Opinion No. ( 1990 )

The Honorable Jim Hudson Prosecuting Attorney Miller County Courthouse Texarkana, AR 75503

Dear Mr. Hudson:

This is in response to Deputy Prosecuting Attorney Joe D. Wray's request for an opinion concerning the enforceability of a proposed Miller County Ordinance. The proposed ordinance is entitled "An Ordinance to Create a Miller County Controlled Substance Tax Stamp, and for other purposes."

If enacted, this ordinance may, in my opinion, be subject to challenge on the basis of inconsistency with state law (A.C.A.14-14-805(13), or as a legislative act that defines as an offense conduct made criminal by state law, contrary to A.C.A. 14-14-805 (6).¹ Although the ordinance on its face identifies failure to possess the "MCCSTS" as the "offense", one might successfully contend that the actual targeted offense is possession of a controlled substance. This contention may be supported by the language of Section 2 wherein it states "[a]ny person . . . in possession of such a substance, must have in their possession MCCSTS for its possession. . . ." (Emphasis added). The ordinance thus, in essence, arguably defines as an offense possession of a controlled substance, the commission of which will ultimately result in penalties in addition to those imposed under state law. The ordinance is, as a result, subject to potential challenge.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

¹ It should also be noted that each county quorum court is prohibited, under A.C.A. 14-14-805(6), from enacting legislation ". . . 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." Section 3 may therefore be challenged as authorizing fines in excess of this $500.00 limit.