If A sells goods to B and B pays most of the price down and takes delivery, and then pays the balance with a check that is returned for insufficient funds, can B be prosecuted under the hot check law? 5-37-307; 21-6-411; 16-21-120. ANSWER: No. The hot check law was amended in 1985 so as to excl

s+ STATE OF ARKANSAS OFFICE OF THE ATTORNEY GENERAL 4a 201 EAST MARKHAM STREET : HERITAGE WEST BUILDING ; ORNEY GENE LITTLE ROCK, ARKANSAS 72201 (O0N) S78 2007 ATTORNEY GENERAL April.28, 1986 APINTON NO. 86-195 . The Hon. ‘Bill Walters, Senator P.O. Box 280 af Greenwood, Arkansas 72936 Dear Senator “Walters: ‘This is in response to your request for an opinion. In order to effectively state the question it is appropriate to establish a hypothetical set of facts as follows: - A sells goods to B for $9,500. 8B pays A $7,000 at the time of delivery and promises to pay the remaining $2,500 later. B then writes a check for the ee $2,500 which was returned because of — -insufficient funds. The question then .’ becomes whether B can be prosecuted for oo ee violation of the Arkansds Hot Check Law +. .e.7 7 2 ON J ow7 Ark. Stat. Ann. §§67~719, et. seq. re rs > me (Repl. 1979 and Supp. 1985). - This question is controlled by the case of Ridenhour_ Vv. State, 279 Ark. 240, 650 S.W.2d 575 (1983). In that case, wRidenhour, purchased cattle from an auction house. He took possession of the cattle and charged the purchases to his. “Open account. He later wrote three checks to cover” the ”, purchases,. all of which were returned for insufficient . -funds "Later Ridenhour: gave the auction house one large’ check in return- for. the three dishonored checks. : The 1a ¢heck ‘was. also. returned for insufficient funds. ..He“w Arkansas. Hot ‘Check Laws “on appeal, he. ‘argued ‘the one large check: was. only '“evidence of a debt for a sale'on an open ‘account. “The -“Supremé Court. noted that the original hot ‘check statute“: - included: "pre- existing debts". as a ‘violation. * * The* ‘phrase. .::: ‘was however deleted by. the 1977 ‘amendment. -The court. agréed. oe . with Ridenhour that the check was for a pre- vexisting. debt. ——_ “and ‘Teversed, Ridenhour" Ss conviction. aE Betas In analyzing that case the Supreme Court also looked at Sharpensteen v. State, 222 Ark. 519, 261 S.W.2d 537 (1953). “ prosécuted. under the Hot Check Law. “oo. price, the balance became a pre-existing debt. “ “.Was.a pre- ~existing‘deabt, B.could not be prosecuted for. There, Sharpensteen had purchased some chickens in Missouri, which were delivered to him the next day in Arkansas. A few days later the seller came to Sharpensteen's place of , business in Arkansas and picked up a check for the chickens. The check was drawn on a bank in Oklahoma and returned for insufficient funds. The Court found that Sharpensteen had not violated the Arkansas Hot Check Law. The Court stated: ..- . Obviously, on.the facts here, appellants ‘had bought and received the chickens in Missouri three or: four days before they | delivered their check to Edwards in Arkansas. By delivering this check to Edwards, appellants secured nothing in Arkansas in addition to the chickens which they already had, which had been purchased in Missouri, and there delivered to them a few days before. This sale and delivery in Missouri constituted, in effect, an open account. Sharpensteen v. State, 222 Ark. at 522, The holding in these two cases is clear: the Arkansas Hot Check .Law.does not apply in instances where an insufficient check is given to pay '@ pre-existing indebtedness. The legislature in 1985 amended the Arkansas Hot Check Law but the amendment expressly stated that it would not apply to pre-existing debts. Ark. Stat. Ann, oo S$§67- 726: =~ 67> 728. (SUPP... 1985)... PO hie “When this law is applied: to -the hypothetical set of oe . facts. outlined above, it becomes clear B cannot.be When B took delivery of the goods and promised to pay the balance of the contract.. cence te hea -Because ith ae ~weiting: an. insufficient check’ to Pay. the balance. ":" cone This opinion; “which I hereby ‘approve, was prepared by» “Assistant Attorney General Joel. 0. Huggins. — Ae ae ee ‘Sincerely yours, | STEVE CLARK are Attorney General (99 oe ER ony July 9, 1986 - Honorable David kh. Rogers Munledpal Judge P.O, Box 925 Greenwood, Arkansas 72936 Gear Judge Rogers? . As you point out under thea latest statute constables have no authority to appoint deputies unless. they are in a county whose population is not less then 280, ana, mae “* Tf reserve constables will exercise basicly the same authority ::.. .. ' as constables it would appear that constables could ff. oe oa Byron ; mot! appoint a reserve constable, " ee the: ‘Attorney General” ig ‘authorized to ‘tender ‘formal ‘and. offic al - ‘opinions to officers and departments of thé State government: only..i3:" Necessarilly, therefore, the forezoing is. not to be considered a ....- formal opinion of the Attorney General but is an informal and unofficial expreasion of view siven with the desire to be helpful | to you. Youre truly, STEVE CLARK By: RODNEY PARHAM . Chief Deputy Attorney General | SC:RP:1lm