Vote on Barling liquor sales against the law, suit claims

— A Nov. 6 vote approving the retail sale of alcohol in Barling should be declared void because it violated Arkansas law, according to lawsuit filed Tuesday in Sebastian County Circuit Court.

Erik Danielson, a Booneville lawyer, filed the suit against the county election commission on behalf of 21 Barling residents.

Danielson argues in the suit that the vote was contrary to state law because voters in a city can’t approve the sale of alcohol if the entire county has previously voted to ban the sale of alcohol. A wet vote would have to include the whole county, he wrote.

Danielson cited Denniston v. Riddle, a 1947 Arkansas Supreme Court decision, and other case law. The applicable statutes are Arkansas Code Annotated 3-8-305 and 3-8-307.

Sebastian County has two judicial districts that act as independent counties. The Fort Smith district includes everything within the city limits. The Greenwood district includes the rest of Sebastian County, and it voted against alcohol sales in 1944.

Barling residents voted 1,082 to 544 on Nov. 6 in favor of the retail sale of alcoholic beverages.

Danielson also argues in the court filing that the election commission didn’t deliver its certificate declaring the results of the election to the county clerk within three days of the election, in violation of Arkansas Code Annotated 3-8-206(b).

Jerry Huff, the Sebastian County election coordinator, said he was unaware of a three-day limit to provide results of alcohol elections to the county clerk.

“We don’t have to certify the results of the election for 15 days, so we can’t do that,” Huff said.

Danielson said Tuesday that the issue shouldn’t have been on the ballot.

“The way this was handled, this was not done properly,” he said. “Hopefully, this will quickly and easily get this resolved.”

Danielson also filed a petition Tuesday in Sebastian County District Court contesting the Nov. 6 local option election. The 21 plaintiffs in the lawsuit are the 21 petitioners.

Robert Rose, the first plaintiff listed in the lawsuit, said Tuesday that he had no comment, and neither did the three family members in the room with him, all of whom are listed as plaintiffs in the suit. Rose said he’s in the rental-property business.

Michael Langley, director of the Arkansas Alcoholic Beverage Control Division, said he’s glad a lawsuit was filed. Since the election, the division has received about a dozen requests for liquor permit applications, but Langley has declined to send those out because of the 1947 Supreme Court decision.

Langley said he’d like to see the situation resolved and a proper vote held in Sebastian County’s Greenwood district.

“Hopefully, it will be a positive vote,” he said in an email. “Alcohol sales enhance economic development when conducted properly.”

Barling City Director Bruce Farrar, who led the petition drive for the liquor vote, said he had no comment Tuesday because he hadn’t seen the lawsuit.

Before the election, Farrar told the Arkansas Democrat-Gazette that he believed that he needed signatures from 38 percent of Barling’s 2,516 registered voters to put the issue to a vote. Langley said Farrar actually needed signatures from 38 percent of the 24,015 registered voters in the Greenwood district.

The county election commission placed the item on the ballot after Farrar’s petition was certified by the county clerk. That’s the normal procedure, Huff said.

The issue stretches back to 1942 when Sebastian County voters approved Initiated Act 1 of 1942, which stated that the Fort Smith district would have alcohol sales and that the Greenwood district would not.

The 1947 Supreme Court ruling resulted from a Crawford County case. Voters outlawed alcohol sales in Crawford County in 1944. Then, voters in Van Buren’s Ward 1 submitted a petition for an election to allow alcohol sales.

The county judge decided to allow the election, but a resident appealed the county judge’s decision. The state Supreme Court ruled in the resident’s favor, stating that since the entire county voted to go dry, Ward 1 could not hold an election to determine whether liquor could be sold in that ward.

If determined to be a legal vote, the election would allow packaged alcohol to be sold in Barling stores. It wouldn’t allow for sale of mixed drinks at restaurants and bars that aren’t private clubs, but that could be accomplished in a referendum vote held at least six months later, according to Arkansas Code Annotated 3-9-208(a).

Arkansas, Pages 14 on 11/21/2012

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