OFM«87 OTATED 2012-2013 ADVANCE CODE SERVICE Pamphlet Number 1 May 2012 Updates the 2011 Supplement II Prepared by the Editorial Staff 1 ofthe Publisher 1 €) LexisNexis Arkansas Code OF 1987 Annotated Prepared by the Editorial Staffofthe Publisher Under the Direction and Supervision ofthe ARKANSAS CODE REVISION COMMISSION Senator David Johnson, Chair Senator Sue Madison Representative John Vines Representative Darrin Williams Honorable Bettina E. Brownstein Honorable Don Schnipper Honorable David R. Matthews Honorable Stacy Leeds, Dean, University ofArkansas at Fayetteville, School ofLaw Honorable John DiPippa, Dean, University ofArkansas at Little Rock, School ofLaw Honorable Warren T. Readnour, SeniorAssistant Attorney General Honorable Marty Garrity, Assistant Director for Legal Services of the Bureau ofLegislative Research (® LexisNexis © Copyright 2012 BY The State of Arkansas All Rights Reserved LexisNexis and the Knowledge Burst logo are registered trademarks, and Michie is a trademark ofReed ElsevierProperties Inc. used underlicense. MatthewBenderisaregistered trademarkof Matthew Bender Properties Inc. 4079621 ISBN 978-0-7698-5583-7 LexisNexis (fp Matthew Bender & Company, Inc. 701 East Water Street, Charlottesville, VA 22902 www.lexisnexis.com (Pub.40795) PREFACE The 2012-2013 Advance Code Service keeps the Arkansas Code of 1987 Annotated as current as possible by providing notes to cases and law reviews, and updated table and index entries, as well as other pertinent information, in the interim period between the publication of Supplements to the Code. Each Advance Code Service pamphlet is cumulative and may be recycled or discarded upon receipt ofthe next pamphlet. Material in the Advance Code Service follows the structure of the Arkansas Code of 1987 Annotated and should be used in conjunction with the Code and its 2011 Supplement. A stylistic change has been made to the note analyses but the content is the same. This pamphlet contains updates to the legislation enacted by the Arkansas General Assembly at the 2011 Regular Session and the 2012 Fiscal Session. Annotations are to the following sources: Arkansas Supreme Court and Arkansas Court ofAppeals Opinions through 2012 Ark. LEXIS 146 (March 15, 2012) and 2012 Ark. App. LEXIS 324 (March 14, 2012). Federal Supplement through February 22, 2012. Federal Reporter 3d Series through February 22, 2012. United States Supreme Court Reports through February 22, 2012. Bankruptcy Reporter through February 22, 2012. Arkansas Law Notes through the 2008 Edition. Arkansas Law Review through Volume 61, p. 787. University ofArkansas at Little Rock Law Review through Volume " 30, p. 267. ALR 6th through Volume 64, p. 655. ALR Fed. 2d through Volume 46, p. 473. Visit the LexisNexis website at www.lexisnexis.com for an on-line bookstore, technical support, customer service and other company information. For further information or assistance, please call us toll free at 1-800-833-9844, fax us at 1-800-643-1280, e-mail us at [email protected], or write: Arkansas Code Editor, LexisNexis, 701 East Water Street, Charlottesville, Virginia, 22902. LexisNexis iii Digitized by the Internet Archive 2013 in http://archive.org/details/govlawarcode201201 TITLE 2 AGRICULTURE SUBTITLE LIVESTOCK 3. CHAPTER. 35. MARKETING, SALE,AND TRANSPORTATION. SUBTITLE LIVESTOCK 3. CHAPTER 35 MARKETING, SALE, AND TRANSPORTATION subchapter. 3. Arkansas Beef Council. — Subchapter 3 Arkansas Beef Council SECTION. — — 2-35-303. Creation Members Orga- nization. — — 2-35-303. Creation Members Organization. (a) The Arkansas BeefCouncil is created. (b)(1) The council shall be composed ofseven (7) members appointed by the Governor and confirmed by the Senate as follows: (A) Three (3) cattle producer members shall represent the Arkan- sas Farm Bureau Federation and shall be appointed from a list of names submitted by the board ofdirectors ofthat organization; (B) Three (3) cattle producer members shall represent the Arkan- sas Cattlemen's Association and shall be appointed from a list of names submitted by the board ofdirectors ofthat organization; and (C) One (1) member shall be an active Arkansas livestock market operator who shall be appointed from the state at large. (2) Each year, not less than thirty (30) days prior to the expiration of the terms of the current council members whose terms expire in that year, the organizations named shall submit to the Governor two (2) nominees foreach position to be filled on the council from the respective organizations. The Governor shall appoint a succeeding member to the council from each organization's list ofnominees. (3) Each memberselected shall servefora term ofthree (3)years and until his or her successor is duly selected as provided in this section. (4) Vacancies in any unexpired term shall be filled by the Governor for the remainder ofthe unexpired term. The member appointed to fill 3-5-1102 ALCOHOLIC BEVERAGES 2 the vacancy shall represent the same organization as the person whose term is unexpired. (c) Members of the council shall meet and organize immediately after their appointment and shall elect a chair, a vice chair, and a secretary-treasurer from the membership of the council whose duties shall be those customarily exercised by those officers or specifically designated by the council. (d) The council may establish rules and regulations for its own government and for the administration ofthe affairs ofthe council. History.Acts 1983,No. 160, § 2;A.S.A. Publisher's Notes. This section is be- 1947, § 78-1902. ing set out to reflect a correction in (b)(1). TITLE 3 ALCOHOLIC BEVERAGES CHAPTER. — 5. BEER AND WINE MANUFACTURE, SALE, AND TRANSPORTATION GENERALLY. ON-PREMISES CONSUMPTION. 9. CHAPTER 5 — BEER AND WINE MANUFACTURE, SALE, AND TRANSPORTATION GENERALLY SUBCHAPTER. — 11. Beer Wholesalersand Suppliers. — — Subchapter 11 Beer Wholesalers and Suppliers SECTION. 3-5-1102. Definitions. 3-5-1102. Definitions. (a) The following words or phrases, or the plural thereof, whenever they appear in this subchapter shall have, unless the context clearly requires otherwise, the meanings ascribed to them in this section: (1) "Agreement" means any agreement between a wholesaler and a supplier, whether oral or written, whereby a wholesaler is granted the right to purchase and sell a brand or brands ofbeer sold by a supplier; (2) "Ancillary business" means: (A) A business owned by the wholesaler, by a substantial stock- holder ofa wholesaler, or by a substantial partner ofa wholesaler the primary business of which is directly related to the transporting, storing, or marketing ofthe brand orbrands ofbeer ofa supplierwith whom the wholesaler has an agreement; or — 3 BEERAND WINE MANUFACTURE, SALE, ETC. 3-5-1102 (B) Abusiness owned by a wholesaler, a substantial stockholder of a wholesaler, or a substantial partner ofa wholesaler which recycles empty beverage containers ofthe supplier; (3) "Beer" includes light wine and shall carry the same definitions as set forth in § 3-5-202(3) and (4); (4) "Designated member" means and includes: (A) The spouse, child, grandchild, parent, brother, or sister of a deceased individual who owned an interest, including a controlling interest, in a wholesaler; (B) Any person who inherits under the deceased individual's will or under the laws ofintestate succession ofthis state; (C) Any person or entity which has through a valid testamentary device bythe deceased individual succeeded the deceased individual's ownership interest in the wholesaler pursuant to a written contract or instrument which has been previously approved by a supplier; (D) The appointed and qualified personal representative and the testamentary trustee of a deceased individual owning an ownership interest in a wholesaler; and (E) The person appointedby a court as the guardian orconservator ofthe property of an incapacitated individual owning an ownership interest in a wholesaler; (5) "Director" means the Director ofthe Alcoholic Beverage Control Division; (6) "Good faith" means honesty in fact and the observance ofreason- able commercial standards offairdealingin the trade, as defined in and interpreted under the Uniform Commercial Code, § 4-1-201; (7) "Reasonable qualifications" means the standard ofthe reasonable criteria established and consistently used by the respective supplier for similarly situated wholesalers that entered into, continued, or renewed an agreement with the supplier during a period of twenty-four (24) months prior to the proposed transfer of the wholesaler's business, or for similarly situated wholesalers who have changed managers or designated managers during a period oftwenty-four (24) months prior to the proposed change in the manager or successor manager of the wholesaler's business; (8) "Retaliatory action" means the refusal to continue an agreement, or a material reduction in the quality ofservice or quantity ofproducts available to a wholesaler under an agreement, which refusal or reduc- tion is not made in good faith; (9) "Sales territory" means an area of exclusive sales responsibility for the brand or brands ofbeer sold by a supplier as designated by an agreement; (10) "Similarly situated wholesalers" means wholesalers of a sup- plier that are of a generally comparable size, and operate in markets with similar demographic characteristics, including population size, density, distribution, and vital statistics, as well as reasonably similar economic and geographic conditions; (11) "Substantial stockholder or substantial partner" means a stock- holder of or partner in the wholesaler who owns an interest of ten 3-8-306 ALCOHOLIC BEVERAGES 4 percent (10%) or more of the partnership or of the capital stock of a corporate wholesaler; (12)(A) "Supplier" means a manufacturer or importer of beer and light wine brands as registered with the director. (B) "Supplier" does not include a small brewery under the Arkan- sas Native Brewery Act, § 3-5-1401 et seq.; (13) "Transfer of wholesaler's business" means the voluntary sale, assignment, or other transfer often percent (10%) or more or control of the business or all or substantially all ofthe assets ofthe wholesaler, or ten percent (10%) or more or control of the capital stock of the wholesaler, including, without limitation, the sale or other transfer of capital stock or assets by merger, consolidation, or dissolution, or ofthe capital stock of the parent corporation, or of the capital stock or beneficial ownership of any other entity owning or controlling the wholesaler; and (14) "Wholesaler" means a wholesaler of beer and light wine as licensed by the Alcoholic Beverage Control Board and as defined in § 3-5-202(10). (b) Other words and phrases used in this subchapter shall have the meanings ascribed to them in §§ 3-1-102 and 3-5-202, as amended, and any acts amendatory thereof, supplementary thereto, or substituted therefor unless the context clearly requires otherwise. History. Acts 1991, No. 8, § 2; 1991, Amendments. The 2011 amendment No. 866, § -2; 2011, No. 982, § 1. inserted present (a)(12)(B). Publisher's Notes. This section is be- ing set out to reflect a correction to the 2011 supplement. CHAPTER 8 LOCAL OPTION — Subchapter 3 Proceedings Pursuant to 1935 Act 3-8-306. Certificate of election results. RESEARCH REFERENCES ALR. Validity, Construction and Appli- riods Governing Election Contests. 60 cation ofState Statutory Limitations Pe- A.L.R.6th 481. 3-8-309. Contests of elections. RESEARCH REFERENCES ALR. Validity, Construction and Appli- riods Governing Election Contests. 60 cation ofState Statutory Limitations Pe- A.L.R.6th 481.