Dear Mr. Russell:
You ask this office if a charitable gaming facility located and operating in the City of Baker may legally be licensed to sell alcoholic beverages for consumption on the premises. As explained below, we advise that such sales are prohibited in the City of Baker.
I. State law permits charitable gaming facilities to apply foralcoholic beverage permits.
La.R.S. 26:80(A)(3) provides for the qualifications of applicants for alcohol permits, while La.R.S. 26:280(A)(3) provides for the qualifications of applicants for permits for dealers in beverages of low alcoholic content. Act 844 of the 2008 Louisiana Regular Legislative Session amended both statutes to permit the owner and commercial lessor of charitable gaming facilities to apply for alcoholic beverage permits.1II. The City of Baker Alcoholic Beverage Ordinance.
In January of 1997 a local option election was held in the City of Baker. The official results of that election were adopted by the Baker City Council in Ordinance #1997-12, which provides in pertinent part:"1. Shall the sale of beverages of alcoholic content containing not more than six percent alcohol by volume be permitted by package only and not *Page 2 for consumption on the premises in the City of Baker, Louisiana. Official result of election is "YES".
"2. Shall the sale of beverages of alcoholic content containing not more than six percent alcohol by volume for consumption on the premises be permitted in the City of Baker, Louisiana. Official result of election is "NO".
"3. Shall the sale of beverage alcohol containing one-half of one percent alcohol by volume and above for consumption on the premises be permitted in the City of Baker, Louisiana. Official result of election is "NO".
"4. Shall the sale of beverages of alcoholic content containing one-half of one percent alcohol by volume and above by the package only and not for consumption on the premises be permitted in the City of Baker, Louisiana. Official result of election is "YES".
"5. Shall the sale of beverages of high and low alcoholic content be permitted only on the premises of restaurant establishments which have been issued an "R" permit as defined by law in the City of Baker, Louisiana. Official result of election is "YES".
The local option results as adopted in Ordinance #1997-12 reflect that package sales of beverages of both high and low alcoholic content are permitted in the City of Baker for consumption off the premises (propositions 1 and 4); the sale of beverages of both high and low alcoholic content is permitted on the premises of a restaurant (proposition 5); and the sale of beverages of both high and low alcoholic content for consumption on all other premises is prohibited (propositions 2 and 3).
Ordinance #1997-12 prohibits the sale of beverages of both high and low alcoholic content for consumption "on all other premises". Charitable gaming facilities fall within the phrase "other premises" and are subject to this prohibition.
III. The denial of an alcoholic beverage permit is mandatory if suchsales are prohibited by referendum vote.
State law prohibits the issuance of a state or local permit to sell alcoholic beverages where the electorate has prohibited such sales pursuant to a local option election. La.R.S. 26:81 (B)(1) states:B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.
La.R.S. 26:281(B) contains similar language and provides: *Page 3
B. No permit shall be issued by the commissioner or local authorities to authorize the conduct of business in any subdivision of the state wherein that business has been prohibited by referendum vote.
Another local option election may be called to again address the issue, pursuant to La.R.S. 26:582, which provides:
582. Petition for election; separate elections; frequency limited
A. (1) Upon petition of not less than twenty-five percent of the qualified electors residing in any ward, election district, or any incorporated municipality, the governing authority shall order a referendum election to be held to determine whether or not the business of selling alcoholic beverages shall be conducted and licensed therein.
(2) A copy of the petition shall be submitted to the registrar on the date the first signature is affixed on the petition for the purpose of determining the total number of qualified voters residing in each ward, election district, or each incorporated municipality in which such petition will be circulated.
B. In the case of such an election held on a ward, election district, or municipal basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward or election district.
C. No such election shall be held for the same subdivision more often than once in every two years.
While charitable gaming facilities operating in the City of Baker may apply for a permit to sell alcoholic beverages for consumption on the premises, these facilities remain subject to the results of the 1997 local option election as adopted by Ordinance #1997-12. Because Ordinance #1997-12 prohibits the sale of alcoholic beverages for consumption on the premises in the City of Baker (other than a restaurant), both the state commissioner and local authorities are required by state law to deny such an application.
Very truly yours,
JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL
BY:__________________________ KERRY L KILPATRICK ASSISTANT ATTORNEY GENERAL
KLK:arg
1 The language of La.R.S. 26:80(A)(3) and La.R.S. 26:280(A)(3) is identical as follows:
(3) Be the owner of the premises, have a bona fide written lease therefor, or be a commercial lessor or a noncommercial lessor licensed pursuant to R.S. 4:701 et seq., exclusively for and for the sole purpose of conducting charitable gaming. . .