Barling vote on alcohol ruled invalid

Entire district, not just city, gets to decide, judge says

A Nov. 6 election approving the sale of alcohol in Barling was unlawful and the results are void, a Sebastian County circuit judge ruled Tuesday.

Voters in Barling approved alcohol sales in November by a vote of 1,082 to 546.

Circuit Judge Stephen Tabor ruled that voters in Barling couldn’t make the change from “dry” to “wet” on their own. Such an election would have to involve voters throughout Sebastian County’s Greenwood district, which banned the sale of alcohol in 1944 by a vote of 1,190 to 463.

Sebastian County has two judicial districts that act as independent counties. The Fort Smith district encompasses the city limits. The Greenwood district encompasses the rest of Sebastian County, including Barling.

Arkansas law “could not be more clear,” Tabor wrote in Tuesday’s order. He cited Arkansas Code Annotated 3-8-305(a)(2): “When an election is held in an entire county and the majority of legal votes cast at the election are against the sale ... of ... intoxicating liquors,then it shall not be lawful to sell ... any liquors in any portion of the county.”

Tabor also cited four Arkansas Supreme Court decisions dating back to 1947.

Tabor wrote that an injunction could have stopped the election beforehand or the alcohol-sales question could have been placed on the rest of the ballots in the Greenwood district before the election.

“Certainly, it would have been better had either been done rather than to deal with an attack on an election once held,” wrote Tabor.

Erik Danielson, a Booneville lawyer, filed the lawsuit against the county’s Election Commission on behalf of 21 Barling residents.

“I’m very pleased with the ruling,” he said. “I think the court got it right. The established precedent is pretty clear.”

Barling City Director Bruce Farrar, who led the petition drive for the liquor vote, said he thought the decision was “wrong.”

“Judge Tabor just doesn’t know what the hell he’s doing, and I don’t mind telling himso,” said Farrar. “It’s not over. ... We will win the battle. We will have to go another route, probably the state Supreme Court.”

County Prosecuting Attorney Dan Shue filed a motion Nov. 29 to dismiss the suit, arguing it showed no “alleged wrongs, by election officials or any other persons, that render the results of the election doubtful.”

In a Dec. 31 court hearing, County Clerk Sharon Brooks testified that she was requested by Barling residents to certify petitions submitted for an election on allowing alcohol sales in Barling.

The certification approved by her office on March 16 stated that the petitions contained “38 percent of qualified and registered electors of Sebastian County, Arkansas.” But that was not the case.

Under questioning by Danielson, Brooks said the number of signatures on the petitions she certified, 956, would not have been enough to certify an election of the entire southern district of the county. There are more than 24,000 registered voters in the county’s southern district.

Before the election, Farrar told the Arkansas Democrat-Gazette that he believed thathe needed signatures from 38 percent of Barling’s 2,516 registered voters to put the issue to a vote.

In a second ruling Tuesday, Tabor denied a motion by the city of Barling to intervene in the case.

Barling’s attorney Matthew Ketcham had argued in a motion and brief that allowing liquor sales would benefit the town and its businesses economically through income from liquor sales and the taxes they would generate.

Tabor ruled that Barling didn’t file a complaint of intervention and didn’t otherwise adequately explain its grounds for intervening.

“Nowhere in its pleadings does intervenor state any claim of authority ... for why an otherwise illegal election should be upheld because of economic impact,” wrote Tabor.

Danielson said he thought upholding the state’s election laws was more important than the economic gain Barling might enjoy from the liquor sales.

The Fort Chaffee Redevelopment Authority voted on Jan. 22 to file a motion to intervene in the lawsuit, but apparently didn’t do so before Tuesday’s ruling. The authority oversees development of 7,000 acres of former Fort Chaffee land known as Chaffee Crossing.

Ivy Owen, executive director of the authority, said lastweek that three Hot Springs investors want to buy 90 acres of Chaffee Crossing land in Barling at the intersection of Arkansas 22 and Arkansas 59 for $3 million. They want to build a 70-store mall that could employ up to 700 people

The size of the proposed mall could depend on alcohol sales. Darrell Allison of Diamondhead Realty in Hot Springs, which represents the mall’s developer, has said national chains might not open restaurants in the mall if alcohol can’t be sold. The mall will be built anyway, he has said, but it could be smaller as a result.

Neither Owen nor Allison returned messages Tuesday afternoon.

The ballot initiative in Barling was for or against the “manufacture or sale of intoxicating liquors,” according to Arkansas Code Annotated 3-8-206(a)(1). Besides package liquor stores, if the vote had been legal, it would have allowed restaurants and bars to serve beer and wine without private club permits. It would also have allowed some grocery and convenience stores to sell beer and small-farm wines. Permits must be obtained through Alcoholic Beverage Control to sell beer, wine or liquor.

Michael Langley, director of the state’s Alcoholic Beverage Control Administration division, said he would deny any alcohol permit applications until the Barling election issue had been heard in court.

Information for this article was contributed by Dave Hughes of the Arkansas Democrat-Gazette.

Northwest Arkansas, Pages 9 on 01/30/2013

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