USA Oil Corporation v. City of Lipscomb

JONES, Justice

(dissenting).

I respectfully dissent. This appeal presents squarely for the first time the precise issue of local versus state control of the licensing of off-premise beer sales. The effect of the City’s action in refusing USA Oil’s request for municipal privilege license was tantamount to voiding USA Oil’s state-issued Alcoholic Beverage Control license. In denying USA Oil’s petition for writ of mandamus, the trial Court explicitly upheld the validity of the city ordinance. I would hold that, under The Alabama Alcoholic Beverage Control Act, a municipality has no power to withhold the issuing of a privilege license for the sale of off-premise beer to one licensed by the State for such sales.

The Alabama Alcoholic Beverage Control Act [Title 29, § 1 et seq., Code of Alabama 1940 (Recomp.1958)] is an exercise of the State’s police power and places on the Board created therein the responsibility and the duty to regulate and control the importation, manufacture, sale and possession of all spiritous, vinous, malt and brewed beverages in this state. See Ott v. Moody, 283 Ala. 288, 216 So.2d 177 (1968); Tarrant v. City of Birmingham, 39 Ala.App. 55, 93 So.2d 925 (1957); Alabama Alcoholic Bev. C. Bd. v. City of Birmingham, 253 Ala. 402, 44 So.2d 593 (1950).

The pertinent language of these sections is found in §§ 5 and 13. § 5, which expressly delegates to the Board the authori*116ty to control the sale of beer, reads, in part, as follows:

“To control the manufacture, possession, sale, consumption, importation, use and delivery of liquor, alcohol and malt and brewed beverages, in accordance with the provisions of this chapter;” [Emphasis added.]
“To grant, issue and suspend or revoke for cause malt or brewed and vinous beverage licenses, as provided in this chapter.”

§ 13 provides:

“ . . . the board, with the approval of the governing authority of the municipality . . . shall have authority to issue a liquor license for any premises kept or operated by a hotel, restaurant or club . . . entitling the hotel, restaurant or club to purchase liquor . . and to keep on the premises such liquor and ... to sell the same and also vinous, malt or brewed beverages . . . for consumption on the . . . premises.” [Emphasis added.]

In § 5, the authority of the Board to issue liquor and beer licenses is clearly distinguished by the legislature — placing beer licenses in one category and liquor licenses in another. This distinction is recognized in the case of Paulson’s Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962), in which Mr. Justice Coleman, speaking for the Court, states:

“The legislature appears to have made a distinction between liquor licenses and beer licenses. In § 5, Title 29, the authority of the board to issue and suspend liquor licenses is stated in one sentence. Like authority as to beer licenses is stated in the sentence following immediately thereafter. The issuance of liquor licenses is dealt with in §§ 13, 14, 15 et seq., Title 29, while the issuance of retailer’s beer licenses is provided for in § 25 et seq., of the same title. § 22, Title 29, provides that every license issued to a restaurant for the sale of liquor shall authorize the licensee to sell vinous or brewed beverages at the same place, subject to certain restrictions. The quoted Code sections require approval of the municipal governing body for the issuance of liquor licenses, but, so far as we are advised, the statute does not state that such approval is. required for the issuance of beer licenses.”

In this opinion the use of the term “control” in the Act denotes a complete delegation of the duty and the necessary power to exercise unfettered control; and, therefore, that control to regulate and govern must be dominant. The majority opinion renders the ABC Board subservient to the authority - of the municipality where the statute evinces a contrary intent.

In § 13, a measure of this power to regulate and control is expressly delegated to municipalities in the granting of the State’s license for the sale of liquor and the sale of beer when the sale is for on-premise consumption. See Reams v. State ex rel. Clokey, 45 Ala.App. 614, 234 So.2d 893 (1970). This express area wherein municipal control can be exercised over State licensure for on-premise consumption has no similar reservation granting the cities power to regulate licensure for mere off-premise sales. The provisions written into the language of the Act granting municipalities the power to control on-premise beer sales (Norwood v. Capps, 278 Ala. 218, 177 So.2d 324 (1965), and Paulson’s Steerhead Restaurant, Inc. v. Morgan, supra) leads necessarily to the conclusion that the legislature clearly did not intend to allow cities to regulate off-premise sales, since to have allowed such regulation the legislature would have made an express exception. This legislative intent of exclusiveness cannot be overridden or curtailed except by another equally plain declaration. The applicable rule of statutory construction is expressed by the legal maxim, ex-pressio unius est exclusio alterius. See Glencoe Paving Company v. Graves, 266 *117Ala. 154, 94 So.2d 872 (1957); Weill v. State ex rel. Gaillard, 250 Ala. 328, 34 So. 2d 132 (1948); 82 C.J.S. Statutes § 333, p. 666.

Our previous consideration of this matter has in near uniformity held that the delegation of administrative regulatory power is absolute and beyond local interference. In Campbell v. City of Hueytown, 289 Ala. 388, 268 So.2d 3 (1972), appellant sought reversal of the trial court’s denial of mandamus to compel issuance of an off-premise municipal beer license. The city had so aligned its zoning ordinances as to prohibit the sale of beer even though appellant was licensed by the State ABC Board. We held that a municipality may not by zoning or otherwise prohibit the sale of beer where such sale has been licensed by the State. In the recent case of Willis v. State ex rel. Flynt Oil Company, Inc., 290 Ala. 227, 275 So.2d 657 (1973), appellant operated a cafe-service station-laundromat, and possessed a State off-premises beer sale license at the time the municipality denied him a municipal privilege license. This Court, in recognizing that the legislature had fully occupied the field of regulation of alcoholic beverages and in granting summary affirmance of the lower court’s order to issue the license, said:

“Given the existing state of the law, a municipality may not prohibit sale of beer where such sale has been licensed by the State of Alabama.”

I do not consider it distinguishing that in Campbell and in Flynt Oil there was virtually total prohibition, whereas in the present case there is only a transitory prohibition.

Ordinance 183, in question here, which has as its net effect the total prohibition of the sale of beer in Lipscomb, is purported to arise from the early Alabama prohibition enabling Statute found in Title 37, § 487, Code of Alabama 1950 (recomp. 1958). This 1909 Statute, in applicable parts, grants to all cities:

“. . . the power to adopt ordinances not inconsistent with the laws of the state to promote temperance and to suppress intemperance, and to suppress the traffic in such beverages as the laws of the state prohibit to be manufactured, sold or otherwise disposed of . . . .”

The City argues its Ordinance is a valid limitation on the exercise of the beer sale license arising variously from the police power, or its zoning power, or its power to tax. Our decisions, however, have held that such regulations have the effect of diluting state control and regulation of the field and, in my opinion, must fall.

In Ott, the municipality required a licensee to operate its establishment as a restaurant as a condition of maintaining its liquor license. Subsequent to state and municipal licensure the city sought to revoke-its license, claiming the business was being operated as a tavern. On appeal this Court held the legislative delegation of authority to the ABC Board to control revocation of licenses within the terms of the Act was exclusive; and that even though the city can in liquor license applications prohibit initial state licensure, the city could not go beyond the grant of authority in the Act and establish criteria for retaining a license compliance which would effectively revoke the state license.

Ordinance 183 establishes a local .criterion for- licensure which effectively destroys state licensure. In that regard, the Ordinance violates the very provisions of the law by which it seeks to justify its action. Title 37, § 487, Code of Alabama 1940 (recomp. 1958), authorizes municipal prohibition ordinances which are not inconsistent with the laws of this state; however, I would hold that this Ordinance is in conflict with the superior law of the State, namely the ABC Act, and thus violates Title 37, § 487, which duly authorizes enactment only of ordinances which are not incompatible with the laws of this State. This Ordinance, which in all practicality denies licensure to new applicants within a *118wide, but vaguely defined area, even though previously licensed by the State ABC Board, is also in violation of § 89, Alabama Constitution of 1901, which states:

“The legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state.”

City ordinances, such as Ordinance 183, which are in conflict with State statutes and which seek to interfere with State licensure are void. Ott v. Moody, supra; Winter v. Cain, 279 Ala. 481, 187 So.2d 237 (1966); Lisenba v. Griffin, 242 Ala. 679, 8 So.2d 175 (1942); and Mitchell v. City of Birmingham, 222 Ala. 389, 133 So. 13 (1931).

As early as 1937, the Attorney General of this State held in an advisory opinion that municipal ordinances denying licenses to State Licensees were unconstitutional and void. Pertaining to the municipalities’ refusal to issue beer licenses where State licenses were already in effect, the Attorney General opined:

“. . . the city has the authority to levy a reasonable license for selling beer within the police jurisdiction of the city, but has no authority to prohibit the selling of beer by one legally licensed to do so by the State.”

Opinion of the Attorney General, Biennial Report, 1936-38, p. 248 (Opinion of May 29, 1947).

It is interesting that the majority opinion recognizes that the ABC Board Act clearly and purposely distinguishes between liquor licenses on the one hand and beer licenses on the other. Indeed, Mr. Justice Coleman observed in Paulson’s: “The conclusion appears to us inescapable that the legislature has placed beer licenses in one category and liquor licenses in another.” And, yet, here the majority opinion seeks to carve out some mystical middle ground whereby the cities may exercise some authority with respect to the issuance of beer licenses.

While “irrevisable discretion”, which exists as to liquor licenses, is not conferred on cities with respect to beer licenses, this does not, says the majority, “require or even suggest that municipalities have no authority whatever to regulate or control in any respect the issuance of a license to sell beer.” I suggest that the state of being “a little bit pregnant” is as susceptible to reality as is the notion that cities have a little bit of power to regulate beer licenses.

FAULKNER, J., concurs.