Mississippi Advisory Opinions December 04, 1990: AGO 000010654 (December 4, 1990)

AGO 000010654.

Dear Ms. Davis:

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

Your letter states:

"I have enclosed a copy of the Order of the Mayor and Board of Aldermen of the City of Aberdeen certifying the results of the special local option election held on November 13, 1990, and declaring liquor to be legal in the City of Aberdeen. Since I spoke with you last week, we have been advised by T.K. Moffett, the attorney for 'C.A.L.L.' (the local anti-liquor group), that there will be some liquor ordinances submitted to our Mayor and Board of Aldermen for their consideration at their next regular meeting on December 4.

We have considered the issue of whether or not the City of Aberdeen is now required to adopt an ordinance, and have satisfied ourselves that the City has taken all of the action which is necessary or appropriate to effectuate the liquor election results by adoption of the November 20, 1990, order which is enclosed.

The statute which authorized the City of Aberdeen to hold the special municipal local option election is Miss. Code Ann. Section 67-1-14 (Supp. 1990). That statute specifically required us to 'pass the necessary order [emphasis added] permitting the legal sale of such alcoholic beverages...', since a majority of the voters voting in the special election voted for the legal sale of liquor in the City of Aberdeen.

The order adopted by our Mayor and Board of Aldermen declared the sale, possession, receipt, storage and transportation for the purpose of sale of alcoholic beverages to be legal, effective November 20, 1990, 'to the extent permitted by the Local Option Alcohol Beverage Control Laws of the State of Mississippi, specifically Miss. Code Ann. Section 67-1-1, et seq., as amended.'

We would appreciate your opinion, at your earliest convenience, on the following questions:

1. Is the City of Aberdeen required to adopt a formal ordinance regulating the sale and possession of liquor in the City, or did we automatically come under the Mississippi ABC laws when we adopted the November 20, 1990, order certifying election results declaring liquor to be legal to the extent permitted by state local option law?

2. To what extent can the City of Aberdeen legislate or restrict the time, place and manner of the sale, distribution and possession of liquor, beyond the perimeters of the state's local option laws?

We will need to advise the Mayor and Board as to what, if anything, regarding the legal sale and possession of liquor can be regulated by local ordinance. Since we know the matter will be brought up on December 4, we would appreciate hearing from you as soon as possible."

Subsequent to receiving your request we received from you a copy of a letter addressed to Jeffery M. Navarro, Esquire, dated November 26, 1990 from Gary W. Stringer, Senior Attorney with the State Tax Commission concerning this matter (Copy enclosed). We are in agreement with Mr. Stringer's conclusions.

In response to your specific questions, we find no statutory requirement that the municipal governing authorities adopt a formal ordinance regulating the sale and possession of liquor.

Also, generally the area of regulating the sale and/or possession of liquor has been preempted by State Law.

Therefore, any ordinance regulating such sale and/or possession could not in any way conflict with or expand the regulatory provisions of the existing statutes.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL Phil Carter Special Assistant Attorney General

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