April 7, 1994
Charles J. Nooe, City Attorney City of Eden 607 Washington Street Eden, North Carolina 27288
Re: Advisory Opinion: Local Ordinance Prohibiting Consumption of Malt Beverages and Unfortified Wine on State Highways; N.C.G.S. 18B-300
Dear Mr. Nooe:
In response to your March 18, 1994 letter, it is the opinion of this office that a local ordinance may not prohibit consumption of malt beverages and unfortified wine on State highways within the corporate limits of the City of Eden. N.C.G.S. 18B-300(a) must control.
Your letter states that the City of Eden has adopted or intends to adopt an ordinance making it unlawful for a person to consume malt beverages and unfortified wine within, on, or upon the rights-of-way of the public streets of the city. The question is whether this ordinance can be extended to include State highways running through the city limits of Eden. N.C.G.S. 18B-300(a) provides: "Except as otherwise provided in this Chapter, purchase, consumption and possession of malt beverages and unfortified wine by individuals 21 years old and older for their own use is permitted without restriction." This same section provides, however, that a city or county may, by ordinance, regulate the "consumption" of malt beverages and unfortified wine on property "owned or occupied by that city or county." N.C.G.S. 18B-300(c).
The Department of Transportation is responsible to repair, construct, reconstruct and maintain highways at the expense of the entire State. N.C.G.S. 136-45. This same responsibility falls on the State even though the highway is located within the corporate limits of a city. N.C.G.S. 136
66.1. It is clear, therefore, that State highways running through the corporate limits are not "property owned or occupied by" the city. N.C.G.S. 18B-300(c).
Although a city has authority to enact ordinances to protect the health, safety, and welfare of its citizens and the peace and dignity of the city (N.C.G.S. 160A-174), such an ordinance cannot contravene State law. The clearly established rule of law is that general laws prevail over ordinances. State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973). An ordinance which makes criminal or illegal any conduct that is legalized and sanctioned by the General Assembly is invalid. Davis v. City of Charlotte, 242 N.C. 670, 89 S.E.2d 406 (1955).
The General Assembly has specifically incorporated this rule of law into Chapter 18B. Except as provided in this Chapter, local ordinances establishing different rules on the manufacture, sale, purchase, transportation, possession, consumption, or other use of alcoholic beverages or requiring additional permits or fees, are prohibited. N.C.G.S. 18B-100.
Unlike mixed beverages, spirituous liquor, and fortified wine which may not be consumed on any public road, street, highway, or sidewalk [N.C.G.S. 18B-301(f)(1)], malt beverages and unfortified wine may be possessed and consumed unless prohibited. No local ordinance may add additional restrictions to the right granted by the General Assembly.
We hope this letter has answered your questions. If we can be of further assistance, please do not
hesitate to call upon us.
William N. Farrell, Jr.
Senior Deputy Attorney General
Isaac T. Avery, III
Special Deputy Attorney General