Can an Arkansas city or county pass its own ordinance against drug possession, or has the state taken over the field?

Plain-English summary

Prosecuting Attorney Jeff Phillips of the Fifth Judicial District asked AG Leslie Rutledge whether the Uniform Controlled Substances Act (UCSA), Ark. Code Ann. § 5-64-101 et seq., preempts Arkansas cities and counties from passing local ordinances that prohibit the sale or possession of controlled substances. The answer split sharply between cities (clear) and counties (statutorily contradictory).

For cities. A city cannot create a criminal offense that is a felony under state law (Ark. Code Ann. § 14-43-603). But a city is explicitly authorized by Ark. Code Ann. § 14-55-501 to "prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor." So a city can pass an ordinance that criminalizes UCSA misdemeanor offenses. Penalties under such an ordinance must match the state ranges (Ark. Code Ann. § 14-55-502): a city cannot prescribe penalties greater than or less than those for the corresponding state misdemeanor. Ford v. City of Hot Springs, 294 Ark. 435, 743 S.W.2d 394 (1988), and Wright v. Burton, 279 Ark. 1, 648 S.W.2d 794 (1983), confirm those penalty boundaries.

For counties. Same first answer (no felonies), but the misdemeanor side runs into a statutory conflict.

Section 14-14-805(6) prohibits the enactment of "[a]ny legislative act that defines as an offense conduct made criminal by state law, that defines an offense as a felony, or that fixes the penalty or sentence for a misdemeanor in excess of [a fine of $1,000] for any one specified offense or violation, or double that sum for repetition." Read literally, this provision blocks county ordinances criminalizing any conduct already criminal under state law, including UCSA misdemeanors.

But Section 14-20-101(a) says the opposite: "A county is authorized to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor and to prescribe penalties for all offenses in violation of any ordinance of the county not greater nor less than the penalties prescribed for similar offenses against the laws of this state."

The statutes appear to conflict. Section 14-20-101 was enacted in 1975 (Act 130 of 1975, § 15). Section 14-14-805(6) was enacted in 1977 (Act 742 of 1977, § 72). Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993), supplies the rule that the later act controls if two acts conflict. The AG said § 14-14-805(6) would control if it repealed § 14-20-101 by implication.

But the same Court has cautioned in Hurt-Hoover Invests., LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696, that "a repeal by implication is not favored," and is "never allow[ed] except when there is such an invincible repugnancy between the two provisions that both cannot stand." Whether the two statutes can be harmonized has not been resolved by the Arkansas Supreme Court, and the AG's office has previously flagged the conflict in Ops. Att'y Gen. 2004-271, 2006-139, 99-328, 98-036, 96-028, and 90-008. The AG concluded that legislative clarification or a definitive judicial interpretation is needed.

For a county considering a controlled-substance ordinance, the opinion resolves the felony question: the county may not criminalize conduct that constitutes a felony. It leaves the misdemeanor question unresolved until legislative clarification or a definitive judicial interpretation.

Currency note

This opinion was issued in 2020. 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

Why is the city answer easy and the county answer hard?
Because the city statute (§ 14-55-501) explicitly authorizes misdemeanor ordinances and the felony bar (§ 14-43-603) is clear and uncontested. The county side has two statutes pointing in different directions: § 14-14-805(6) (no county ordinance criminalizing conduct made criminal by state law) and § 14-20-101 (county authorized to punish misdemeanors). Without a clean priority rule, the AG cannot answer definitively.

Why doesn't the rule that 'the later act controls' end the analysis?
Because the opinion also quotes the Arkansas Supreme Court's rule that repeal by implication is disfavored and allowed only when the provisions cannot stand together. The AG said the court must decide whether these two statutes can be read harmoniously.

What does this mean for a county considering a controlled-substance ordinance?
The county may not prohibit conduct that constitutes a felony under state law. The AG did not decide whether a county may prohibit conduct that is a state-law misdemeanor; she said that question requires legislative clarification or a definitive judicial interpretation.

Can a city use ordinance penalties to enhance state-law penalties for the same offense?
No. Both Ark. Code Ann. § 14-55-502 and the cited cases (Ford v. City of Hot Springs, Wright v. Burton) require city penalties to match the state range. Cities cannot make state misdemeanors more or less serious through their own ordinances.

Is the statutory conflict the AG identified actually new?
No. Footnote 9 cites several earlier AG opinions, including 2004-271, 2006-139, 99-328, 98-036, 96-028, and 90-008. This opinion says the conflict remains unresolved.

What's a 'controlled substance' under the UCSA?
The question describes substances "controlled by the State of Arkansas and listed on the List of Controlled Substances maintained and administered by the Arkansas Department of Health." The opinion addresses local authority to prohibit sale or possession of those substances; it does not classify particular drugs or penalties.

Background and statutory framework

Arkansas counties derive their legislative authority from Arkansas Constitution Amendment 55, § 1(a), which lets a county "exercise local legislative authority not denied by the Constitution or by law." That authority is statutorily limited by Ark. Code Ann. §§ 14-14-805 to -809 (Repl. 2013 and Supp. 2019).

Section 14-14-805(6) states that quorum courts cannot enact "[a]ny legislative act that defines as an offense conduct made criminal by state law, that defines an offense as a felony, or that fixes the penalty or sentence for a misdemeanor in excess of a fine of one thousand dollars ($1,000) for any one (1) specified offense or violation, or double that sum for repetition of the offense or violation."

Section 14-20-101(a), in contrast, says: "A county is authorized to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor and to prescribe penalties for all offenses in violation of any ordinance of the county not greater nor less than the penalties prescribed for similar offenses against the laws of this state."

The later enactment date would favor § 14-14-805(6) if that provision repealed § 14-20-101 by implication. The AG said only the court can decide whether they can be interpreted harmoniously.

For cities, the framework is cleaner. Ark. Code Ann. § 14-43-603 forbids cities from criminalizing felonies. Ark. Code Ann. § 14-55-501 authorizes them to punish misdemeanor conduct. Ark. Code Ann. § 14-55-502 limits penalties to the state range.

Citations

Statutes and constitutional provisions:

• Ark. Code Ann. § 5-64-101 et seq. (Uniform Controlled Substances Act)
• Ark. Code Ann. § 14-14-801(a) (Repl. 2013) (county legislative authority)
• Ark. Code Ann. §§ 14-14-805 to -809 (Repl. 2013 and Supp. 2019) (limits on county legislative authority)
• Ark. Code Ann. § 14-14-805(6) (no county ordinance criminalizing state-law conduct or making felonies)
• Ark. Code Ann. § 14-20-101(a) (Repl. 2013) (county authorization to punish misdemeanors)
• Ark. Code Ann. § 14-43-603 (Repl. 2013) (cities cannot declare felonies)
• Ark. Code Ann. § 14-55-501 (Repl. 1998) (city authorization to punish misdemeanors)
• Ark. Code Ann. § 14-55-502 (Repl. 1998) (city penalties must match state range)
• Ark. Const. amend. 55, § 1(a) (Repl. 2019) (county local legislative authority)
• Ark. Const. amend. 55, § 4 (quorum court powers as provided by law)

Cases:

• Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993) (later act controls when two acts conflict)
• Hurt-Hoover Invests., LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696 (no implied repeal absent invincible repugnancy)
• Ford v. City of Hot Springs, 294 Ark. 435, 743 S.W.2d 394 (1988) (city penalty matching state range)
• Wright v. Burton, 279 Ark. 1, 648 S.W.2d 794 (1983) (same)

Prior opinions referenced:

• Op. Att'y Gen. 2004-271 (county/state-law conflict noted)
• Ops. Att'y Gen. 2006-139, 99-328, 98-036, 96-028, 90-008 (same)

Source

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

Original opinion text

Opinion No. 2020-013
July 20, 2020
The Honorable Jeff Phillips
Prosecuting Attorney
Fifth Judicial District
P. O. Box 3080
Russellville, AR 72811

Dear Mr. Phillips:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion on the following question:

> Under Arkansas law, can a city or county pass an ordinance prohibiting the possession or sale of a controlled substance even though a detailed state statutory scheme, the Uniform Controlled Substances Act, found at Ark. Code Ann. § 5-64-101 et seq., has been codified? In other words, has the state Uniform Controlled Substances Act (Ark. Code Ann. § 5-64-101 et seq.) preempted cities and counties from passing ordinances prohibiting the sale or possession of substances controlled by the State of Arkansas and listed on the List of Controlled Substances maintained and administered by the Arkansas Department of Health?

RESPONSE

A county may not enact a criminal ordinance prohibiting conduct that constitutes a felony. There are two conflicting statutes governing a county's authority to pass ordinances prohibiting and punishing acts that are misdemeanors under state law. Absent legislative clarification, a definitive judicial interpretation is needed to resolve this conflict.

As for a city ordinance, a city may not enact a criminal ordinance prohibiting conduct that constitutes a felony. However, cities are explicitly authorized by state law to pass ordinances prohibiting and punishing acts that are misdemeanors under state law. The penalties fixed by any such city ordinance must fall within the state-prescribed minimums and maximums for the state misdemeanor offense.

DISCUSSION

With regard to a county ordinance, counties may "exercise local legislative authority not denied by the Constitution or by law." Several provisions of state law deny or limit county legislative authority. Particularly significant for purposes of your question, Ark. Code Ann. § 14-14-805 prohibits the enactment of any county ordinance that "defines as an offense conduct made criminal by state law":

> Each county quorum court in the State of Arkansas exercising local legislative authority is prohibited the exercise of the following:
> (6) Any legislative act that defines as an offense conduct made criminal by state law, that defines an offense as a felony, or that fixes the penalty or sentence for a misdemeanor in excess of a fine of one thousand dollars ($1,000) for any one (1) specified offense or violation, or double that sum for repetition of the offense or violation ….

The above-emphasized language plainly prevents the enactment of any county ordinance that would create criminal offenses that are already offenses under state law. Based on this language in section 14-14-805(6), the answer to your question would be "no" with respect to counties. That is, based on this language, a county would not be able to pass an ordinance that defines as a criminal offense any conduct that is already made criminal by the Arkansas Uniform Controlled Substances Act (UCSA).

However, another statute, Ark. Code Ann. § 14-20-101, provides that "[a] county is authorized to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor …." This authorization appears to conflict with section 14-14-805(6)'s blanket prohibition on county legislation criminalizing conduct that is already criminalized by state law.

Unless these two statutes can be reconciled, the "settled rule of statutory construction" applies: "if two legislative acts relating to the same subject are in conflict with each other, the later act controls." But the Supreme Court has also made clear "[t]he fundamental rule" that, because "a repeal by implication is not favored," it will "never allow[] one except when there is such an invincible repugnancy between the two provisions that both cannot stand."

Section 14-20-101 was enacted in 1975, and section 14-14-805(6) in 1977. If section 14-14-805(6) sufficed to repeal section 14-20-101 by implication, then 14-14-805(6) would control. But the Supreme Court must ultimately decide whether "there is any way to interpret the statutes harmoniously."

With regard to a city ordinance prohibiting the sale or possession of controlled substances under the UCSA, a city may prohibit and punish any act that constitutes a misdemeanor under the UCSA. A city may not, however, declare any act a felony.

If a city elects to prohibit and punish an act that constitutes a misdemeanor offense under the UCSA, the penalties fixed by the city ordinance may not be greater than nor less than the penalties prescribed by the UCSA for the offense.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Footnotes from the official opinion PDF (the public search index's text omits them):

1. Ark. Const. amend. 55, § 1(a); Ark. Code Ann. § 14-14-801(a) (Repl. 2013).
2. See Ark. Code Ann. §§ 14-14-805 to -809 (Repl. 2013 and Supp. 2019).
3. Id. at § 14-14-805(6) (Repl. 2013) (emphasis added).
4. Ark. Code Ann. § 14-20-101(a) (Repl. 2013) (emphasis added). This statute states in full: "A county is authorized to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor and to prescribe penalties for all offenses in violation of any ordinance of the county not greater nor less than the penalties prescribed for similar offenses against the laws of this state." Id.
5. Kyle v. State, 312 Ark. 274, 278, 849 S.W.2d 935, 937 (1993).
6. Hurt-Hoover Invests., LLC v. Fulmer, 2014 Ark. 461, 6, 448 S.W.3d 696, 700 (emphasis added).
7. Act 130 of 1975, § 15.
8. Act 742 of 1977, § 72.
9. See Op. Att'y Gen. 2004-271; see also Ops. Att'y Gen. 2006-139, 2004-271, 99-328, 98-036, 96-028, 90-008.
10. Hurt-Hoover Invests., 2014 Ark. 461, 6, 448 S.W.3d at 700.
11. See Ark. Code Ann. § 14-55-501 (Repl. 1998) ("The town or city council in all cities or incorporated towns in this state are authorized and empowered to prohibit and punish any act, matter, or thing which the laws of this state make a misdemeanor.").
12. Ark. Code Ann. § 14-43-603 (Repl. 2013).
13. See Ark. Code Ann. § 14-55-502 (Repl. 1998). This statute, in subsection (a), authorizes and empowers "[t]he town or city council in all cities or incorporated towns in this state ... to prescribe penalties for all offenses in violating any ordinance of the city or town not exceeding the penalties prescribed for similar offenses against the state laws by the statutes of this state[,]" while subsection (b) makes it unlawful "for any town or city council in this state to prescribe, by city ordinance, less severe penalties for all offenses in violation of any ordinance of the city or town than are prescribed for similar offenses against the state laws by the statutes of this state." See also Ford v. City of Hot Springs, 294 Ark. 435, 743 S.W.2d 394 (1988); Wright v. Burton, 279 Ark. 1, 648 S.W.2d 794 (1983).