DBTC Law Firm


The Patchwork Quilt of Liquor Laws in Arkansas is Indecipherable, But Is It Unconstitutional?

Anyone who has driven from town to town, county to county, through Arkansas discovers that they need to plan carefully where and how they might have a cocktail. Being six inches to one side or the other of a county or city line can make all the difference. This arbitrariness has not gone unchallenged.

White County, Arkansas, under the Arkansas legal framework of allowing each local government to decide whether to permit or prohibit the manufacture and sale of alcoholic beverages, has prohibited the same. Mr. Brennan, a Searcy resident, asserted that he wanted to open a liquor store, consume alcohol in restaurants, and purchase alcohol without having to travel outside his home county. He urged that the issue was a matter of safety in that he suffers an “unnecessarily increased risk of being involved in an alcohol-related, fatal crash” because he has to travel afar to legally imbibe. He also argued that in dry counties, drug related crime constitutes a greater threat to the public than in counties where the sale of alcohol is legal. Finally, he argued that there was no legitimate state interest in using the police power to impose “majority morality,” on those whose conduct does not harm others.

The Arkansas courts made short work of his arguments, finding that such law, so long as it had even the least rational basis at all to achieving any legitimate governmental objective under any reasonable conceivable fact situation, had a “rational-basis” and therefore would stand under well-established constitutional law principles which give authority to the legislature to make whatever laws they may, as long as they have any rational basis. Brennan v. White County, 2019 Ark. App. 146.


No Noise Ordinance In Your Community? Fire Away!

Owners of land surrounding a shooting range constructed by an American Legion Post on a 40 acre tract in rural Arkansas County filed suit to stop the operation of the range, arguing that noise from the range constituted a nuisance. In a 4-3 decision, the Arkansas Supreme Court sided with the shooting range because no local noise ordinance was in effect. The dissenting justices would have ruled differently, but for the same reason – because no local noise ordinance was in effect.


Noise generated from a shooting range constructed by an American Legion Post in southeast Arkansas prompted neighboring landowners on three sides, including two businesses, to file a lawsuit claiming that noise from the range interfered with the use and enjoyment of their land so as to constitute a legal nuisance. The case required an interpretation of Ark. Code Ann. §16-105-502, a statute which states that a person operating a sport shooting range will not be subject to civil or criminal liability for noise or noise pollution resulting from the operation of the range if the range “is in compliance with noise control ordinances of local units of government that applied to the sport shooting range and its operation at the time the sport shooting range was constructed and began operation.” It was undisputed that there was no noise control ordinance if effect when the Legion’s range began operation. The circuit court found that because there was no local noise ordinance in existence, the range was entitled to immunity from suit under the statute.

The landowners appealed to the Arkansas Supreme Court and lost. In 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158, 2018 Ark. 91 (March 15, 2018), a four-justice majority of the Court concluded that because no local noise control existed at the time the shooting range began operation, “the Legion was in compliance with local noise control ordinances” and the circuit court was correct in finding that the Legion was entitled to immunity. Interestingly, it was for precisely the same reason – because no local noise ordinance existed – that three justices dissented. Their interpretation of the statute was that a local noise ordinance controlling how much noise is acceptable must be in place in order for a shooting range to enjoy the immunity granted by the statute. The dissenting justices stated that if the legislature intended for the statute to immunize a shooting range even when there is no noise ordinance that would apply, it would have simply said so.

Will shooting ranges that become operational when where there in no local noise control ordinance in effect be forever immune from nuisance suits, as the dissenting opinion suggests? Time will tell. For now, though, it is clear that range owners and their customers need not worry about a neighbor’s noise complaints if no local noise ordinance was in effect when the range opened for business.


The Love Boat: Arkansas Even Recognizes River Boat Marriages that Take Place in Other States

Sometimes a marriage license is not “just a piece of paper” and can be quite significant. In the recent case of Stovall v. Preston, 2018 Ark. App. 64, the Arkansas Court of Appeals upheld the validity of the marriage of a couple that were married more than twenty-seven years earlier by a boat captain in Louisiana. This occurred despite the fact that the marriage did not satisfy the technical requirements of Arkansas’s marriage comity law. Even with the apparent legal deficiencies, the Arkansas Court of Appeals declared the marriage to be valid in Arkansas because the couple had a copy of the Marriage License that was issued by the State of Louisiana.

Most states, including Arkansas, have statutes that determine the validity of marriages that occurred outside of the boundaries of the state. These laws are intended to extend comity (legal recognition) to foreign marriages, so as to avoid situations in which a person would be considered legally married in one state, but classified as unmarried in another state. Arkansas’s statute addressing this issue, allows for recognition of marriages “contracted outside of this state that would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided . . .” Ark. Code Ann. §9-11-107 (a). This protection was previously restricted by Ark. Code Ann. §9-11-107 (b) to only allow for comity with respect to marriages between opposite sex couples, but that portion of the statute was later held to be unconstitutional. As a result, under the language of the statute, marriages between any couples married in accordance with the laws of other states would be recognized in Arkansas so long as the individuals consummated the marriage in the state in which the marriage was originally contracted and “actually resided” in that state.

In Stovall, the son of an 83-year-old woman challenged the validity of his mother’s twenty-seven-year marriage as part of a guardianship proceeding. His mother and her husband had been married by a boat captain in Louisiana. Although the couple had obtained a valid Louisiana Marriage License, they had not “actually resided” in Louisiana in the manner described in Ark. Code Ann. §9-11-107 (a). In addition, the son alleged that there was no evidence that the couple consummated the marriage following the marriage ceremony. The son argued that his mother and step-father’s undisputed failure to reside in Louisiana rendered their marriage invalid.

Evaluating the merits of this claim, the Arkansas Court of Appeals acknowledged the “longstanding presumption that a marriage entered in due form is valid, and the burden of proving a marriage is invalid is upon the party attacking its validity.” The Arkansas Court of Appeals also noted that past Arkansas cases had treated marriage license statutes as “directory, not mandatory.” Based upon those presumptions of interpretation, the Arkansas Court of Appeals determined that it would uphold the purpose of Ark. Code Ann. §9-11-107, which “is to recognize as valid marriages contracted outside of Arkansas that would be valid by the laws of the state or country in which the marriages were consummated.” Although the Arkansas statute required residency in Louisiana, the Arkansas Court of Appeals held that the Louisiana Marriage License was sufficient to prove a valid marriage was contracted in accordance with Louisiana law and would thus be recognized in Arkansas. Apparently, love conquers all!