the Arkansas Supreme Court
holds popular names and ballot titles of proposed constitutional amendments to a
standard that is commensurate with this seriousness.30
CONCLUSION
The problems noted above are not necessarily all the problems 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 in light of these problems. Further, additional issues 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, propriety, 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
30 Op. Att'y Gen. 2016-099. Barry Emigh, Sponsor
Opinion No. 2017-042
Page 10
electorate. I once again must urge you, as I have in my previous six opinions to
you regarding this same proposal, to seek the advice or assistance of someone
experienced in drafting legislation, editing legal documents, or both.
Based on what has been submitted, my statutory duty is to reject your proposed
popular name and ballot title for the foregoing reasons.31
Attorney General
Enclosure
31 Ark. Code Ann. § 7-9-107(c). Popular Name
AN AMENDMENT TO THE ARKANSAS CONSTITUTION LEGALIZING GAMBLING TO THE FAIRPIAY
HOLDINGS BALLOT QUESTION COMMITfEE MEMBER(S) WITH THE SALE, SERVICE, AND COMPLIMENTARY
SERVICE OF ALCOHOLIC BEVERAGES AS A MUNICIPAL, AND OR COUNTY, BALLOT MEASURE.
Ballot Title
AN AMENDMENT TO THE ARKANSAS CONSTITUTION. EACH PERSON, OR PERSON NOT AN
INDIVIDUAL, NAMED AS A DIRECTOR, OFFICER, AND OR MEMBER WITH THE FAIRPIAY HOLDINGS
BALLOT QUESTION COMMITTEE AS FILED WITH THE ARKANSAS ETHICS COMMISSION SHALL BE NAMED A
FAIRPIAY HOLDINGS BQC MEMBER. UNDER ARTICLE FIVE OF THE ARKANSAS STATE CONSTITUTION
FOR THIS PURPOSE ONLY A FAIRPIAY HOLDINGS BQC MEMBER SHALL BE AUTHORIZED TO INITIATE A
BALLOT MEASURE TO LICENSE NOT MORE, NOR LESS, THAN 1WO (2) BUSINESSES TO OPERATE GAMBLING
WHICH MAYBE OPERATED 1WENTY FOR (24) HOURS A DAY, SEVEN (7) DAYS A WEEK, WITH THE SALE,
SERVICE, AND COMPLIMENTARY SERVICE OF ALCOHOLIC BEVERAGES DURING THE TIME 'GAMBLING' IS
OPERATED WITHIN THE STRUCTURE USED TO OPERATE 'GAMBLING' WITHIN ANY NUMBER OF
MUNICIPALITIES WITH A POPULATION GREATER THAN 1WENTY EIGHT THOUSAND PEOPLE (28,000), AND
OR ANY NUMBER OF COUNTIES, WHERE THE SALE, AND SERVICE, OF ALCOHOLIC BEVERAGES IS
LICENSED BY THE ALCOHOLIC BEVERAGE CONTROL BOARD WITHIN THOSE JURISDICTIONS. THE
BALLOT MEASURE MAY BE BROUGHT BEFORE THE QUALIFIED ELECTORS TIME, AND TIME, AGAIN AT
EACH GENERAL ELECTION AUTHORIZING MORE THAN 1WO (2) PERSON(S), OR BUSINESSES, TO OPERATE
'GAMBLING' WITHIN THE SAME JURISDICTION. IMMEDIATELY UPON, BUT NOT MORE, NOR LESS, THAN
SIXTY (60) DAYS AFTER, A FAVORABLE BALLOT MEASURE THE ARKANSAS RACING COMMISSION SHALL BE
REQUIREDTOACCEPTTHEAPPLICATIONSFROMONLYTHEFAIRPIAYHOLDINGSBQCMEMBERS.
AFTERA CRIMINAL INVESTIGATION BY THE ARKANSAS STATE POLICE DEPARTMENT THE ARKANSAS
RACING COMMISSION SHALL ISSUE ONLY THOSE ELIGIBLE FAIRPIAY HOLDINGS BQC MEMBERS A
GAMBLING LICENSE. ONE HUNDRED AND EIGHTY (180) DAYS AFTERA FAVORABLE BALLOT MEASURE
THE ARKANSAS RACING COMMISSION SHALL BE REQUIRED TO ISSUE ANYUNISSUED GAMBLING LICENSE
TO THE PUBLIC. THE ARKANSAS RACING COMMISSION SHALL BE AUTHORIZED TO: REGULATE
'GAMBLING'; PROHIBIT THE ISSUE, TRANSFER, AND REVOKE A GAMBLING LICENSE FOR FELONY
CONVICTIONS TO BE DETERMINED BY THE ARKANSAS RACING COMMISSION; PROHIBIT A MONOPOLY
ON GAMBLING; SHALL BE REQUIRED TO COLLECT AN ANNUAL GAMBLING LICENSE FEE OF SEVENTY
1WO THOUSAND ($72,000) DOLIARS FOR EACH GAMBLING LICENSE; COLLECT A FIFTY ($50) DOLLAR
PERMIT FEE EVERY FOUR (4) MONTHS FOR EACH SLOT MACHINE; COLLECT A SIXTY ($60) DOLLAR
PERMIT FEE EVERY FOUR (4) MONTHS FOR EACH GAME TABLE; PAY THE CITY WHERE 'GAMBLING' IS
OPERATED HALF (1/2) THE PERMIT FEE FROM ANY SLOT MACHINE AND GAME TABLE COLLECTED WITHIN
THAT JURISDICTION; PAY THE COUNTY WHERE 'GAMBLING' IS OPERATED SOLELY WITHIN THAT
COUNTY HALF (1/2) THE PERMIT FEE FROM ANY SLOT MACHINE AND GAME TABLE COLLECTED WITHIN
THAT JURISDICTION; AND REISSUE ANY REVOKED GAMBLING LICENSE. THE ARKANSAS STATE
POLICE DEPARTMENT SHALL BE REQUIRED TO DO A CRIMINAL INVESTIGATION ON ANY PERSON(S), AND
PERSON(S) CONNECTED TO A BUSINESS, PRIOR TO ISSUING, OR TRANSFERRING, A GAMBLING LICENSE.
THE ALCOHOLIC BEVERAGE CONTROL BOARD SHALL BE REQUIRED TO: LICENSE A GAMBLING
OPERATOR TO SELL, SERVE, AND SERVE COMPLIMENTARY ALCOHOLIC BEVERAGES DURING THE TIME
'GAMBLING' IS OPERATED WITHIN THE STRUCTURE USED TO OPERATE 'GAMBLING'; COLLECT AN
ANNUAL ALCOHOLIC BEVERAGE CONTROL LICENSE FEE OF EIGHTEEN THOUSAND ($18,000.) DOLIARS
FOR EACH ALCOHOLIC BEVERAGE CONTROL LICENSE ISSUED; AND AUTHORIZED TO REGULATE THE
SALE, SERVICE, AND COMPLIMENTARY SERVICE OF ALCOHOLIC BEVERAGES. THE GENERAL ASSEMBLY
BY A 1WO THIRD VOTE OF ALL ITS MEMBERS SHALL BE EMPOWERED TO INCREASE, OR DECREASE, THE
GAMING TAX ON THE 'GROSS INCOME' FROM 'GAMBLING' BY NOT MORE THAN THREE QUARTERS OF ONE
(3/ 4%) PERCENT, AND FEES AS PROVIDED IN THIS AMENDMENT BY NOT MORE THAN 1WO (2%) PERCENT,
DURING ANY ONE FISCAL SESSION OF THE GENERAL ASSEMBLY. THE GENERAL ASSEMBLY SHALL BE
EMPOWERED TO TAX ANY AMOUNT OF WINNINGS WON BY ANY PERSON AS TAXABLE INCOME. THE
DEPARTMENT OF FINANCE AND ADMINISTRATION SHALL BE REQUIRED TO: COLLECT A GAMING TAX OF
1WENTY ONE (21%) PERCENT FROM THE 'GROSS INCOME' FROM 'GAMBLING'; PAY THE CITY WHERE
'GAMBLING' IS OPERATED ONE THIRD (1/3) OF THE GAMING TAX; PAY THE COUNTY WHERE 'GAMBLING'
IS OPERATED IN ACITYWITHINTHATCOUNTYONE THIRD (1/3) OF THE GAMING TAX; AND PAY THE
COUNTY WHERE 'GAMBLING' IS OPERATED SOLELY WITHIN A COUNTY HALF (1/2) OF THE GAMING TAX.
UNLESS OTHERWISE PROVIDED IN THIS AMENDMENT THERE SHALL BE NO OTHER TAX ON THE INCOME
EARNED FROM GAMBLING OTHER THAN A PERSONAL INCOME TAX, NOR ANY OTHER FEE, NOR PERMIT,
ON ANY SLOT MACHINE, AND OR GAME TABLE. THE PROVISIONS OF THIS AMENDMENT SHALL NOT
EFFECT OAKIAWN RACE TRACK IN GARIAND COUNTY, NOR SOUTHLAND RACE PARK IN CRITTENDEN
COUNTY. AS USED IN THIS AMENDMENT: 'GAMBLING' MEANS ANY PAY TO PIAY GAME OF CHANCE
WITH A WINNER, AND A LOSER, TO INCLUDE CARDS, DICE, ROULETTE AND SLOT MACHINES; 'GROSS
INCOME' MEANS THE AMOUNT OF MONEY EARNED AFTER ANY, AND ALL, WINNINGS ARE PAID AS A LOSS
BY THE GAMBLING OPERATOR. THE PROVISIONS OF THIS AMENDMENT ARE SEVERABLE, AND IF ANY
SHOULD BE HELD INVALID, THE REMAINDER SHALL STAND. THE PROVISIONS OF THIS AMENDMENT
ARE SELF EXECUTING, AND ALL ITS PROVISIONS SHALL BE TREATED AS MANDATORY, BUT IAWS MAY BE
ENACTED TO FACILITATE ITS OPERATION. ALL IAWS AND CONSTITUTIONAL PROVISIONS WHICH
CONFLICT WITH THIS AMENDMENT ARE REPEALED TO THE EXTENT THEY CONFLICT WITH THIS
AMENDMENT. THE PROVISIONS OF THIS AMENDMENT SHALL TAKE EFFECT ON JANUARY 1ST, 2019.
An Amendment to the Arkansas Constitution. Section 1: Fairplay Holdings Ballot Question Committee (BQC) Members. - Within thirty (30) days after the effective date of this Amendment the Arkansas Ethics Commission shall be required to
provide the Arkansas Racing Commission with a full list of those named as a director, officer, and or member on the statement of
organization, or amended statement of organization, for the Ballot Question Committee named Fairplay Holdings as last filed with
the Arkansas Ethics Commission before the general election at which this Amendment appeared. - For the purpose of this Amendment each person named as a director, officer, and or member being a person, or person not an
individual, listed with the Fairplay Holdings Ballot Question Committee for the qualification, and passage, of this Amendment shall
each be called a Fairplay Holdings BQC member. - The authority of each person, or person not an individual, being named as a Fairplay Holdings BQC member as provided in this
Amendment shall be transferable with, or without, sale from the name of a person, or person not an individual, to the name of
another person, or person not an individual, and so on. - For the purpose of this Amendment any name changed shall still be called a Fairplay Holdings BQC member.
- Unless otherwise provided in this Amendment the Arkansas Racing Commission shall be required to make any, and all, rules,
regulations, and guidelines on the transfer of a Fairplay Holdings BQC member name.
Section 2: Gambling as a Local Ballot Measure. - Under Article Five of the Arkansas State Constitution for the purpose of this Amendment.
(a). Only a Fairplay Holdings BQC member shall be authorized to initiate a municipal, and or county, 'ballot measure' to
license not more, nor less, than two (2) businesses to operate gambling which may be operated twenty four (24) hours a day, seven
(7) days a week, at the discretion of the gambling operator with the sale, service, and complimentary service of open alcoholic
beverages to the public during the time gambling is operated within the structure used to operate gambling.
(b). Within any number of municipalities with a population greater than twenty eight thousand (28,000) people, and or
within any number of counties.
(c). Where the sale of alcoholic beverages of any kind is licensed by the Alcoholic Beverage Control Board within those
jurisdictions. - The 'ballot measure', as provided in part 1,1(a)(b)(c) of this Section, may be initiated time, and time, again authorizing more
than two (2) person(s), or businesses, to be licensed to operate 'gambling' within the same jurisdiction.
Section J: Issuance of a Gambling License - Unless otherv.1se provided in this Amend..'Tient the Arkansas Racing Commission shall be required to make any, and all, rules,
regulations, and guidelines necessary to facilitate the application for, issue, reissue, and transfer of, a 'gambling license' to include,
but not limited to, prohibiting any person convicted of a felony crime from operating, and or from being connected to any business
operating, 'gambling'. - The Arkansas Racing Commission shall be authorized with the discretion to determine which felony crimes, and what level, or
grade, of a felony crime, shall prohibit a person from operating, and or from being connected to any business operating, 'gambling'. - Immediately upon, but not more, nor less, than sixty (60) days after, the conclusion of a favorable 'ballot measure', as
provided in Section 2 of this Amendment, the Arkansas Racing Commission shall be required to accept the application(s) from only
the Fairplay Holdings BQC member(s) to license 'gambling' within that respective jurisdiction at that time.
(a). Sixty one (61) days after the conclusion of a favorable 'ballot measure' the Arkansas Racing Commission shall be required
without delay to submit the application(s) of those Fairplay Holdings BQC members to the Arkansas State Police Department for a
criminal investigation.
(b). The Arkansas State Police Department shall be required within ninety ( 90) days to provide the Arkansas Racing
Commission with a criminal investigation on any person(s), and any, and all, person(s) connected to a business, before a 'gambling
license' shall be issued by the Arkansas Racing Commission.
(c). Any person convicted of a felony crime, as provided in parts 1, 2 of this Section, shall be prohibited from operating, and
or prohibited from being connected to any business operating, 'gambling'.
(d). After a criminal investigation the Arkansas Racing Commission shall be required without delay to issue the 'gambling
licenses' to those Fairplay Holdings BQC members cleared of any felony convictions, as provided in parts 1, 2, 3(b)(c) of this Section.
If, there are more than two Fairplay Holdings BQC members applying for both the gambling licenses, as provided in part 1(a) of
Section 2 of this Amendment, the Arkansas Racing Commission shall be required without delay to issue the gambling licenses by a
lottery drawing to those Fairplay Holdings BQC members cleared of any felony convictions, as provided in parts 1, 2 of this Section. - Unless otherwise provided in this Amendment one hundred and eighty (180) days after the conclusion of a favorable 'ballot
measure' the Arkansas Racing Commission shall be required without delay to issue to any person(s), or business, any 'gambling
license' not issued to a Fairplay Holdings BQC member.
Section 4: Gambling Regulations. - Unless otherwise provided in this Amendment the Arkansas Racing Commission shall be authorized with the discretion to
regulate 'gambling' to include, but not limited to, age restriction, and criminal back ground checks of employees. - The Arkansas Racing Commission shall be authorized with the discretion to revoke a 'gambling license' issued to any person,
and or issued to a business connected to any person, upon conviction of a felony crime, as provided in part 1, 2 of Section 3 of this
Amendment.
(a). The Arkansas Racing Commission shall be required to issue without delay any revoked 'gambling license'. - The Arkansas Racing Commission shall be authorized to prohibit any monopoly on 'gambling'.
- The Arkansas Racing Commission shall not be authorized to limit the amount of any wager, or bet, nor the number of slot
machines, and or 'game tables', operated by a 'gambling operator' except by room size, aisle width, and access to emergency exits for
safety purposes.
Section 5: Licensed Gambling. - Any person(s), or business, being the 'gambling operator' upon licensing by the Arkansas Racing Commision shall be legally
authorized to operate 'gambling' as defined herein twenty four (24) hours a day, seven (7) days a week, at the discretion of the
'gambling operator' with the sale, service, and complimentary service of alcoholic beverages during the time 'gambling' is operated within the one 'structure' used by that 'gambling operator' to operate 'gambling' within the jurisdiction where 'gambling' was
approved by the qualified electors as a 'ballot measure'. - Within ten (10) days from the date of issue, or transfer, of a 'gambling license' with a written notice by the licensed 'gambling
operator' the Arkansas Racing Commission shall be required to uspend the effective date of a 'gamblillg License' without cost, or fee,
up to but not more than, two hundred and fourty (240) days to allow that 'gambling operator' time to find a location within
applicable zoning laws and or to set up the gambling operation. No 'gambling' of any kind, by any name, shall be operated by the
'gambling operator' during that suspended period of time. - The 'gambling license' upon issue by the Arkansas Racing Commission shall be transferable with, or without, sale from the
'gambling operator' to any person(s), or business, and from them, and so on. - Any business licensed to operate 'gambling' with the sale, service, and complimentary service of open alcoholic beverages to
the public shall be zoned in the same manner as any, and all, other businesses selling, and serving, open alcoholic beverages to the
public. - A 'gambling operator' may voluntarily reliquish a 'gambling license' to the Arkansas Racing Commission without
compensation; thereby, avoiding any further licensing fees, as provided in parts 2(a), 3 of Section 8 of this Amendment. - The Arkansas Racing Commission shall be required to reissue without delay any relinguished 'gambling license'.
Section 6: Licensed Alcoholic Beverages Sales and Service. - The Alcoholic Beverage Control Board shall be required to immediately issue the 'gambling operator' upon issue, or transfer, of
a 'gambling license', as provided in parts 1, 3 of Section 5 of this Amendment, an 'alcoholic beverage control license' to legally sell,
serve, and serve complimentary open alcoholic beverages to the public during the time 'gambling' is operated within the 'structure'
used to operate 'gambling'. - Within ten (10) days upon issue, or transfer, of a 'gambling license' with a written notice by the 'gambling operator' the
Alcoholic Beverage Control Board shall be required to suspend the effective date of an 'aJcoholic Beverage Control License' without
cost, or fee, to allow that 'gambling operator' time to find a location within applicable zoning laws, and or to set up the gambling
operation. No alcoholic beverage of any kind, by any name, shall be sold, served, nor provided by the 'gambling operator' during
that suspended period of time. - The Alcoholic Bevetage Control Board shall be required to transfer the 'alcoholic beverage control license' with the 'gambling
license'. - Unless otherwise provided in this Amendment the Alcoholic Beverage Control Board shall be authorized to regulate the sale,
service, and complimentary service of alcoholic beverages sold, and served, within the structure used to operate 'gambling'.
Section 7: The General Assembly. - The General Assembly shall be required to fund the Arkansas Racing Commission, the Alcoholic Beverage Control Board, the
Department of Finance and Administration, the Arkansas Ethics Commission, and the Arkansas State Police Department as is
necessary to facilitate the operation of this Amendment. - The General Assembly shall be empowered by a two third vote, or roll call, of all its members in each House to increase, or
decrease, the gaming tax on the 'gross income' from 'gambling', as provided in part 1(a) of Section 8 of this Amendment, by not more
than three quarters of one (3/ 4%) percent during any one fiscal ession of the General Assembly. - The General Assembly shall be empowered by a two third vote, or roll call, of all its members in eac]J House to increase, or
decrease, the fees, as provided in parts 2(a)(b)(c), 3, 4 of Section 8 of this Amendment, by not more than two (2%) percent during
any one fiscal session of the General Assembly. - The General Assembly shall be empowered to tax any amount of winnings won by any person as taxable income in the same
manner as all other personal income. - The General Assembly shall be required to make any, and aH, laws necessary to facilitate the operation of this Amendment.
Section 8: Gambling Taxes, Fees, and Permits. - Unless otherwise provided in this Amendment the Department of Finance and Administration shall be required to do as
follows:
(a). Collect from each 'gambling operator' a gaming tax of twenty one (21%) percent from the 'gross income' from 'gambling'.
(b). Pay the city where 'gambling' is operated in that city one third (1/3) of the gaming tax from the 'gross income' from
gambling collected from that jurisdiction.
(c). Pay the county where 'gambling' is operated in a city within that county one third (1/3) of the gaming tax from the 'gross
income' from gambling collected from that jurisdiction.
(d). Pay the county where 'gambling' is operated solely within the jurisdiction of that county half (1/2) the gaming tax from
the 'gross income' collected from that jurisdiction.
(e). Collect from each 'gambling operator' a personal income tax to be with held on any, and all, winnings won by any person
from 'gambling'.
(f). Establish the time schedules, and guidelines, for the payment of any tax, fee, and personal income tax with holding. - Unless otherwise provided in this Amendment the Arkansas Racing Commission shall be required to do as follows:
(a). Collect an annual fee of seventy two thousand ($72,000) dollars for each 'gambling license' issued.
(b). Collect from each 'gambling operator' a permit fee of fifty ($50) dollars every four (4) months for each slot machine of
any kind, by any name, used by that 'gambling operator'.
(c). Collect from each 'gambling operator' a permit fee of sixty ($60) dollars every four (4) months for each 'game table' of
any kind, by any name, used by that 'gambling operator'.
(d). Pay the city where 'gambling' is operated in that city half (1/2) the permit fee on any slot machine, and 'game table',
collected from thatjurisdiction.
(e). Pay the county where 'gambling' is operated solely within the jurisdiction of that county half (1/2) the permit fee on
any slot machine, and 'game table', co.llectcd from that jurisdiction. - The Alcoholic Beverage Control Board shall be required to collect an annual fee of eighteen thousand ($18,000) dollars for
each 'alcoholic beverage control license' issued to a 'gambling operator'. - The Arkansas State Police Department shall be required to collect a non-refundable criminal investigation fee of thirty five hundred ($3,500) dollars from any person(s), or business, requiring a criminal investigation for issuance, or transfer, of a 'gambling
license'. - Unless otherwise provided in this Amendment there shall not be any tax on the income earned from 'gambling' other than a
personal income tax, nor any other fees, nor permits, of any kind, by any name, on any slot machine, 'game table', and equipment
used to operate 'gambling' to include, but not limited to cards, and dice.
Section 9: Exempting Oaklawn and Southland.
The provisions of this Amendment shall in no manner effect Oaklawn Race Track in Garland County, nor Southland Race Park
in Crittenden County.
Section 10: Legalized Gambling.
Any, and all, criminal offenses relating to 'gambling' shall be waived for the purpose of this Amendment to include, but not
limited to, 5-66-103, 108 et seq. 5-66-110, 55-66-112 on gambling houses, gambling devices, financing, betting, search warrants,
buildings and vessels, and card games.
Section 11: Definitions. - As used in this Amendment:
(a). 'alcoholic beverage control license' means the authorization from the Alcoholic Beverage Control Board to sell, serve,
and serve complimentary open alcoholic beverages of any kind, by any name, as allowed by the Alcoholic Beverage Control Board
during the time gambling is operated within the structure used to operate gambling.
(b). 'ballot measure' means the specific issue of gambling with the sale, service, and complimentary service of open alcoholic
beverages to the public requiring consent by the qualified electors within a pecified jurisdiction on an election ballot.
(c). 'gambling' means any pay to play game of chance with a winner, and a loser, to include, but not limited to, the use of
cards, dice, roulette wheels used in any way and slot machines of any kind, by any name, legally permitted under federal laws, rules,
and regulations.
(d). 'gambling operator' means any person(s), or business, licensed by the Arkansas Racing Commission to operate
gambling which may be operated twenty four (24) holll"S a day, seven (7) days a week, at the discretion of that business, and licensed
by the Alcoholic Beverage Control Board to sell, serve, and serve complimentary open alcoholic beverages to the public during the
time gambling is operated within the structure used to operate gambling within the jurisdiction of a city, or county, with ballot
approval of the electors.
(e). 'gambling license' means the authorization from the Arkansas Racing Commision for a person(s), or business, to operate
gambling within the structure used to operate gambling.
(f). 'game table' means one dealer, or game operator, with numerous players to include, but not limited to, cards, dice, and
roulette.
(g). 'gross income' means the amount of money earned from gambling after any, and all, winnings are paid as a loss from the
gambling operator.
(h). 'structure' means any building of any kind, of any size, with any number of floors, and or additions to that building, to
include any building, or structure, of any kind on water with enclosed passage ways attached to a building to be considered a single
structure.
Section 12: Severability.
The provisions of this Amendment are severable, and if any should be held invalid, the remainder shall stand.
Section 13: Self-Executing.
The provisions of this Amendment shall be self executing, and all its provisions shall be treated as mandatory, but laws may be
enacted to facilitate its operation.
Section 14: Application. - All laws, and constitutional provisions, which conflict with this Amendment are repealed to the extent they conflict with
this amendment.
(a). The provisions of this Amendment should be interpreted liberally with broad scope.
(b). The provisions of this Amendment shall take effect on January 1st, 2019.
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