McMillan v. Live Nation Entertainment, Inc.

BROWN, J.,

dissenting.

The majority’s interpretation of Arkansas Code Annotated section 5-63-201 leads to absurd results that are plainly contrary to legislative intent. Ticketmaster, as the exclusive agent of Verizon Arena, is the first-time seller of the tickets at issue in this case and sets the box office sale price. It is not a scalper. I would not deem Ticketmaster guilty of criminal conduct under these circumstances. For that reason, I dissent.

lisThe statute in question is a criminal statute that makes it unlawful “for any person, corporation, firm, or partnership to sell or offer for sale any ticket to ... [a]ny music entertainment event at a greater price than that printed on the ticket or the box office sale price plus any reasonable charge for handling or credit card use, whichever is the greater.” Ark.Code Ann. § 5 — 63—201(a)(1)(B) (Repl.2005). Violation of the statute carries with it a fine of not less “than twenty-five dollars ($25.00) nor more than five hundred dollars ($500).” Ark.Code Ann. § 5-63-201(b)(l). Every sale or offer for sale is a separate offense and each offense is classified as a violation. Ark.Code Ann. § 5-63-201(b).

This court reviews issues of statutory construction de novo because it is for this court to determine the meaning of a statute. Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95 (2009). Our rules of statutory construction are well settled. When we review issues of statutory interpretation, we first construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. McCourt Mfg. Corp. v. Rycroft, 2009 Ark. 332, 322 S.W.3d 491 (2009). When the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used, and we do not resort to the rules of statutory construction. Id.

This court, however, will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. If the statute is ambiguous, this court looks to the legislative history of the statute and other factors, such as the language used and the subject matter involved. Rycroft, 2009 Ark. at 5, 322 S.W.3d at 495. A statute is ambiguous only where it is open to two or | iamore reasonable interpretations, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. DaimlerChrysler Corp. v. Smelser, 375 Ark. 216, 289 S.W.3d 466 (2008).

An integral part of our canons of construction is that a criminal statute must be strictly construed and all doubts resolved against criminality. Heikkila v. State, 352 Ark. 87, 98 S.W.3d 805 (2003). Furthermore, this court cannot create offenses which are not expressly created by the Legislature. Id. We also have no authority to declare that a person’s actions come within the criminal laws of this State merely by implication. Id. Nothing is taken as intended which is not clearly expressed. Id.

Despite the majority’s assertion to the contrary, the plain language of section 5-63-201 is ambiguous. A “sale” is a “transfer of property or title for a fixed price in money or its equivalent.” Black’s Law Dictionary 1337 (6th ed.1990); see also Meyer v. Rousseau, 47 Ark. 460, 2 S.W. 112, 113 (1886) (“A sale is an exchange of goods or property for money paid, or to be paid.”). Ticketmaster’s interpretation, that the language of the statute requires that there first be a ticket sale establishing the price of the ticket, is a reasonable interpretation, in light of the fact that “sale” means a transfer of property for a fixed price. Under Ticketmaster’s interpretation, it is the first sale that establishes the sale price.

Another reasonable interpretation of the statute is that the ticket price and the “box office sale price” are both contemplated and set prior to any actual “sale” taking place. For example, if a person went to the Verizon Arena’s website and looked up the ticket price for an event, that person would see the total price quoted for that ticket. This price, as reflected |14on the website, includes a charge for the ticket, plus a facility fee and a convenience fee. Because that person can view the total price of a ticket prior to actually purchasing that ticket, it is reasonable to interpret “ticket price” or “box office sale price” to include the price at which a ticket to an event will be sold in the first instance. See Meyer, 47 Ark. 460, 2 S.W. at 113 (“A sale is an exchange of goods or property for money paid, or to be paid”) (emphasis added).

Further, the term “box office sale price” could be interpreted in one of two ways. It could mean the price quoted at the actual, physical box office, which is located on the premises of Verizon Arena, where customers purchase tickets to events at the Arena, as the majority holds. It also could be interpreted to include the sale price quoted over the telephone or over the internet by Verizon Arena’s exclusive agent, Ticketmaster. As emphasized by Ticketmaster, if the term “box office sale price” did not include sales by telephone or over the internet, then fees charged by a venue at the physical box office location would be legal, but those same fees, if charged over the telephone or internet, would result in violation of this statute and criminal liability.

Because the language of the statute is open to two or more reasonable constructions, the statute is ambiguous. Smelser, 375 Ark. 216, 289 S.W.3d 466 (2008). Our duty then is to look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, and the legislative history in order to determine the legislative intent behind the statute. Baker Refrigeration Systems, Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005). Although the title of an act is not controlling in its construction, we 11sdo consider it in determining the act’s meaning when the meaning is otherwise in doubt. Id. The title may then be examined for the purpose of shedding light on the intent of the legislature. Id.

When the General Assembly enacted section 5-63-201, it made it clear that the statute was enacted to prohibit secondary sales of tickets at prices above which they were sold by the venue. The provision of section 5-63-201, which added the subsection concerning the sales of tickets to musical events that is at issue in the instant case, was added when the General Assembly amended the statute in 1993. See Act of Mar. 17, 1993, No. 565, 1993 Ark. Acts 1669. According to the General Assembly, Act 565 was an act “to Amend Arkansas Code Annotated § 5-63-201 to Prohibit the Scalping of Tickets to Athletic and Other Events Held for the Benefit of Charity; and for Other Purposes.”

“Ticket Scalping” is a commonly-used term for the practice of reselling previously purchased tickets at prices which greatly exceed the established price of those tickets. See, e.g., Diversified Group, Inc. v. Sahn, 259 A.D.2d 47, 696 N.Y.S.2d 133 (1999) (purpose of anti-scalping law is to enforce public policy of protecting against the sale at exorbitant prices of tickets being resold by unscrupulous promoters and others who make enormous profits on ticket resales); State v. Major, 243 Ga. 255, 253 S.E.2d 724 (1979) (by prohibiting the practice of “scalping” tickets, the statute in question was reasonably related to the proper legislative objective of regulating the resale price of tickets to places of entertainment and amusement). Additionally, “scalp” is defined as “to obtain and resell ... at prices greatly above the stated rates without official sanction.” Webster’s Third New International Dictionary 2024 (2002). | mThe above-referenced definitions, like section 5-63-201, contemplates tickets being resold at inflated prices by someone other than the event promoter.

The title of section 5-68-201 is “Tickets to school athletic events or music entertainment events — Sale in excess of regular price.” As noted above, a statute’s title may be considered when determining legislative intent. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005). The word “regular” means “[u]sual, customary, normal or general.” Black’s Law Dictionary 1285 (6th ed.1990). The regular price, as Ticketmaster correctly argues, is the price that is charged by the first-party seller, and not a secondary seller who is scalping tickets.

With today’s interpretation by the majority, all first-party ticket sellers across the State, will be subject to fines for a criminal violation if they charge fees similar to those charged by Ticketmaster. This absurd result is not what the General Assembly intended, and, again, criminal statutes must be strictly construed in favor of Ticketmaster and should not create offenses which are not included in the express terms by the Legislature. See Heikkila, 352 Ark. 87, 98 S.W.3d 805 (2003).

It is absolutely clear, after considering the legislative history, that the General Assembly intended to make the conduct of people engaged in “ticket scalping” a criminal violation and not that of first-party sellers, or their exclusive agents, such as Verizon Arena and Ticketmaster. Accordingly, this court should answer the certified question in the negative.

HANNAH, C.J., and GOODSON, J„ join this dissenting opinion.