The Honorable Bobby Lee Trammell State Representative 5213 Richardson Drive Jonesboro, AR 72404-5162
Dear Representative Trammell:
I am writing in response to your request for my opinion on the following questions:
1. Does a circuit court judge have the legal right to overturn a decision by the Alcoholic Beverage Control Board?
2. Does a circuit court judge have the legal right to issue a permit to sell alcoholic beverages after overturning a decision by the Alcoholic Beverage Control Board?
RESPONSE
In my opinion, the answer to your first question is "yes" and the answer to your second question is "no."
Question 1: Does a circuit court judge have the legal right to overturn adecision by the Alcoholic Beverage Control Board?
Yes. Section 3-2-216 of the Arkansas Code, which deals with appeals from decisions of the Alcoholic Beverage Control Board, provides:
An appeal of the decision of the board may be filed in conformance with the provisions of the Arkansas Administrative Procedure Act, A.C.A. § 25-15-201 et seq.
Section 25-15-212(b)(1) of the Code dictates that the appeal be filed within thirty days of service of the agency's final decision in either the circuit court of the county where the petitioner resides or the circuit court of Pulaski County. Subsection (g) of this statute provides that the court will review the decision on the record and, upon request, will consider written briefs and oral argument. Subsection (h) provides that the court may affirm the decision or remand the case for further proceedings. In its order, the court may reverse or modify the decision.Id.
Question 2: Does a circuit court judge have the legal right to issue apermit to sell alcoholic beverages after overturning a decision by theAlcoholic Beverage Control Board?
No. Pursuant to A.C.A. § 25-15-212(b)(1), if a circuit court judge reverses a board decision, he should remand the case and direct the board to act in compliance with his ruling. In your example, the board itself would issue the permit following a successful appeal.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP/JHD:cyh