Opinion No. ( 2005 )

The Honorable Eric Harris State Representative Post Office Box 796 Lowell, AR 72745

Dear Representative Harris:

I am writing in response to your request for an opinion on the following:

Act 1264 of 2005 establishes certain conditions under which turf must be certified by the State Plant Board.

Does Act 1264 of 2005 exempt the Department of Education or any educational institution in this state from compliance with this act? Is the Department of Education or any educational institution in this state exempt from compliance with Act 1264 of 2005 on the basis of any other state law?

Does Act 1264 of 2005 limit compliance to new construction? Does any other state law limit compliance with Act 1264 of 2005 to new construction?

RESPONSE

In my opinion, there are neither any exemptions contained in Act 1264 of 2005, now codified at A.C.A. § 2-16-109 (Supp. 2005), for the Department of Education or any other education institution nor is there any applicable state law to provide such an exemption. Furthermore, Act 1264 of 2005 applies to all purchase of turf under the conditions set forth in subsection (b) from August 12, 2005 onward regardless of whether it is for new construction or for maintenance of an existing facility. I have not found any other state law that would limit compliance with Act 1264 of 2005 to new construction.

Question One: Does Act 1264 of 2005 exempt the Department ofEducation or any educational institutions in this state fromcompliance with the act?

In my opinion, there is no exemption for the Department of Education or any other educational institutions in Act 1264 of 2005. To properly answer this question, it is imperative to examine the language of Act 1264 of 2005. To wit:

SECTION 1. Arkansas Code Title 2, Chapter 16, Subchapter 1 is amended to add an additional section to read as follows:

2-16-109. Turf purchased with state moneys.

(a) As used in this section, "turf" means field-cultivated turf grass sod consisting of grass varieties tested by the National Turfgrass Evaluation Program.

(b) Turf shall be certified by the State Plant Board if the turf is:

(1) Purchased with state moneys, either directly or indirectly; or

(2) Used in a project conducted:

(A) By a state agency, department, board, or commission; or

(B) Under a contract with the State of Arkansas.

(c) Cool seasons variety blends of turf shall be grown from blue tag certified seed under the blue tag certification program of the Association of Official Seed Certifying Agencies.

Act 1264 of 2005. Upon review of the language of Act 1264 of 2005 in its entirety, there is no exemption contained therein.

In my opinion, Act 1264 of 2005 does not contain an exemption from compliance for the Department of Education or other educational institution.

Question Two: Is the Department of Education or any educationalinstitution in this state exempt from compliance with Act 1264 of2005 on the basis of any other state law?

In my opinion, there is no applicable state law that grants an exemption to Act 1264 of 2005 to the Department of Education or any other educational institution. My research has not revealed any statutes that purport to grant exemptions to educational institutions or the Department of Education from generally applicable state laws or state purchasing laws.

Question Three: Does Act 1264 of 2005 limit compliance to newconstruction?

In my opinion, Act 1264 of 2005 is generally applicable to the purchase of sod, regardless of the use of the turf.

As recounted above, the language of Act 1264 of 2005 is generally applicable. All turf that is purchased with state money either directly or indirectly, by a state agency, board, commission, or department, or under contract with the state must now be certified by the State Plant Board after the effective date of the act. The Act does not contain any distinction as to whether the turf is to be used with a new construction or an existing construction. Lacking an emergency clause, Act 1264 of 2005 became effective on the ninety-first day after the General Assembly adjourned sine die, or August 12, 2005. See Op. Att'y Gen. 2005-110.

Question Four: Does any other state law limit compliance withAct 1264 of 2005 to new construction?

My research has not revealed any other state law that would limit the effect of Act 1264 of 2005 to new construction.

Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB:JMD/cyh