Alabama Advisory Opinions April 03, 2007: AGO 2007-066 (April 3, 2007)

AGO 2007-066.

Dear Representative Lindsey:

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

Can the Alabama Alcoholic Beverage Control Board issue a license in Cleburne County to manufacture and sell wine with an alcoholic content of 14.9 percent by volume under the authority of the Table Wine Act?

Chapter 2 of title 28 of the Code of Alabama is entitled "Elections as to Sale and Distribution of Alcoholic Beverages Within Counties." This chapter provides for a procedure to determine whether a county is a dry county or a wet county and, also, a procedure to provide a series of special rules governing the sale of alcoholic beverages in wet counties, in addition to those provided in the general law (s ee the title for the Special Method Referendum Act of 1971 [1971 Ala. Acts No. 1266, 2195]).

Cleburne County became wet under the provisions of the Special Method Referendum Act of 1971. Therefore, the special rules of that act apply to Cleburne County. As to the sale of alcoholic beverages in that county, the act, as found in the Code of Alabama, provides as follows:

(3) Only nonrefrigerated malt beverages may be sold in any area in the county.

(4) Spirituous or vinous liquors may only be sold at stores operated by the Alabama Alcoholic Beverage Control Board.

. . . .

(6) The consumption of alcoholic beverages on the premises where sold or in any public place is prohibited.

Your letter poses the question whether the Alabama Table Wine Act (Act 80-382, which has been codified as section 28-7-1, et seq ., of the Code of Alabama) is in conflict with and repeals all or part of the Special Method Referendum Act. In 1980, the Legislature, through the Alabama Table Wine Act, created a new category for wine by distinguishing wine having not more than 14 percent (later raised, by amendment, to 14.9 percent) alcohol by volume to be known as table wine from fortified wine or vinous liquors having a greater percentage of alcohol. The act defines and authorizes licenses to be issued for the sale of table wine and addresses the privileges, practices, and responsibilities that go with those licenses. As you point out, the Table Wine Act allows for on-premises consumption of table wine. The act contains a general "repealer clause" that repeals all laws or parts of laws that conflict or are inconsistent with the act.

At a subsequent point during that same 1980 legislative session, the Alcoholic Beverage Licensing Code (section 28-3A-1, et seq ., of the Code of Alabama) was enacted. That act defines and authorizes all licenses to be issued for the manufacture and sale of all alcoholic beverages and addresses the privileges, practices, and responsibilities that go with those licenses. Among other things, those licenses provide for on-premises consumption of all types of alcoholic beverages in many types of establishments - restaurants, lounges, etc. This act also contains a general repealer clause (1980 Ala. Acts No. 80-529, 829, sect. 27). If the Alabama Table Wine Act repeals provisions of the Special Method Referendum Act as to table wine, then it may be argued that the Alcoholic Beverage Licensing Code repeals the provisions of the Special Method Referendum Act as to all alcoholic beverages.

It is a "cardinal rule" of statutory construction that repeals by implication are not favored. Radzanower v. Touche Ross and Co , 426 U.S. 148, 155, 96 S. Ct. 1989, 1993, 48 L. Ed. 2d 540 (1976); Morton v. Mancari , 417 U.S. 535, 549, 94 S. Ct. 2474, 2482, 41 L.Ed.2d 290 (1974) [other citations omitted]. In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Morton , 417 U.S. at 550, 94 S. Ct. at 2482 (citation omitted). Courts are not at liberty to pick and choose among legislative enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed legislative intent to the contrary, to regard each as effective. Id at 551, 94 S. Ct. at 2483.

. . . .

.. . . Under Alabama law, a general repealer clause in a new statute is insufficient to repeal existing legislation. See Merrell v. City of Huntsville, 460 So.2d 1248, 1250-51 (Ala. 1984) (citation omitted). A general repealer clause typically states that "all laws or parts of laws which conflict or are inconsistent with this Code are hereby repealed." See id. at 1250. . . .

Hayden v. Blue Cross and Blue Shield of Ala. , 843 F. Supp. 1427, 1436-37 (M.D. Ala. 1994).

Chapter 2 of title 28 provides for the classification of a county, determined by its voting citizens, as dry, wet, or wet with special rules. The Alabama Table Wine Act and the Alcoholic Beverage Licensing Code define and authorize licenses that can be issued by the Alcoholic Beverage Control Board, under its regulatory authority, for the sale of alcoholic beverages if the classification of the county authorizes such sales. The Special Method Referendum Act of 1971 and the Alabama Table Wine Act do not conflict. The fact that the licenses exist does not mean that it is proper to issue them in every instance. The Legislature simply could have repealed the Special Method Referendum Act of 1971 if it had wished to do so. There is no affirmative evidence that it intended such a repeal.

The Alabama Table Wine Act does not repeal provisions of the Special Method Referendum Act of 1971, which applies to Cleburne County. Therefore, the Alabama Alcoholic Beverage Control Board cannot issue a license for the manufacture and sale of table wine in Cleburne County.

Your second question was predicated upon an affirmative answer to the first. Therefore, it is unnecessary to address the second question.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Bob Hill, Legal Division, Alcoholic Beverage Control Board.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/RSHiii

221751/103335