Opinion No.

The Honorable Chris Raff, Prosecuting Attorney 17^th Judicial District — East 411 N. Spruce Street Searcy, AR 72143

Dear Mr. Raff:

You have requested an Attorney General opinion concerning a county ordinance the creates a penalty for violating a countywide burning ban. You have enclosed a copy of the ordinance in question.

Your question is as follows:

Is it legal for a county to adopt an ordinance that classifies a violation of the ordinance as a class "A" misdemeanor, punishable by up to a year in jail and/or up to a $1,000.00 fine?

As an initial matter, I note that the Attorney General is not authorized to construe county ordinances. However, I am authorized to determine whether a county ordinance, on its face, violates state law.

It is my opinion that an ordinance that imposes a penalty of up to $1,000.00 violates state law.

The applicable state laws are A.C.A. § 14-14-805(6) and A.C.A. §14-14-906(a)(2)(B).

A.C.A. § 14-14-805(6) states:

Each county quorum court in the State of Arkansas exercising local legislative authority is prohibited the exercise of the following:

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(6) Any legislative act that defines as an offense conduct made criminal by state law,¹ that defines an offense as a felony, or that fixes the penalty or sentence for a misdemeanor in excess of a fine of five hundred dollars ($500) for any one (1) specified offense or violation, or double that sum for repetition of the offense or violation. If an act prohibited or rendered unlawful is, in its nature, continuous in respect to time, the fine or penalty for allowing the continuance thereof, in violation of the ordinance, shall not exceed two hundred fifty dollars ($250) for each day that it may be unlawfully continued[.]

A.C.A. § 14-14-805(6) (emphasis added).

A.C.A. § 14-14-906(a)(2)(B) states:

A quorum court shall not have power to define an offense as a felony or to impose any fine or penalty in excess of five hundred dollars ($500) for any one (1) specified offense or violation, or double that sum for each repetition of the offense or violation.

The ordinance about which you have inquired authorizes the county judge to declare a burning ban during periods of dry weather. The ordinance provides that a violation of such a burning ban constitutes a misdemeanor, punishable by a fine of up to $1,000.00. In this regard, the ordinance violates the provisions of A.C.A. § 14-14-805(6), quoted above, by exceeding the $500.00 limitation set forth in that statute.

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:SA/cyh

¹ Although various sections of the Arkansas criminal code create criminal offenses arising out of the act of burning, I assume that the ordinance about which you have inquired was intended to address acts of burning that, in the absence of a declared burning ban, would not constitute a criminal offense. Moreover, even though a violation of the state environmental statutes and regulations that prohibit open burning can constitute a criminal offense, see A.C.A. § 8-4-310, local governments are specifically allowed by the environmental statutes to enact legislation to prohibit open burning. See A.C.A. § 8-4-306(b).