Mississippi Advisory Opinions September 08, 1982: 19820908 (September 08, 1982)

Advisory Opinion Text

Honorable Michael D. Ferris

City Attorney

Post Office Box 343

Macon, Mississippi 39341

Dear Mr. Ferris:

Attorney General Allain has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“I am writing this letter to request your opinion with respect to the following question:

“'If the citizens of Noxubee County determine by election that the sale of alcoholic beverages will be permitted in said County, does Section 67-3-9 of the Mississippi Code of 1972, Annotated, prohibit the City of Macon from adopting an ordinance which would restrict the manner in which said alcoholic beverages would be sold?”'

Chapter 1, Title 67, Mississippi Code Annotated (1972) is entitled “Local Option Alcoholic Beverage Control”. Section 67-1-5(a) provides as follows:

“The words 'alcoholic beverage' mean any alcoholic liquid, including wines of more than four percent (4%) of alcohol by weight, capable of being consumed as a beverage by a human being, but shall not include wine containing four percent (4%) or less of alcohol by weight and shall not include beer containing not more than four percent (4%) of alcohol by weight, as provided for in section 67-3-5, but shall include native wines. . . .”

Section 67-1-37 enumerates the powers and duties of the Alcoholic Beverage Control Division of the State Tax Commission. Among the powers granted by said section is the authority “to designate hours and days when alcoholic beverages may be sold in different localities in the state which permit such sale.”

Therefore, the manner of sale of alcoholic beverages as defined above is governed by the Alcoholic Beverage Control Division of the State Tax Commission.

Chapter 3, Title 67, Mississippi Code Annotated (1972) governs the sale of light wines and beer.

Section 67-3-5 provides as follows:

“It shall be lawful, subject to the provisions set forth in this chapter, in this state to transport, store, sell, distribute, possess, receive, and / or manufacture wine and beer of an alcoholic content of not more than four per centum by weight, and it is hereby declared that it is the legislative intent that this chapter privileges the lawful sale and manufacture, within this state, of such light wines and beer.”

Section 67-3-9 referred to in your letter authorizes local option elections concerning the sale of beer in “any city in this state having a population of not less than two thousand, five hundred (2, 500) according to the latest federal census . . . .”

Page 17 of the 1980 Federal Census for the State of Mississippi lists the population of the City of Macon as 2, 396 (copy enclosed). Therefore, Section 67-3-9 does not apply to the City of Macon at this time.

However, we enclose a copy of Section 67-3-65 which enumerates the powers of local governments to regulate the sale of light wines and beer.

In summary, that statute authorizes municipalities to regulate the sale of light wines and beer by enacting by ordinance such proper rules and regulations for fixing zones and territories, prescribing hours of opening and closing, and for such other measures as will promote public health, morals and safety. It further states that nothing in said Chapter 3 shall prohibit the governing body of any municipality from designating territory surrounding churches and schools in which light wines and beer shall not be sold or consumed

Very truly yours,

Bill Allain Attorney General.