Monday, November 19, 2012

A drive takes shape to make all of Pulaski County 'wet'

Posted By on Mon, Nov 19, 2012 at 11:33 AM

PARK HILL: The idea to make this neighborhood wet has expanded countywide.
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  • PARK HILL: The idea to make this neighborhood 'wet' has expanded countywide.

Terry Hartwick, president and CEO of the North Little Rock Chamber of Commerce, gave me a headsup this morning on a coming drive to open all of Pulaski County, including Jacksonville and parts of Sherwood and North Little Rock currently "dry," to alcohol sales.

The plan would require a state law change, rather than a petition drive to put the proposal on the ballot.

The short version is this: The law change would allow County Judge Buddy Villines to call an election to make all dry parts of the county wet. It would be justified on the ground that the four political subdivisions in northern Pulaski County that voted themselves dry many years ago no longer exist and thus no good way exists to petition for a change of status in those areas. The law would allow some deviation from the precise boundaries of the old dry areas in the vote.

Hartwick said the law would be written to leave municipalities with a means through code enforcement to regulate where alcohol outlets might go. He notes that retail alcohol store permits are already limited by population and Pulaski is already at its limit.

Hartwick said the idea has been percolating a good while. It began as another push to make Park Hill wet so that the commercial strip on JFK Boulevard could develop with restaurants. But Hartwick said others had expressed an interest and the idea has grown, with support from other areas, particularly with Little Rock Air Force Base at Jacksonville in mind. He's been talking with legislators about it and the alcohol industry. (Retailers who currently sell to existing private clubs in dry areas could be expected to fight the idea because regular permit holders could buy from wholesalers.)

"It's time to bring these areas into the 21st Century," said Hartwick.

Traditional alcohol foes, generally with religious ties, can be expected to oppose the idea, even if the proposed legislation applies only to Pulaski County. Such legislation might also be viewed as an option worth widening to other counties, however. By Hartwick's legal research, 26 counties have a mix of wet and dry precincts.

This will be sold as an economic development tool, as Benton County did in its recent countywide election to take the county wet. That was backed by this report. North Little Rock leaders may seek a similar study here.

The following background was prepared by a lawyer, Justin Allen of the Wright firm, working on the issue for Hartwick's ad hoc group. It explains the legal thinking so far, which is still evolving:

In 1933, prohibition was lifted in the United States by passage of the 21st Amendment to the United States Constitution

As result of the 21st Amendment, all 75 counties in Arkansas became wet

In 1935, the Arkansas General Assembly passed the "Thorn Liquor Law", which legalized the manufacture and sale of intoxicating liquors throughout the entire state, but also provided for a process by which individual counties could vote themselves dry by holding a "local option election"

Arkansas law also allows a territorial division, such as a township, municipality, ward or precinct, that is located within a wet county to hold its own local option election and vote that territorial division as dry; this allows for otherwise wet counties to contain some areas within the county that are dry; Arkansas has 35 wet counties and, of them, 26 have some dry areas (3 additional counties voted themselves wet on Nov. 6 and will become so in January)

On the other hand, Arkansas law prohibits a territorial division within a dry county to vote itself wet; once an entire county votes itself dry, an area within that county cannot vote itself wet

Pulaski County, a wet county, contains 4 territorial divisions that voted themselves dry as follows: Union Township - 1953; Gray Township - 1956; Precinct 158 (Park Hill) - 1978; Precincts 611/614 (Bayou Meto) - 1984

These 4 territorial divisions no longer exist as formal voting units

Under Arkansas law, once a territory votes itself dry, that vote can be reversed only by the vote of the exact same territory that voted the area dry (Denniston v. Riddle, 210 Ark. 1039 (1947)). In Denniston, one Ward within Crawford County - a dry county - was seeking to vote itself wet; The Arkansas Supreme Court ruled that only Crawford County as a whole could reverse the original county-wide dry vote; a smaller portion thereof cannot vote itself wet

The issue at hand for Pulaski County is the following: how can the geographic areas comprised of these now 4 defunct territorial divisions vote themselves wet? Who votes when these areas no longer exist?

There is not a clear answer under Arkansas law; Neither the Denniston case nor any other case in Arkansas addresses the specific issue of what you do when the area no longer exists. There are reasonable legal arguments for at least a couple of options. First, one might argue that the voting precincts in which these defunct areas now rest can hold a local option election. Second, one might argue that only the people that live in the boundaries of the defunct area can vote in a local option election that is somehow fashioned to only allow those voters to vote (special precincts would need to be drawn). Reasonable arguments can be made for both of these options, but how the Arkansas Supreme Court would actually rule based on existing law is unknown

While it would be possible to hold a special election under either of these scenarios, the problem is that it will be unknown whether it is the legal method; that leaves a successful election open to legal challenge and could result in a court overturning an election; it is impractical for an election to be held, which will require time and money, only to have it invalidated; accordingly, legislative clarification is needed to ensure that any local option election held for these 4 areas in Pulaski County is a valid election, regardless of the voters' decision

Other states have addressed this issue through either case law or statute; but, as noted above, Arkansas has not

Our proposal is to pass a law as follows:
* It will only apply to Pulaski County
* It will allow the County Judge to call for a special election
* It will require the County Judge to identify the boundaries of these 4 areas that no longer exist; he can do this by accessing records with the county clerk (we have already done this)
* Once he identifies those boundaries, the county clerk will identify the existing Pulaski County precincts that rest entirely, or partially, within that boundary (we have already done this); those precincts will vote in the local option election to determine whether that geographic area stays dry, or becomes wet

This method will accomplish the goal of having the same basic geographic area vote on the issue, but will be more efficient and workable for county officials in that it will utilize the existing precinct system

This model is based in large part on the system adopted by the Texas legislature to address the same issue

It is important to note that no additional retail liquor permits will be issued in Pulaski County if one or more of the 4 area votes itself wet; Arkansas law only allows 1 permit for every 4000 people in the county; this law wont alter that and Pulaski County is currently at the maximum number of permits

Arkansas law also prohibits permit holders outside of cities in Pulaski County from moving into a city in Pulaski County if that city already has 1 permit for every 4000 people in that city; all cities in Pulaski County already have the maximum number of permits allowed

In sum, there is uncertainty as to how these areas in Pulaski County would vote themselves wet; local leaders and business interests in Pulaski County are very interested in putting this issue to the appropriate voters, but have struggled with moving it forward b/c they don't know who those voters are; this law will clarify the issue and provide a fair and reasonable process for holding a local option election and, ultimately, the voters will decide

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