Opinion No. ( 1993 )

The Honorable Sturgis Miller State Representative Route 2, 4410 Town Country Lane Pine Bluff, Arkansas 71603

Dear Representative Miller:

This is in response to your request for an opinion on the legality of neon lighting devices installed on or under motor vehicles. You also ask whether, under A.C.A. § 27-36-201, it is the duty of the Highway Commission, when requested to do so, to approve or disapprove these devices. Finally, you ask whether the use of such devices is legal until such time as the Highway Commission makes a ruling.

It is my opinion that there currently is no law prohibiting the use of these devices.¹ It appears, additionally, that although the Highway Commission has the authority to approve or disapprove these devices, it is not required to do so.

Section 27-36-201 (1987) of the Arkansas Code provides in pertinent part as follows:

(a)(1) The State Highway Commission is authorized to approve or disapprove lighting devices and to issue and enforce regulations establishing standards and specifications for the approval of lighting devices, and their installation, adjustment and aiming, and adjustment when in use on motor vehicles.

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(b) The commission is required to approve or disapprove any lighting device, of a type on which approval is specifically required in this subchapter, within a reasonable time after such device has been submitted. [Emphasis added.]

Thus, while the Commission is "authorized" generally to approve or disapprove "lighting devices," it is only "required" to approve or disapprove lighting devices of a type on which approval is required by A.C.A. §§ 27-36-201—220. It appears that the only lighting devices which require approval of the Commission prior to their sale are those which fall into the categories of headlamps, auxiliary, or fog lamps, rear lamps, signal lamps, or reflectors or any parts of these items which tend to change the original design or performance of these devices. See A.C.A. § 27-36-203(a)(1). It does not appear that the neon lighting devices you describe fall into any of these categories. It is therefore my opinion that the Highway Commission is under no "duty" to approve or disapprove them, when requested to do so. It may take action to approve or disapprove them if it chooses, however.

It does not appear, additionally, that there is any other Arkansas law or regulation which specifically prohibits the use of these devices.² Of course the devices must, as a factual matter, not run afoul of any general laws or regulations governing such matters as the intensity of motor vehicle lighting. See e.g. n. 1, supra. A determination as to whether these particular devices are, in all respects, in compliance with such laws would require a factual analysis of the features of such devices; an analysis which is beyond the purview of an Attorney General's opinion.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ These devices, however, if they project a beam of light of greater intensity than three hundred candlepower, must be so directed that no part of the high intensity portion of the beam will strike the level of the roadway at a distance of more than seventy-five feet from the vehicle. See A.C.A. §27-36-208(a)(1987).

² It does not appear that A.C.A. § 27-36-217, which enumerates certain additional lighting equipment which may be used by motorists, operates to prohibit additional types of lighting devices not enumerated therein.