Failure to vacate to remain a crime in Arkansas

Arkansas has the distinction of being the only state that criminalizes failure to vacate a property where the rent is overdue. The Arkansas Legislature likely won’t change that during this session.

HB 1798, sponsored by Rep.Nicole Clowney, D-Fayetteville, was voted down Monday (April 5) during the House Insurance & Commerce committee meeting. Prior to the vote, Clowney said her bill only applied to the criminal element of the law and didn’t impact the civil remedies available to landlords.

Under state law, a landlord can start the eviction process one day after rent hasn’t been paid. In most situations, the renter is given a 10-day notice to vacate the premises. Non-payment is not a crime, but failure to vacate is. Not vacating can lead to a fine, but no jail time, similar to a traffic citation. A failure to appear in court citation (FTA), which can be issued once a tenant is charged with non-vacating, can lead to possible jail time.

Rep. Jimmy Gazaway, R-Paragould, said the law is short-sighted, and the state should not be involved in what every other state considers a civil matter. He noted that when a tenant is charged with a crime, it’s not the tenant versus the owner of the property in court; it’s the tenant verses the state of Arkansas.

“That’s unprecedented … Nowhere else in the country is this allowed,” he said. “It’s an improper use of the criminal process when this is a civil process.”

Several members of the committee are landlords to some degree, and many thought it was a vital tool in encouraging those who don’t pay to vacate.

Rep. Richard McGrew, R-Hot Springs, said he owns properties and vacating non-paying tenants is a serious problem. It can take on average at least three months to remove them, and the minimal cost to do so is $1,000 or more, he said. In one instance, he evicted a tenant that still owed $3,000 in back rent. The tenant smeared feces all over the walls before they left, he added.

McGrew said he’s not aware of anyone who has been jailed for not vacating. He also said that it’s “impossible to levy a failure to vacate citation” without giving a 10-day vacate notice first. The representative said if this bill failed, he would work towards a compromise bill.

Clowney told the committee her intention was not to vilify landlords. She noted the current law doesn’t criminalize property destruction as outlined by McGrew. She said she doesn’t think the state should be “strong arming tenants,” and that repealing the criminal section of the law was the “humane” thing to do.

It was noted during the discussion that many prosecutors in the state refuse to bring criminal charges in cases like this. Hot Springs, Texarkana, Russellville, and some places in south Arkansas still have prosecutors and judges that are willing to adjudicate these cases in criminal court.

In other committee business, a bill that would require electric utilities to have an emergency plan in place for the disabled and elderly during catastrophic weather events and a requirement that those utilities notify local governments about rolling power outages was approved by the committee.

Rep. Reginald Murdock, D-Marianna, said he introduced bill HB 1557 after a record-setting winter storm blanketed the state in February. To deal with the overwhelming demand as temperatures hovered near zero for several days across the state, utilities had to utilize rolling blackout to meet demand.

Many had no idea when the blackouts would occur, he said. He worked with the utilities on the bill and they approve of the legislation, he added.

The emergency plan under the bill would require utilities to identify emergency warming centers and other “emergency mechanisms” per the bill. The plan must designate a point of contact person. It also must, in as far in advance as possible, notify customers if a rolling blackout is planned.