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AG Opinions: felony ordinances, tort immunity, and rim removal fees

By Mark Whitmore, AAC Chief Legal Counsel

AG OPINION NO. 2020-013

Under Arkansas law, can a city or county pass an ordinance that is a felony? Can a city or county pass an ordinance prohibiting the possession or sale of a controlled substance even though it is prohibited under the Uniform Controlled Substance Act (USCA)? Does the USCA, codified under Ark. Code §5-64-101 et seq., preempt cities and counties from passing ordinances prohibiting the possession or sale 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?

Neither a city nor county can enact an ordinance prohibiting conduct that constitutes a felony. Ark. Code § 14-14-805 explicitly prohibits the enactment of a county ordinance that defines an offense conduct made criminal by law, that defines an offense as a felony, or that fixes the penalty or sentence for a misdemeanor in excess of $1,000 for any one specified offense or violation. Ark. Code § 14-20-101 provides that a county is authorized to prohibit or punish any act, matter or thing in which the laws of this state makes a misdemeanor. A city may not declare any offense to be a felony. However, the city may prohibit an act that constitutes a misdemeanor offense under the UCSA.

AG OPINION NO. 2020-016

The Attorney General was requested to determine whether an entity, the Fort Chaffee Redevelopment Public Trust (FCRA), is afforded tort immunity under Ark Code § 21-9-301 et seq. The AG determined that a court would likely conclude that such an entity likely enjoys the protections provided by tort immunity under Arkansas law. As such, the employees of the FCRA are likely protected by tort immunity. The AG explained that this provision of law does not have an explicit list or explicit definition of entities covered by the law. The AG reasoned that a court would likely find the redevelopment public trust created under statute, Ark Code § 12-63-103(b), was created to serve a public interest and is designated for a public purpose, etc. The AG’s office has issued a litany of opinions over the years as to whether a court will likely determine that particular entities and employees are to be covered by tort immunity under Arkansas law or not.

AG OPINION NO. 2020-017

The AG interpreted the Used Tire Accountability Act codified under Ark. Code § 8-9-401 et seq. The AG determined that the assessment of a “rim removal fee” does not provide for assessment of an additional “transportation fee” for each tire sold. The rim removal fee must be charged by the retailer when a tire is being removed from a rim for a replacement tire. A tire retailer is prohibited from charging “any other fee to a person who purchases the services of removal of a tire from a rim as per Ark Code § 8-9-404. However, transportation does not appear to be part of the rim removal service and therefore a fee for transportation is not apparently prohibited. The AG added that tire retailers apparently can pass on the expense of transporting used tires to a recycling facility, as required by law, to the customer.

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