Opinion No. 1998-159

David R. Malone

Attorney General of Arkansas — Opinion
Opinion Delivered July 31, 1998

WINSTON BRYANT, Attorney General

The Honorable David R. Malone State Senator P.O. Box 1048 Fayetteville, Arkansas 72702-1048

Dear Senator Malone:

This is in response to your request for an opinion on the following question:

May the electorate of Washington County, via a referred ordinance or an initiated ordinance, totally ban sexually oriented businesses in Washington County?

I addressed a similar question in 1995, with the issuance of Op. Att’y Gen. 95-345. I have enclosed a copy of that opinion for your review. I should note that it is difficult to analyze the legality or constitutionality of a hypothetical ordinance. Any determination of such an ordinance’s legal status must be made with reference to the ordinance’s specific provisions. Opinion 95-345, however, undertakes a discussion of the general legal parameters surrounding the question. It appears that a total ban on such businesses, depending upon the facts, may be unconstitutionally overbroad under the First Amendment’s “free speech” provisions. Zoning ordinances which instead limit the locations in which such businesses may operate will come nearer passing constitutional scrutiny. Again, however, the issue is one which requires a factual review. Opinion 95-345 discusses several relevant court cases, including one federal case involving an ordinance of the City of Little Rock, (upon which certiorari by the United States Supreme Court was ultimately denied) and makes reference to two A.L.R. annotations which discuss the topic. As noted in Op. Att’y Gen. 95-345, “[a] comparison of the proposed ordinance with those at issue in these cases should offer valuable insight into the ordinance’s enforceability.”

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


WINSTON BRYANT Attorney General