Opinion

Barnes v. Arkansas Department of Finance & Administration

  • 2012 Ark. App. 237
  • 419 S.W.3d 20
  • 2012 Ark. App. LEXIS 351
  • 2012 WL 1110046
Court
Court of Appeals of Arkansas
Filed
Apr 4, 2012
Status
Published
Author
Gruber
On the bench
Abramson, Agree, Glover, Gruber, Hart, Robbins, Vaught
Cited by
1 cases
Authority
More cited than 21.6%

The opinion

GRUBER, J., dissenting.

|14I respectfully dissent from the majority’s holding affirming the Board’s interpretation of a “private club” and its finding that Lamar’s Bistro established a proper nonprofit purpose. Under the majority’s interpretation, any restaurant serving alcohol in a dry county, without more, may now qualify as a private club. I would reverse the Board’s decision because it is in violation of Ark.Code Ann. § 3-9-202(10)(A)(i) (Repl.2008), in excess of the Board’s statutory authority, and not supported by substantial evidence.

While I recognize the great deference we give to an agency’s interpretation of a statute that it administers, we cannot interpret a statute to mean anything other than what it says. MacSteel Div. of Quanex v. Ark. Okla. Gas Corp., 363 Ark. 22, 31 , 210 S.W.3d 878, 883 (2005). The primary rule in the construction of a statute is to give effect to the intention of the lawmakers, and this intention is to be ascertained from a consideration of the entire act. Sw. Bell Tel. Co. v. Ark. Pub. Serv. Comm’n, 20 Ark.App. 30, 33 , 727 S.W.2d 384, 386 (1987). The “entire act” in this case includes a chapter entitled “Local Option,” in which the legislature has given to the voters of each county the right to determine whether to permit the sale of alcohol in that county. Ark.Code Ann. §§ 3-8-101 et seq. (Repl.2008). The voters of Columbia County exercised this right, and Columbia County has been dry since 1943. A “private club” — as defined in Ark.Code |1sAnn. § 3-9-202(10)(A)(i)— is a limited exception to the dry-county designation. Furthermore, this exception exists within the context of promoting regional meetings, conventions, and tourism. Ark.Code Ann. § 3-9-201(b), (c), & (e) (Repl.2008).

To fall within this exception, a private club must be conducted for “some common recreational, social, patriotic, political, national, benevolent, athletic, community hospitality, professional association, entertainment, or other nonprofit object or purpose other than the consumption of alcoholic beverages.” Ark.Code Ann. § 3-9-202(10)(A)(i) (emphasis added). I disagree with the majority that “enhancing the dining experience” is an appropriate nonprofit purpose under this statute. Although Lamar’s application did not state — and Mr. Gilreath did not testify regarding — any purpose other than enhancing the dining experience, the majority has determined that Lamar’s purpose is “entertainment” because the Board’s printed application form includes the following examples of entertainment: “(live bands, dancers, food service, etc.).” Thus, the majority affirms the Board’s interpretation of the statute that food service alone is a satisfactory nonprofit purpose: i.e., restaurants provide food; Lamar’s is a restaurant; therefore, Lamar’s offers entertainment; end of discussion.

I am not persuaded that operation of a restaurant that serves alcohol, without more, is a proper purpose under the statute. Nor am I persuaded that the 2003 amendment adding community hospitality, professional association, and entertainment to the definition of private club overruled our decision in Chili’s of Jonesboro, Inc. v. Ark. Alcohol Beverage Control Div., 75 Ark.App. 239 , 57 S.W.3d 228 (2001). The legislative history is silent on the matter, and the statute does not mention food service or the operation of a restaurant. I simply do not read the statute as broadly as the majority.

The real purpose in this case, the so-called enhancement, is to serve alcohol at an existing restaurant in order to increase sales and profits. There is no other “entertainment” purpose. Thus, the purpose is the consumption of alcoholic beverages, which, notably, is the only purpose expressly forbidden by the statute. The majority’s holding distorts the plain language of the statute at worst and adds language that it does not contain at best. Finally, an interpretation of the law that is supported neither by the statutory language itself nor by its legislative history — particularly when that interpretation effectively nullifies another chapter (Local Option) in the same title — is, in my view, clearly wrong.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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