Alabama Advisory Opinions April 01, 2011: AGO 2011-4 (2011-004)

AGO 2011-4.

Dear Judge Salter:

This opinion of the Attorney General is issued in response to your request.

Does section 28-2-23 of the Code of Alabama apply to dry counties that have wet municipalities?

Chapter 2 of title 28 concerns elections as to the sale and distribution of alcoholic beverages within counties. Article 1 of that chapter addresses an election to determine whether a county will be wet or dry. Article 2 of that chapter, which contains sections 28-2-20 through 28-2-25, addresses an election to determine whether a county will be wet under the unique rules of the Special Method Referendum Act.

Your question is specifically about section 28-2-23 of the Code, which is contained in article 2 of chapter 2. That statute begins as follows: "Any county or municipality which allows the sale of malt beverages under the provisions of this article shall be authorized to levy and collect a tax on the sale of such beverages... ." ALA. Code § 28-2-23 (2003) (emphasis added). Section 28-221 of that article provides that the question voted upon by the voters of a county, under that article, is as follows: '"Do you favor the legal sale and distribution of alcoholic beverages within the county under the Special Method Referendum Act of 1971? Yes____No____."' ala. code § 28-2-21 (2003) (emphasis added.) Thus, section 28-2-23 can only apply to a county that has gone wet under the Special Method Referendum Act. That section authorizes such wet counties, and the municipalities therein, to levy and collect a certain tax. Therefore, that section cannot apply to dry counties or to municipalities in dry counties.

Section 28-2-23 of the Code of Alabama does not apply to dry counties \ that have wet municipalities.

Because your other questions were based on the premise of an affirmative answer to the first question, it is not necessary to address those other questions.

I hope this opinion answers your question. If this Office can be of further assistance, please contact me.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/RSH

1025429/145188