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AAC


AG OPINIONS


AG Opinions: felony ordinances, tort immunity, and rim removal fees AG OPINION NO. 2020-013


Under Arkansas law, can a city or county pass an ordi- nance 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 sub- stances 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 prohibit- ing 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 Te 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. Te 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. Te AG explained that this provision of law does not have an explicit list or explicit definition of entities cov- ered by the law. Te 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. Te 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.


Mark Whitmore AAC Chief Counsel


AG OPINION NO. 2020-017


Te AG interpreted the Used Tire Accountability Act codified under Ark. Code § 8-9-401 et seq. Te AG determined that the assessment of a “rim removal fee” does not provide for assess- ment of an additional “transportation fee” for each tire sold. Te 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 transporta- tion is not apparently prohibited. Te AG added that tire retail- ers 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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12 COUNTY LINES, FALL 2020


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