EUREKA SPRINGS -- The words "socioeconomic status" were removed from Eureka Springs' anti-discrimination ordinance Friday to make it less susceptible to a legal challenge after a state law goes into effect Wednesday.
The Eureka Springs City Council passed Ordinance 2223 on Feb. 9, primarily to protect people from discrimination because of "sexual orientation" and "gender identity," but the phrase "socioeconomic status" also was included among the ordinance's protected classes.
The Eureka Springs City Council voted unanimously on three readings Friday to pass the change. The amended ordinance is No. 2228.
On Feb. 13, the Arkansas Legislature passed Act 137, which prevents cities and counties from enacting or enforcing laws that create "protected classes" that are not already protected under state law. Act 137 will go into effect Wednesday.
Fayetteville City Attorney Kit Williams had told Eureka Springs City Attorney Tim Weaver that the wording of the Eureka Springs ordinance could be a problem.
Although "socioeconomic status" is listed as a protected class under Arkansas Code Annotated 6-18-514, it's difficult to define, Williams said after the Eureka Springs meeting Friday.
"The biggest problem is trying to figure out what that means," he said.
Williams has experience on the issue. The Fayetteville City Council passed such an ordinance last year, but it was repealed in a Dec. 9 special election.
Fayetteville is trying again this year. The City Council passed a new ordinance and sent it to voters for a Sept. 8 election. The Fayetteville Chamber of Commerce fought the ordinance last year but is backing the new one.
Williams said Fayetteville's new ordinance doesn't include the phrase "socioeconomic status," which was an issue of confusion for people last year.
He suggested Eureka Springs remove the phrase from its ordinance, and Weaver said he agreed.
State Rep. Bob Ballinger, R-Hindsville, who sponsored Act 137, said removing those two words from the city law won't make any difference.
"I think everyone knows as soon as it's challenged in court, it'll be thrown out," he said of the ordinance.
Ballinger said it's an unenforceable ordinance that Eureka Springs wants on its books for bragging rights.
The city advertises itself as diverse and open to all, including those in the gay community. Eureka Springs has the broadest law in Arkansas providing anti-bias protection for gay and transgender people.
When informed of Ballinger's comment, Williams said, "Tell Bob he needs to be a better draftsman when he passes statutes up at the Legislature. We're just following the law as he wrote it. He knew the status of state law, so he meant to do that. He meant to allow us to do this."
Little Rock City Attorney Tom Carpenter wrote in an opinion April 19 that Arkansas law already provides protections for the classes of "sexual orientation" and "gender identity," but those protections are not in the state's Civil Rights Act. He cited Arkansas Code Annotated 6-18-514, which regards bullying, and Arkansas Code Annotated 9-4-106, which involves domestic-abuse shelters.
Ballinger, who is a lawyer, disagrees with Carpenter's opinion, saying the bullying law applies only to students in kindergarten through 12th grade.
"You can't take that level of protection and superimpose it to every other place, referring to sexual orientation everywhere," Ballinger said.
It may take a while before the city ordinance and state law clash in court, Ballinger said. First, someone would have to claim he was discriminated against in the tourist town.
"In Eureka Springs, it would be hard to enforce it because you're going to have trouble finding people who are discriminating," Ballinger said.
Besides removing "socioeconomic status," the new ordinance also added wording to make clear that the law applied to tourists as well as residents.
Another sentence was added to indicate that the ordinance didn't trump any laws with regard to the purchase or consumption of alcoholic beverages by people under the age of 21.
Eureka Springs held a special election May 12 to determine whether the public was in favor of Ordinance 2223. Residents supported it by a vote of 582-231. Alderman James DeVito said that was a "mandate" from the community.
In theory, Eureka Springs' anti-bias ordinance has been in effect since Feb. 10, but Mayor Robert "Butch" Berry said nobody had filed a complaint under the law. When asked whether it will be enforced after Wednesday, when the state law goes into effect, Berry said he would wait until then to comment.
Some Arkansas cities, including Little Rock, recently have passed anti-discrimination ordinances that protect municipal employees and contractors who do business with the cities. Eureka Springs has had an ordinance providing those protections since 2006.
Metro on 07/18/2015