Could Denham Springs update its restaurant liquor-permit ordinance without another election?

Plain-English summary

Denham Springs had adopted a restaurant liquor-permit ordinance after a 1994 local-option election. Its definition required 60% of average monthly revenue from food and nonalcoholic drinks, mirroring state law at the time. The legislature later removed that percentage from R.S. 26:73. In 2005, the Attorney General said the city could amend its ordinance to match current state law without another election.

The city proposed replacing the 60% test with a 50% test. The AG warned that even this lower percentage might exceed the state statute, which then required a business primarily to take food orders and serve food, serve alcohol with meals, and meet other listed conditions but imposed no sales percentage. The opinion said a local restaurant permit could not have requirements more demanding than the state permit. It deferred further interpretation of R.S. 26:73 to the Office of Alcohol and Tobacco Control.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the city need another local-option election to adopt the current state definition?

No. The AG said it could amend the ordinance to conform to R.S. 26:73 without sending that change back to voters.

Did the AG approve a new 50% food-sales test?

No. It said such a test might exceed state permit requirements because the amended state law had no percentage-of-sales condition.

What happened to the ordinance’s original 60% rule?

The AG said it appeared invalidated by the later state amendment that repealed the statutory percentage on which the local rule had been based.

Background and statutory framework

The 1994 ordinance mirrored a then-existing 60% condition in R.S. 26:73(B)(4). Act 1081 of 1995 repealed that subsection. The AG read R.S. 26:73(A)(2) to bar local restaurant-permit requirements and fees exceeding the state standard, and relied on the rule that a local-option ordinance only operates insofar as it conforms to state law.

Citations

• R.S. 26:73 (restaurant permit framework).
• R.S. 26:73(A)(2) (limit on local permit requirements).
• R.S. 26:73(B)(4) (former percentage provision identified as repealed).
• State vs. Sissons, 292 So.2d 523 (La. 1974) (local-option ordinance conformity).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0392

Original opinion text

December 8, 2005
OPINION 05-0392

55-B Intoxicating Liquors – Permits, Licenses & Fees
Mr. Boyd A. Bryan
R.S. 26:73
City Attorney
State law contemplates that a restaurant liquor permit shall
be issued to a restaurant establishment which operates a
City of Denham Springs
place of business whose purpose and primary function is to
8555 United Plaza Boulevard take orders for and serve food and food items and which
Baton Rouge, LA 70809-7000
serves alcoholic beverages in conjunction with meals.

Dear Mr. Bryan:

As the City Attorney for the City of Denham Springs, you ask the following question:

Can the City Council and the Mayor of the City, without holding a new referendum election, amend the definition of “restaurant establishment” contained in its current local option ordinance?

Section 10-94 of the Code of Ordinances of the City of Denham Springs currently provides:

Requirements for issuance of permits.

A restaurant establishment shall be defined as an establishment:

(1) Which operates place of business whose purpose and primary function is to take orders for and serve food items;
(2) Which serves alcoholic beverages in conjunction with meals
(3) Which serves food on all days of operation;
(4) Which grosses 60 percent of its average monthly revenue from the sale of food, food items, and non-alcoholic beverages;
(5) Which maintains separate sales figures for alcoholic beverages; and
(6) Which operates a fully equipped kitchen which includes but is not limited to a range, an oven, and refrigerated storage appliances used for the preparation of uncooked foods for service and consumption of such foods on the premises.”

Section 10-94 was adopted pursuant to a local option election held in October of 1994 in compliance with the provisions of R.S. 26:73 then in effect. R.S. 26:73(B)(4) then included in its definition of “restaurant establishment” an establishment which “grosses

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Mr. Boyd A. Bryan
OPINION 05-0392
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sixty percent of its average monthly revenue from the sale of food, food items, and non- alcoholic beverages”.

R.S. 26:73(B)(4) was repealed by Act 1081 of the 1995 Regular Legislative Session. R.S. 26:73(B) now defines “restaurant establishment” as follows:

B. (1) For purposes of this Section, "restaurant establishment" shall be defined as an establishment:

(a) Which operates a place of business whose purpose and primary function is to take orders for and serve food and food items.
(b) Which serves alcoholic beverages in conjunction with meals.
(c) Which serves food on all days of operation.
(d) Which maintains separate sales figures for alcoholic beverages.
(e) Which operates a fully equipped kitchen used for the preparation of uncooked foods for service and consumption of such foods on the premises.

Because R.S. 26:73(B)(4) has been repealed, the council now proposes to amend Section 10-94 to require a “restaurant establishment” to gross 50 percent of its average monthly revenue from the sale of food, food items, and non-alcoholic beverages.

We direct your attention to R.S. 26:73(A)(2) which pertinently provides:

Municipal and parish governing authorities may issue “R” permits similar to those provided for in this Section; however, the requirements and fees for such permits shall not exceed that required by this Section.
(Emphasis added).

The language of R.S. 26:73 currently imposes no “percentage of sales” requirement vis- à-vis the definition of “restaurant establishment”. Rather, the statute requires the business to have as its “purpose and primary function…to take orders for and serve food and food items”. An amendment to the ordinance imposing a “fifty percent” rule may in fact exceed the requirements of R.S. 26:73, in contradiction to R.S. 26:73(A)(2) quoted above.

Further, it appears that the “sixty percent rule” presently set forth in Section 10-94 is invalidated by the subsequent amendment to R.S. 26:73. An ordinance adopted pursuant to local option election only has effect to the extent that it conforms to state law. See State vs. Sissons, 292 So.2d 523 (La. 1974). It is the opinion of this office that the ordinance may be amended to adopt the current language of R.S. 26:73 without resubmission to the electorate so that the ordinance is in compliance with state law.

Further, note that the doctrine of contemporaneous construction may be applied to clarify the meaning of R.S. 26:73. Under this doctrine, when an administrative body

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Mr. Boyd A. Bryan
OPINION 05-0392
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has, over a long period of time, placed an interpretation upon a legislative enactment, that interpretation is given substantial and often decisive weight in the legislation’s interpretation. See State v. BP Exploration & Oil, Inc., 686 S02d 823 (LA 1997), Board of Trustees of State Employees Group Benefits Program v. St. Landry Parish Bd. 844 So.2d (LA. App. 1st Cir. 2003); Ouachita Parish School Board v. Ouachita Parish Supervisors Association, 362 So.2d 1138 (LA 1978); Washington v. St. Charles Parish School Board, 288 So.2d 321 (LA 1974).

The Office of Alcohol and Tobacco Control is the regulatory agency authorized to enforce state law regarding the issuance of alcoholic beverage permits. We defer to that agency regarding further interpretation of R.S. 26:73.

We hope the foregoing is helpful to you. Should you have other questions, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: _______ KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL

KLK:ams

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OPINION 05-0392
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OPINION 05-0392

55-B Intoxicating Liquors – Permits, Licenses & Fees

R.S. 26:73

State law contemplates that a restaurant liquor permit shall be issued to a restaurant establishment which operates a place of business whose purpose and primary function is to take orders for and serve food and food items and which serves alcoholic beverages in conjunction with meals.

Mr. Boyd A. Bryan
City Attorney
City of Denham Springs
8555 United Plaza Boulevard
Baton Rouge, LA 70809-7000

Date Received:
Date Released: December 8, 2005

KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL