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Council agrees to wait for changes to smoking ban

May 3, 2006

ADAM WALLWORTH

Bars will remain bars in Fayetteville until a judge rules in the suit over the city’s ban on tobacco smoke.

Aldermen agreed Tuesday to a limited injunction sought by four business owners in a lawsuit challenging the constitutionality of the city’s ban on tobacco smoke in the workplace. The focus of the suit is the definition of a bar, which was set to change Monday to reflect a stricter interpretation by Police Chief Frank Johnson.

City Attorney Kit Williams presented aldermen with his recommended course of action, which included approving a consent order that applies to businesses that were exempt from the ordinance when the law suit was filed. Part of the agreement is that the plaintiffs reduce their damages from $100,000 to $1,000, he said.

The suit was filed by attorney W. H. Taylor on behalf of: Tony Catroppa, owner of Platinum Cabaret, Wild On and Tony’s Bar and Grill; Mark Wright, owner of On the Mark; Rick Schweik, owner of Cool Water Cafe; and Jerry Stiles, owner of Art’s Place.

Williams said he could not recommend the injunction as it was initially sought, which would have suspended all enforcement of the ban, though the suit only challenges a certain part.

The ban is an updated version of a previous ordinance, which created separate sections for smoking and nonsmoking. Voters approved the stricter law in 2004 after opponents petitioned to have an election over the ordinance initially approved by the council.

Johnson reinterpreted the definition of a bar, which is exempt from the ordinance, after aldermen expressed their frustration over the interpretation of the previous chief, Rick Hoyt. Under the new interpretation, a business cannot sell warmed, cooked or prepared food and be considered a bar.

Williams said he does not think the city is in danger of losing the suit and having to pay damages because the court typically shows deference to legislators, especially after the law is affirmed by the electorate. However, he said, it would be good for the city to agree to the terms to reduce the number of damages sought, though that number could go up in the future.

Ward 2 Alderman Don Marr, the primary sponsor of the law, seconded Ward 3 Alderman Bobby Ferrell’s motion to approve the consent order.

Ferrell favored the insurance against the possibility of higher damages.

Marr said he supports Johnson’s interpretation of the law and said other communities have already been through the courts. “We’re right where we need to be,” Marr said.

Cambre Horne-Brooks, executive director of the Northwest Arkansas Tobacco Free Coalition, said she’s not worried about the lawsuit, especially in light of the statewide ban, which will take effect mid-July. If the statewide ban were to apply instead of Fayetteville’s, she said, businesses would have to weigh the ramifications of serving and employing anyone under 21.

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Police Plan To Tighten Smoking Ban Enforcement

 March 22, 2006 

The Fayetteville Police Department plans to tighten its regulation of the city’s existing smoking ban.

Deputy Chief Greg Tabor says any establishment that serves more food than something poured out of a bag will be considered non-smoking.

Fayetteville voters approved a smoking ban for restaurants in February 2004. Police officers began enforcing the new law based on a ratio that bars could receive no more than 30 percent of their profit from food sales.

The issue resurfaced in January after managers of Alligator Ray’s sent city officials a letter saying the establishment intended to operate as a bar rather than a restaurant. Several city officials questioned whether Alligator Ray’s was a restaurant or bar, and the issue was referred to the city’s Ordinance Review Committee for clarification.

Tabor said it was clear that aldermen believed only incidental food items should be served at bars. He said letters were sent last week alerting 40 bar and restaurant owners of the changes, which will begin May 1.

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Smoking Ban Definition Questioned

February 2, 2006

Dan Craft

FAYETTEVILLE — Fayetteville officials knocked the definition of the word “incidental” around Wednesday night, trying to decide the difference between a restaurant and a bar.

 Police Chief Frank Johnson asked for clarification of the term after a downtown establishment attempted to change its status from a restaurant to a bar to allow smoking on the premises.

 A city smoking ordinance passed in 2004 banned smoking in restaurants and other workplaces, but exempted bars from the ban.

 At issue is the definition of a bar, defined in the ordinance as an establishment “devoted primarily to the sale and service of alcoholic beverages for on-premises consumption and where the service of food, if any, is incidental to the consumption of such beverages.”

 Police have been using a 70-30 ratio to determine bar or restaurant status in the absence of a better definition, Johnson said. A site is considered a bar if alcohol accounts for 70 percent of sales.

 Council members balked at setting a percentage in the ordinance, and rejected other, more-specific definitions as well, said Don Marr, a council member.

 “We chose purposefully not to go with a percentage: 70-30 would have opened up a ton of issues, and that’s why we didn’t use it,” Marr said. “I understand the police need some sort of gauge, but I find it hard to believe that incidental is too hard to understand.”

 Mayor Dan Coody, however, said the vagueness of the language leaves the police to interpret the law rather than simply enforce it.

 “We need some help in clarification,” Coody said. “We do want to get away from a percentage. This was the biggest brouhaha in several years when it passed, and we knew we’d find the day when we’d have to re-examine it and clarify if necessary.”

 Different people will always have differing definitions of the word, and the most accurate assessment should come from the affected businesses, said Robert Rhodes, a council member.

 “I think we’re the wrong group to make this decision. This conversation will roll better if you include the people it’s going to impact,” Rhodes said. “They are the ones who can give you the best scenario, the one everybody could live with.”

Marr questioned the role of establishments that have menus but are classified as bars.

 “You can get a surf and turf here, but they’re exempted as a bar,” he said, holding up one menu. “Incidental, to me, means you don’t have a children’s menu in your bar. Pretzels or a bag of chips, that’s incidental.”

Many of the establishments in question hold restaurant, on-premises liquor licenses from the state, said Kit Williams, city attorney. The state definitions for restaurants and bars, however, do not match the city’s wording.

“We have establishments that represent themselves as restaurants to the state, but turn around and tell the city they’re a bar,” Williams said. “I don’t think it’s proper to allow these businesses to talk out of both sides of their mouths like that.”

 Additional input will be sought by Coody and city administrators.

 “We can get more input, but I don’t really look for a consensus to come out of that,” Williams said. “You won’t get everybody holding hands and singing ‘Kumbaya’ by the end. It will be a tough decision.”

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Smoking-Ban Definitions Questioned

City to Review Smoke-Free Workplace Ordinance

January 24, 2006

Dan Craft

FAYETTEVILLE — One Fayetteville business’ attempt to redefine itself has hastened a city review of a workplace smoking ban, city officials said.

Managers of Alligator Ray’s sent Fayetteville officials a letter last month saying the establishment intended to operate as a bar rather than a restaurant, said Ben Hynum, general manager of Alligator Ray’s, off Dickson Street.

Restaurants are smoke-free under a city ordinance that took effect in March 2004 following a citywide election. Bars, however, are exempted from the ordinance.

Alligator Ray’s began to allow smoking after informing the city of its intent to operate as a bar, Hynum said.

Last week, police officers warned Hynum to remove ashtrays because Ray’s was not on the department’s list of designated bars and was considered a smoke-free restaurant.

Now, police and other city officials are re-examining the definition of bars and restaurants.

“Just declaring yourself a bar doesn’t make it so,” said Kit Williams, city attorney. “It’s not enough for a business to just announce it, but there’s no clear way spelled out in the ordinance to make a switch.”

Food service must be “incidental” to a primary focus on alcoholic beverage service to qualify an establishment as a bar, according to the ordinance.

Police have been using a 70-30 percent ratio of alcohol to food sales to determine the line between bars and restaurants, said Greg Tabor, deputy police chief.

“Obviously, we needed some sort of threshold,” Tabor said. “With established businesses, it’s a matter of getting a statement from their accountant, but nobody’s ever tried to switch before. That process is all Greek to us.”

Alligator Ray’s serves a dinner menu of Cajun food as well as a full bar including specialized frozen drinks.

One business that began operating after the ban took effect came to police asking to be put on the bar list, Williams said. Officials allowed Tony’s Bar and Grill to permit smoking, giving them 60 days to compile numbers to prove its 70-30 ratio, he said.

Hynum said he was under the impression that Alligator Ray’s would have the same 60-day grace period to show revised numbers.

“It was a miscommunication,” he said.

Compounding the problem is a difference in regulations between the city and the state Alcoholic Beverage Control Commission, Tabor said.

Some types of state alcohol permits are given to restaurants, but commission guidelines have different definitions of the word “restaurant,” none of which use the 70-30 ratio employed by the city, said Donald Bennett, staff attorney for the commission.

That has led to permits issued to establishments regarded as restaurants by the state, but as bars by the city, Williams said.

The Police Department works from a list compiled after the city ordinance passed in 2004. Although the list has been updated several times — most recently last April — 10 of the 40 bars listed are either out of business or operating under new names.

The issue has been referred to the city’s Ordinance Review Committee for possible revision, according to a statement released Wednesday by Mayor Dan Coody’s office.

In the interim, police will follow the same guidelines used in the past and do not plan to issue citations at Alligator Ray’s or other establishments that do not appear on the police list but where smoking has been permitted, Tabor said.

“We’re going to stick with what we’ve been doing until we get some sort of resolution,” he said. “We’ve been discussing these definitions for a few weeks, but this incident sort of brought it to the front burner. As officers, we’d like to stay away from trying to interpret the law and stick to enforcement.”

Any changes to the ordinance recommended by the review committee will be forwarded to the City Council. The review committee meets Feb. 1.

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Economists Study Effects Of Fayetteville Smoking Ban

May 31, 2005

Study Suggests Ban Hasn’t Slowed Economic Growth In Fayetteville

FAYETTEVILLE, Ark. — The Center for Business and Economic Research at the University of Arkansas released the results Tuesday of a study that suggests the effects of a smoke-free law has not hurt business in Fayetteville.

According to the center’s report, the study looked at tax collections from 1994 to 2005 and found that employment and sales continued to grow in both Washington and Benton counties. The study’s findings suggest that the smoking ban didn’t stop economic growth and didn’t hurt business at area restaurants and bars.

Waiters, waitresses and business owners who spoke to 40/29 have mixed opinions about the findings.

Kindra Mayvis, who is a waitress at Grubs in Fayetteville, said the ban has allowed her to clear tables in clear air for more than a year without losing a lot of tip money from food sales.

“You have a lot of people who are regulars, and they come in to eat for the food,” Mayvis said. “They’re not worried about smoking.”

But Mavis said the people who come in to drink haven’t adapted so easily.

“It has had a negative impact — mainly on late night,” she said.

Nonetheless, the study released Tuesday suggests that the smoking ban has not affected business in Fayetteville. University of Arkansas economist Kathy Deck said the negative economic perception held by some business owners is difficult to prove.

“In 2004, I would find it a very difficult argument to make that there was a negative impact from the smoking ban,” Deck said.

Deck and her team of researchers conducted the study. She said business is still booming in Fayetteville — if only because the area itself is growing quickly, which is helping the economy.

“We certainly can’t attribute the growth in hotels, motels and restaurant taxes to the smoke-free ban,” she added. 

But a number of business owners told 40/29 that they can attribute the smoke-free policy to problems with profits and patrons.

The owners of Grubs, for example, claimed that they spend hundreds of dollars a month on fines for smoking because staff members are finding it difficult to make sure no one lights up in a packed bar. To combat that problem, Grubs is spending $25,000 to build a patio intended to help build back what owners claim is a 30-percent drop in nighttime business.

Meanwhile, officials with the Center for Business and Economic Research said they plan to keep studying the effects of the smoking ban for at least two more years.

http://www.thehometownchannel.com/news/4551979/detail.html

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Smoking ban provided year’s hottest debate

December 31 2004

BY CHARLIE MORASCH

Northwest Arkansas Times

One year ago, Fayetteville’s residents seethed over the debate on banning tobacco smoking in restaurants and workplaces and most other buildings in the city.

As 2005 approaches, a calmer community may have been affected less than anticipated.

Rick Schweik, one of the ban’s staunchest opponents, says his bar may have even become a haven for smokers after restaurants were prevented from allowing smoking. “It’s definitely helped my bar,” Schweik said. “There’s obviously a market for (smoke-legal bars).”

But the smoking ban issue has probably affected businesses both positively and adversely, experts say, in immeasurable ways.

Due to the ban’s effect on the hospitality industry an industry rife with failure and cyclical success anyway — effects of the ban may not be known for three or four years from the ban’s beginning on March 10. “It’s going to be years before you can take an accurate accounting,” said Jeff Collins, director of the Center for Business and Economic Development at the University of Arkansas.

Looking back As in 2003, much news during early 2004 was dominated by discussion of Fayetteville’s ban on smoking in restaurants, workplaces and most public places. 

The Fayetteville City Council narrowly approved the ban during a September 2003 meeting, but the battle heated up afterward, with petitioners gathering 2,932 signatures to place the smoking issue on a citywide ballot for Feb. 10.

After months of feisty campaigning between organized opponents of the smoking ban and highly organized supporters of the ban, January saw final arguments made in forums both small and large leading up to the Feb. 10 city election on the issue.

Highly organized organizations such as the Smoke Free Fayetteville nonprofit group and the Free Choice Fayetteville association opened offices and spent thousands of dollars fighting for and against the ban.

An early January forum hosted by the Fayetteville Ministerial Association included ban opponents and supporters bickering with each other afterward and even calling each other names during the forum.

Smoke Free Fayetteville said non-smokers could be compared to Rosa Parks, being subjected to secondhand smoke, and Free Choice Fayetteville characterized smoking ban proponents as Nazis.

In late January, a televised debate between four representatives of each side of the issue yielded a flurry of statistics on the smoking issue, with Smoke Free Fayetteville discussing the negative effects of second-hand smoke and Free Choice Fayetteville claiming that the hospitality industry suffers economic hardship from smoking bans in California and New York.

In the weeks leading up to the special election, election officials said an unprecedented 1,100 residents cast early ballots during the first week of early voting. “It’s just unbelievable,” Karen Combs Pritchard, county clerk for Washington County, said at the time.

Early voting turned out to be unbelievable and decisive.

Though the smoking ban question failed on the Feb. 10 election day, enough proban votes cast during early voting pushed to ban to a 5,972-5,562 victory.

City leaders declared that on March 10, a month from the election, Fayetteville police would be enforcing the ban.

Stung by the close election, some small business and restaurant owners immediately commented that they would defy the law, and a convenience store clerk even mailed in money to the city as a pre-payment on his future breaking of the law.

Though police had planned to issue only warnings for several weeks before eventually writing tickets for misdemeanor violations, a disabled 54-year-old retired Air Force veteran named Ann Vaughn forced the city’s hand by refusing to put her cigarette out in the lobby of the Hillcrest Towers highrise housing complex. “I told them, ‘ If you don’t give me a ticket, I’ll have to keep calling and sit down here and smoke all afternoon, ’” Vaughn said.

Vaughn said her civil disobedience was aimed at testing the legality of enforcing the ban in the federally funded housing building, which included a recently installed ventilation system to allow the building’s mostly senior citizen residents to smoke while congregating in the building’s lobby.

Eventually, Vaughn paid the ticket and cited expensive legal costs in not challenging the ban’s enforcement.

Since the Vaughn incident, few public spectacles have resulted from the smoking ban.

Ban or no ban? While several anonymous calls to police were made concerning alleged violations of the smoking ban at various restaurants and workplaces, Fayetteville police decided to require the complaints to include the name of those reporting violations. That decision, Schweik said, has led to few complaints about violations. “It shows there really wasn’t a need for smoking bans in bar-type of environments,” Schweik said. “A lot of the people that voted for the ban are not the type that regularly go to bars anyway.” Schweik also said he believes that several locally owned restaurants and bars that went out of business in the months following the ban’s election proved its negative effect on the local economy.

2004 saw the closing of locally owned restaurant stalwarts Hoffbrau, Ozark Brewing Company and Pete’s Place, and some of the restaurant operators said the smoking ban played a part in their failure. Hoffbrau has since reopened.

Schweik said the various closings and the first year of the smoking ban occurring were not merely coincidental.

While chain restaurants can withstand certain changes in business climate, the city’s locally operated businesses face a tougher battle, Schweik said. “Especially independent (restaurants) are working on very tight margins,” Schweik said.

Collins — who has been contracted by Smoke Free Fayetteville to compile and analyze economic statistics related to the smoking ban — disagrees.

Due to a myriad of factors that influence consumer spending and the success of restaurant establishments, Collins said determining the ban’s effect would take at least three years. “There is a cycle within the restaurant industry with revenues going up and down within the cycle,” Collins said. “People’s demand for restaurant meals depends on a lot of things, not just smoking in a restaurant.”

Collins said that both proponents and opponents of the smoking ban have a vested interest in one outcome or another coming of his study on the ban’s effect, while the city deserves to know how and why decisions such as the smoking ban have affected its business climate. “No one person can tell you that the effect is,” Collins said. “If they tell you they can, it’s because they have an agenda.”

After Schweik spent thousands altering his Cool Water Cafe restaurant and bar to separate the two businesses, he notices other bars and restaurants in town that are not complying with the smoking ban.

Some bars have even employed a don’t-ask-don’ttell system, bringing to mind images of speakeasy bar locations that operated during prohibition.

The law simply is not being enforced, Schweik said. “It has teeth to it, but it’s just not being enforced,” Schweik said. “There is one place that even enacted their own red light, green light system.”

Coming together Ironically — after nearly a year of bitter opposition, the pro-smoking ban and antiban factions agree on the enforcement issue. Barbara Price Davis, an organizer with Smoke Free Fayetteville, said enforcement problems began when former police chief Rick Hoyt was given the task of deciding which establishments would be designated as bars, which would be exempted from the ban.

Hoyt eventually decided that bars that included food revenues that made up 30 percent of their total revenues or more would be classified as restaurants and subject to the ban. “The ordinance that is in place is not the ordinance that any of the voters voted on,” Price Davis said. “The intent was that any establishment that serves food is smoke-free. That’s been a disappointment and a sadness for me and a lot of other people.”

Fayetteville Lt. William Brown said Hoyt researched the issue before making his determination — a decision that was likely to have been criticized no matter how it was made.

Cambre Horne Brooks, the leader of the Tobacco Free Coalition, said she and the organization were pleased with the ban, but said that some holes remain in the law. “I can’t reiterate enough how pleased we are to be a smoke-free community,” Brooks said. “But people have made calls to us because they were confused about some places they felt would be smoke-free that aren’t.”

Sgt. Shannon Gabbard, the public information officer, said the ordinance had drawn only one violation — Vaughn’s Hillcrest Towers act of protest — since the beginning of its enforcement 10 months ago. “The smoking ordinance’s proponents said that this ordinance will be self-enforcing, and that has proved to be true,” Gabbard said.

Due largely to obedience, enforcement or indifference, Schweik said the ban has turned out to be less dramatic than advertised. “In hindsight, it was pretty much a big scare — well, it’s turned out to be a non-ban ban,” Schweik said.
http://nwanews.com/story_print.php?paper=nwat&News;=section&storyid;=23978

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Anti-smoking groups issued letters of caution

March 17, 2004

Smoke-Free Fayetteville and the Coalition for a Tobacco-Free Arkansas have each officially received letters of caution from the Arkansas Ethics Commission.

Both groups were under investigation for violating Arkansas law on “disclosure by lobbyists” in connection with the smoking ban passed by the Fayetteville City Council on Sept. 2, 2003.

Findings from the staff’s investigation were presented for a determination at the commission’s regular monthly meeting Feb. 20.

At that time, the commission voted 4-0 in each case that disclosure laws had been violated by lobbying public servants of the city of Fayetteville and failing to timely register and make other filings with the city clerk.

Both groups were issued written offers of settlement which were signed and returned to the Ethics Commission.

Members of Smoke-Free Fayetteville acknowledged they failed to register within five days after triggering the lobbyist registration requirements.

The Coalition for a Tobacco-Free Arkansas stated they violated both the lobbyist registration and reporting requirements by failing to register as a lobbyist and report lobbying activities with the city clerk.

These public letters of caution are advisory in nature and serve to give clear notice that actions of each group violated the law.

The Ethics Commission advised each group not to engage in the same activity again.

Richard L. Maynard

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The Northwest Arkansas Times, and it’s editor, Greg Harton, have taken every opportunity to try and blacken the name of Free Choice Fayetteville. He has even gone so far as to refuse to publish a column by one of his weekly columnists because it talked about the ethics violations of the smoke-free organizations. His editorials have been downright slanderous towards Free Choice Fayetteville and has refused thus far to print the truth. Sarah Terry is the only journalist at his paper that is still covering this battle and has continued to print half-truths and lies. Let them know what you think about the lies that are being perpetuated by the Northwest Arkansas Times.

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COLUMNISTS: Same old iron fist

Posted on Tuesday, July 29, 2003

George Arnold

We’ve got it all wrong. Here we were thinking of Fayetteville as a rare bastion of liberalism in Arkansas—sort of a grander version of Eureka Springs, with a little more savvy but a lot fewer art galleries. Thinking that way about Fayetteville comes naturally. It’s a college town, home of Arkansas’ flagship university, peopled by free-thinking professors and carefree students. Fayetteville’s image of Birkenstocks and hippie locks may be a cliché by now, but the image has been cultivated carefully over the years. Liberal might be too strong a term for any place in this conservative state, other than in relative terms, so it’s best to set the usual political connotations aside. When Fayetteville’s image comes up, it’s not in the familiar Arkansas understanding of liberals as Satan’s enablers, fellow travelers, secular humanists or even the lowest of all—treasonous national Democrats. Fayetteville’s image is of a more generalized liberalism: Live and let live, hug a tree, watch a movie with subtitles. Harmless really. Gentle. Like a friendly Lab that’s getting on in years.

Such puffery has evaporated in Fayetteville’s latest brawl, the nasty fight over a proposed ordinance to ban smoking in restaurants and bars. A smoking ban is one of those stereotypical liberal issues, like gun control, abortion rights, outlawing the death penalty. Naturally, Fayetteville’s liberal set has embraced the ban, but with a grim, ashcroftian certitude that belies the old standard of living and let live.

It’s a new day in Fayetteville, a place that will now be run by folks with hyphenated last names and a need to tend to the less enlightened. In the name of the greater good and dubious statistics, all those independent business owners who have allowed the air to be poisoned will be stopped. The children will be saved, the wait staff will be spared, the casual customer’s own health will be protected. What’re a few broken eggs when you’re making that kind of an omelet?

This is the city whose mayor ran for office promising to bring everybody together, even when they disagreed. The approach didn’t take. Now, Fayetteville faces the prospect of a city council stalemated on the smoking ban, leaving Mayor Dan Coody in the unenviable position of deciding which side to please, which side to outrage. He doesn’t have much room to bring everybody together on this one.

The well-meaning mayor has already alienated a lot of his nominally liberal support. He’s made several decisions they consider too business-friendly. Maybe he’ll want to restore his ties to those previous supporters by favoring their smoking ban. But the restaurant and bar owners are also a powerful constituency in a city with a busy nightlife. The owners provide a potent source of tax revenue. Cutting into their business with a smoking ban isn’t going to do the city treasury any good.

Mere financial considerations don’t bother the anti-smoking crowd. Nor do protests that the issue is more complicated than a simple black and white matter of health. The right of an owner to decide how his business will be run? Please. This isn’t a time for theoretical discussions. This is the time to bring the smokers around. And to force the owners to cooperate in doing so.

Once, protecting the rights of a minority would have been considered a liberal concept. But Fayetteville’s smoking minority indulges in a wretched if legal, habit. So, in this case, it’s OK to force the minority of smokers to comply with the majority view. What’s a little coercion among Fayetteville’s neo-libs? Try telling that to the guy who’s enjoying a smoke and a beer at some working-class bar that’s not on Dickson Street. You know, the kind of place in which the anti-smoking zealots would never set foot; they can’t get a latte there. Yet they feel comfortable telling that guy he’ll have to step outside if he wants to light up. A kinder, gentler—and more liberal—Fayetteville is a myth. It doesn’t exist. Maybe it never did. Maybe we dreamed it up, with the assistance of those who have their own agenda. If they happen to be wearing Birkenstocks, that’s only a coincidence. They’ve gotten a taste of power and it’s so intoxicating that they’ve cast aside the liberal pretense. Another day in Fayetteville, another faction tries to stuff its ideas down the opposition’s throat. Forget the liberal image. There’s another long-established impression of Fayetteville that fits better: It remains the city of perpetual conflict and eternal infighting.

George Arnold is opinion editor of the Arkansas Democrat-Gazette’s northwest edition.

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