ABC Acts; Elections; Sale of Wine

Subject:

ABC Acts; Elections; Sale of Wine.

Requested By:

Ann S. Fulton Chief Hearing Officer Alcoholic Beverage Control Commission

Questions:

(1)

Does the ABC Commission have the authority to issue on-premise fortified and/or unfortified wine permits to qualified restaurants and hotels in the City of Gastonia?

(2)

Do the provisions of G.S. 18B-603(c)(2), and Sections 9 and 10 of Chapter 412 have the effect of superseding all previous local acts and elections in other counties and municipalities which have approved the establishment of ABC stores, but have previously either voted to allow only off-premises sales of "unfortified wines" or "wines," or voted against on-premise sales of "unfortified wines" or "wines?"

Conclusions:

(1)

The Commission may issue on-premises and off-premises fortified wine and unfortified wine permits to qualified persons and establishments in the City of Gastonia.

(2)

Yes.

The 1981 Session of the North Carolina General Assembly enacted as Chapter 412 of its Session Laws "An Act to Rewrite the Alcoholic Beverage Control Laws." By § 1 of that Act Chapter 18A of the General Statutes was repealed; § 2 enacted a new Chapter 18B to regulate intoxicating liquors. The principal provisions of Chapter 18B became effective January 1, 1982, Session Laws 1981 Chapter 412, § 11. Like Chapter 872, 1971 Session Laws, which repealed old Chapter 18 and enacted Chapter 18A, Chapter 412 generally repealed the former liquor control laws. Former Chapter 18A of the General Statutes contained a section, G.S. 18A-57 which preserved in effect local acts and the results of local option elections. Chapter 412 of the 1981 Session Laws by §§ 7, 8 and 9 repeals all local, public-local and private acts in conflict with certain enumerated sections of new Chapter 18B. Local acts not in conflict with those provisions would, of course, continue in effect.

Section 9 of Chapter 412 repeals "all local, public-local, and private acts in conflict with Article 6 of Chapter 18B . . . except as provided in G.S. 18B-604(b) and (c) and in G.S. 18B-605." G.S. 18B-605 provides:

"§ 18B-605. Local act elections. — If a jurisdiction has voted in favor of ABC stores or in favor of the sale of some kind of alcoholic beverage, pursuant to a local act enacted before the effective date of this Chapter, and the jurisdiction would not be eligible to hold another election under the conditions set by G.S. 18B-600, then that jurisdiction may hold subsequent elections under the terms of the applicable local act. Except for the authority to hold the election, however, the procedures of this Chapter shall apply to any subsequent election."

Section 10 of Chapter 412, 1981 Session Laws provides, in part:

"All sales of alcoholic beverages which were approved in elections held before the effective date of this act remain valid under the terms of those elections except as G.S. 18B-603 allows the issuance of permits that were not authorized under the comparable provisions of Chapter 18A."

Thus, the clear intent of the General Assembly is that no new elections need be held to authorize the establishment of ABC stores or the sales of alcoholic beverages. The consequences of those elections, however, are to be determined by reference to new Chapter 18B, as of its effective date, regardless of when the election was held.

The effect of various alcoholic beverage control elections on the issuance of permits is described in G.S. 18B-603. G.S. 18B-603(c)(2) provides that where the establishment of ABC stores is approved:

"(2) The commission may issue on-premises and off-premises fortified wine and unfortified wine permits to qualified persons and establishments in that jurisdiction, regardless of any unfortified wine election or any local act." (Emphasis added.)

In view of the foregoing, the following formal opinions of this Office are no longer to be regarded as authoritative: 41 N.C.A.G. 100 (8 October 1970) regarding the sale of sweet wines in Monroe 41; N.C.A.G. 630 (23 November 1971) restrictions on the sale of wine in the City of Gastonia; and 42 N.C.A.G. 4 (7 July 1972) regarding the sale of sweet wines in Monroe. The following letter opinions of the undersigned should no longer be regarded as authoritative: letter to Ann S. Fulton dated July 26, 1979, regarding sale of fortified and unfortified wines in the City of Brevard; letter of November 26, 1979, to T. D. Zwiegart, regarding sales of wine in the City of Lenoir; letter of March 4, 1980 to Ann S. Fulton, regarding sale of wine in Scotland County; letter of December 11, 1980 to Derek O. Godwin, regarding the sale of wine in the City of Shelby; letter of December 10, 1981 to O. Richard Wright, Jr., regarding wine sales in Tabor City.

The attention of the General Assembly is invited to the apparent anomaly it has created. The ABC laws give counties and qualified cities the option to vote on any of four malt beverage marketing plans, any of three unfortified wine marketing plans, ABC stores and mixed beverages. Voters have no option to vote on fortified wine sales. The courts have, in the past, drawn a sharp distinction between the sale of intoxicants by the State through its control stores, Gardner v. Reidsville, 269 N.C. 581, 153 S.E. 2d 139 (1967), and sales of intoxicants by private persons, see, e.g., Smith v. Mecklenburg County, 280 N.C. 497, 187 S.E. 2d 67 (1972); Nelson v. Board of Alcoholic Control, 26 N.C. App. 303, 216 S.E. 2d 152 (1975). The voter could, of course, quite logically favor sales by the State through control stores and oppose private sales. Nevertheless, as part of having voted for control stores the locality now acquires on- and offpremise wines sales, without regard to the wishes of the voters.

Rufus L. Edmisten Attorney General

David S. Crump Special Deputy Attorney General Special Assistant to the Attorney General