The Arkansas House of Representatives on Tuesday declined to override Gov. Asa Hutchinson's veto of a bill that would have required the state Alcoholic Beverage Control Division and the state Department of Health to return fines paid by businesses for coronavirus-related violations during the state's public health emergency.
The fines were for failing to comply with a rule, order or directive to mitigate or prevent the spread of the virus.
Earlier Tuesday, the state Senate voted 19-13 to override the veto. Two senators didn't vote, and one senator was excused.
The House's 40-39 vote on overriding the Republican governor's Monday veto of Senate Bill 301 by Sen. Dan Sullivan, R-Jonesboro, fell 12 votes short of the 51 votes required. Nine representatives voted present, 11 did not vote and one was excused.
A simple-majority vote is required to overturn the governor's veto in the 35-member Senate and the 100-member House of Representatives.
Afterward, Hutchinson said, "I am gratified that the General Assembly sustained my veto.
"I know many members reconsidered the original vote based upon the concerns on the proper separation of powers between the branches of government," the governor said in a written statement. "The deliberation that the members gave this issue speaks well of the respect the members have for the role of the two branches of government."
Afterward, Sullivan said, "I'm very disappointed that they didn't stand true to their votes," noting that 67 representatives voted for the bill earlier this month.
"I'm very disappointed House members didn't stand up in support of their constituents," he said. "This is all about co-equal branches of government."
Afterward, Rep. Brandt Smith, R-Jonesboro, said he believes the governor's office helped persuade enough representatives not to override the veto.
"I think we are done, and it is time to move on to other state business," he said.
Smith had urged his colleagues to stand up for small-business owners by voting to override the veto.
"Many, if not all, of the fines levied against our small-business owners across the state were mom-and-pop cafes and the corner markets, but to my knowledge these overzealous public health inspectors bypassed big-box stores and focused their attention on the little guys," Smith said.
SB301 would have required the Alcoholic Beverage Control Division to return $69,560 in fines paid by businesses, a spokesman for the state Department of Finance and Administration said Tuesday.
The measure also would have required the state Department of Health to return a total of $4,100 in fines paid by businesses, a spokeswoman for the department said Tuesday.
Hutchinson said in his veto letter dated Monday to the General Assembly, "The bill is an infringement on the executive's power to enforce the law, and it is an unwise and unconstitutional precedent for the future.
"If the rationale of SB301 is accepted, then it is the equivalent to giving the General Assembly veto power over the executive branch in the faithful execution of the laws," the governor said in his two-page letter.
"The General Assembly defines the law and penalties, but the legislative branch is not constitutionally empowered to change after the fact how law enforcement is carried out," he said.
The Senate voted 19-14 to approve SB301 on Feb. 25, and the House voted 67-20 to approve it on March 15.
Sullivan told senators Tuesday that the vote to override the governor's veto "will set a precedent for what happens in years to come."
He said he believes the House and Senate "have not been co-equal branches [of government], while the governor believes otherwise."
Sullivan said there was an opportunity for the executive branch to engage the Legislature in a much more significant manner and that "the governor believes otherwise."
Whether intentional or unintentional, small businesses were targeted by state government, and the governor believes otherwise, he said.
In his letter, Hutchinson said the Health Department and Alcoholic Beverage Control's actions were consistent with legislative authorization and thus far have withstood two legal challenges brought by members of the General Assembly and those with liquor permits.
"Additionally, every person or business had the opportunity to avail themselves of administrative and judicial appeal without payment of fee or hiring an attorney," Hutchinson said.
The only message sent by this bill is that the rule of law doesn't matter, he wrote in his letter.
"It is an affront to those citizens who diligently followed health and safety directives to protect themselves and their fellow Arkansans," Hutchinson said.
The governor noted two bills that are now law that were filed in response to executive action taken during the covid-19 pandemic.
Hutchinson said Senate Bill 254, by Sen. Kim Hammer, R-Benton, prohibits the Health Department and Alcoholic Beverage Control from penalizing businesses if their customers flout public health directives. The bill became Act 401 without Hutchinson's signature.
The Senate voted 32-1 for for SB254, and the House voted 74-16.
Hutchinson said he signed Senate Bill 379 by Hammer, which makes changes to the implementation of the state's Emergency Services Act during a public health emergency.
The Senate approved that bill 27-4, and the House voted 78-16 for it. The bill is now Act 402.
"While I may disagree with aspects of these bills, they are an appropriate exercise of Legislative power," Hutchinson wrote in his letter.
"This is in contrast to Senate Bill 301 which directs a refund of penalties assessed and violates the separation of powers between the legislative and executive branches," he said.
Hutchinson on Friday sent a request to the Legislative Council for a 60-day extension of the public-health emergency that the governor first declared more than a year ago. Without the extension, the emergency is set to expire March 31. The council meets Monday to consider the request.
While the state "continues to make progress in reducing the number of infections and hospitalizations," Hutchinson warned that the virus and its variants "remain a threat to the health and safety of Arkansans until vaccines are available and administered to a larger population of the state."
The extension, he wrote, would "allow for flexibility and rapid response capabilities until we are able to receive and administer vaccines to any Arkansans who want one."
State law now requires him to request the council's consideration of such extensions at least 10 days before the emergency's expiration date and allows the council to reject the extension.
The council normally meets when the Legislature is not in session. Under Act 402, however, it can meet at any time, including during a session, to consider such requests.
Hutchinson also said Friday in his letter to the Legislative Council that he is seeking an extension of four executive orders issued to assist Arkansans during the pandemic. He noted that lawmakers haven't approved legislation related to those executive orders, which concern telehealth, suspension of in-person witnessing and notarization of documents, access to health care resources, and protection of businesses from liability related to covid-19.
He said he also is seeking an extension of his executive order to shift the state's income tax filing date of April 15 to May to coincide with the federal government's extension of its filing date.