Can Advertising and Promotion Commissions spend their tax revenue on advertising that strictly promotes a private enterprise?
An attorney general's opinion released today says no. (But there is some wiggle room for burger tax custodians in promoting private enterprises in a city.)
PS -- Saunders said he requested the opinion on behalf of a constituent who objected to the appearance of such private entities as the Arlington Hotel, Oaklawn Park and Magic Springs in Hot Springs A&P ads. My opinion is that you can do general advertising in behalf of a city and include images of a variety of that city's attraction without running afoul of the law. But my opinion and a quarter will buy you one punch of the button on one of Oaklawn's games of skill.
Opinion 2008-121 Date 10/03/2008
Requestor: Saunders, R. D. "Rick," state representative
QUESTION Is it lawful for a local advertising and promotion commission, established pursuant to A.C.A 26-75-601 et seq., to expend funds on advertising and promoting privately owned entities located within the city, including museums, hotels, motels, arenas, sporting venues, amusement parks, theaters and other attractions?
RESPONSE: In my opinion, any inquiry into the expenditure of advertising and promotion funds (generally referred to as the "hamburger tax") in a manner that might promote private interests will ultimately turn upon the facts of a particular case. To the extent that such expenditures might be characterized as primarily "advertising and promoting of the city and its environs," see A.C.A. 26-75-606, such expenditures might be deemed lawful notwithstanding the fact that private interests might benefit thereby. However, in my opinion, any straightforward promotion of private interests using public advertising and promotion funds -- which appears to be the use contemplated in your request -- would invite challenge as violating the provisions of Ark. Const. arts. 12, sec. 5 and 16, sec. 1.
Author: Jack Druff