The Honorable Terry Smith State Representative 181 Caroline Acres Road Hot Springs, Arkansas 71913
Dear Representative Smith:
This is in response to your request for an opinion on whether it is legal for the City of Hot Springs to charge a retail beer alcoholic beverage permit based upon gross sales. You have enclosed with your request a copy of Hot Springs Code Section 5-1-4, which addresses this subject.
It is my opinion that the answer to your question is generally "yes."
The regulation of alcoholic beverages is of course not a "municipal affair" under state law, and any local regulation on the subject must conform to that authority delegated by the state. See, e.g., A.C.A. §14-43-601(a)(1)(K) (1987). The permit fees set by the City of Hot Springs, which are based upon gross sales of permitees, generally track the provisions of state law set out at A.C.A. § 3-5-212 (Repl. 1996). That statutory subsection is entitled "County and municipal retailers' permits," and appears in the chapter governing the sale of "beer and light wine." The permit fees set in the Hot Springs Code which are based on gross sales track verbatim the language of the statute, with one possible exception. The Hot Springs Code authorizes a permit fee of $40.00 for new applicants for an initial permit. I have found no corresponding authority to charge this fee in the applicable statute. I have enclosed a copy of the statute for your review.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:ECW/cyh