Can a Mississippi town require a business that only sells beer and light wine to also get an ABC liquor license?

Plain-English summary

The Town of Sardis had an ordinance saying that even if a business held a state Department of Revenue permit to sell beer or light wine for on-premise consumption, the business could not actually sell those drinks at its tables until it also obtained an ABC liquor license under Miss. Code Ann. § 67-1-7. Alderman Price asked whether that local layer was lawful.

The AG concluded it was not. Mississippi's Title 67, Chapter 3 (the beer-and-light-wine chapter) is administered by the Department of Revenue, and it covers manufacture, sale, distribution, possession, and transportation. Because the Legislature occupied that field, a town cannot pile a separate state liquor license on top of the state beer permit as a precondition to selling beer. The opinion also recognized municipal authority under § 67-3-65 to set zones and hours and adopt measures promoting public health, morals, and safety. Such an ordinance could address matters similar to those in the state beer-permit statute. A court would decide whether a particular ordinance is reasonable.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Mississippi handles beer and light wine separately from spirits. Beer and light wine are governed by Title 67, Chapter 3 of the Mississippi Code, with permitting administered by the Department of Revenue under § 67-3-25. The request described an ABC liquor license under § 67-1-7. The AG addressed whether Sardis could require that liquor license as a condition of selling beer and light wine.

Sardis required a business with a state beer and light-wine permit to obtain an ABC liquor license before selling those drinks for on-premise consumption. The AG addressed whether that specific extra requirement conflicted with state law.

The opinion says the Department of Revenue generally regulates the manufacture, sale, distribution, possession, and transportation of beer and light wine, subject to municipal authority under § 67-3-65. That section permits local rules on zones, hours, and other measures promoting public health, morals, and safety. The AG expressly said an ordinance could address matters similar to those in § 67-3-25, with its reasonableness left to a court. Sardis's requirement for an additional ABC liquor license conflicted with state law.

The opinion also reminds the reader of a structural point about AG opinions in Mississippi: under § 7-5-25, AG opinions are issued for the future guidance of officials entitled to receive them, and an AG opinion can neither validate nor invalidate past municipal action. So the opinion tells Sardis what is unlawful going forward; it does not unwind any prior denials or enforcement actions.

The opinion does not assess a revised Sardis ordinance. It says a court would determine whether a municipal ordinance adopted under § 67-3-65 is reasonable, citing the 2002 Kirk opinion.

Common questions

Q: Does this mean a town can never regulate beer sales at all?
A: No. The opinion specifically preserves municipal authority under § 67-3-65 to set zones and territories, hours of opening and closing, and other public-health/morals/safety rules. What the town cannot do is condition a state beer permit on an unrelated state liquor permit.

Q: Can a town regulate matters also addressed in the state beer-permit statute?
A: The opinion says an ordinance under § 67-3-65 could include matters similar to those in § 67-3-25. A court would decide whether the ordinance is reasonable. Sardis's specific demand for an additional ABC liquor license was preempted.

Q: Is selling liquor different from selling beer for this purpose?
A: Yes. Liquor is governed by Title 67, Chapter 1, and licensed by ABC under § 67-1-7. The question here was whether Sardis could demand the liquor license from a business selling beer and light wine despite its state permit and without selling liquor. The AG said it could not.

Q: The AG opinion mentions a 1998 Lee opinion and a 2002 Kirk opinion. Are those binding?
A: AG opinions in Mississippi are persuasive authority, not binding precedent. They guide officials entitled to receive them, but a court can disagree. The Lee and Kirk opinions are cited here as the AG's prior thinking on field preemption and on the fact-specific nature of ordinance challenges, respectively.

Q: Does this opinion undo Sardis's past enforcement of the ordinance?
A: No. The AG noted that under § 7-5-25 its opinions are issued for the future guidance of officials and "can neither validate nor invalidate past action of municipal governing authorities." The opinion tells Sardis that the extra-license requirement would be preempted going forward; it does not reach back to undo prior denials.

Citations

• Miss. Code Ann. § 67-1-7 (ABC on-premise consumption license for alcoholic beverages)
• Miss. Code Ann. § 67-3-1 et seq. (beer and light wine regulatory chapter)
• Miss. Code Ann. § 67-3-25 (Department of Revenue beer/light wine permit)
• Miss. Code Ann. § 67-3-65 (preserved municipal authority over zones, hours, and public-safety measures)
• Miss. Code Ann. § 7-5-25 (statutory grant of authority to the Mississippi AG to issue opinions)
• MS AG Op., Lee (October 23, 1998)
• MS AG Op., Kirk (November 8, 2002)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/M.Price_January-3-2020-Regulation-of-on-premise-consumption-of-beer-and-light-wine.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF MISSISSIPPI

JIM HOOD
ATTORNEY GENERAL

OPINIONS DIVISION

January 3, 2020

The Honorable Michael Price
Alderman at Large
Town of Sardis
Post Office Box 306
Sardis, Mississippi 38666

Re: Regulation of on-premise consumption of beer and light wine

Dear Alderman Price:

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

Background

You state that the Town of Sardis has an ordinance that provides that light wine and beer may not be sold for consumption on-premise despite a permit from the state Department of Revenue unless a permit is also obtained from the State ABC Commission for the sale of on-premise consumption of alcoholic beverages (liquor).

Issue Presented

You ask if the Town of Sardis may require a business to get an on-premise consumption ABC Liquor License from the ABC Commission under Section 67-1-7, despite not selling alcoholic beverages, in order to be able to sell beer and light wine for consumption at the same business? In other words, is the only state license required for a business to sell beer and light wine for consumption is one issued under Section 67-3-25? May a town require a license issued under Section 67-1-7 for the sale of beer and light wine in addition to the license issued under Section 67-3-25?

Response

Pursuant to Section 7-5-25 of the Mississippi Code, opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action of municipal governing authorities.

As a general rule, municipalities may not regulate activity that has been preempted by state law. With the exception of Section 67-3-65 of the Mississippi Code, the Department of Revenue regulates the manufacture, sale, distribution, possession and transportation of light wine and beer. See Miss. Code Ann. Sections 67-3-1, et seq.; MS AG Op., Lee (October 23, 1998).

The Legislature, in its passage of Section 67-3-65, expressly reserved some limited regulatory power in municipalities. Section 67-3-65, inter alia, authorizes municipalities to enforce such proper rules and regulations for fixing zones and territories, prescribing hours of opening and of closing, and for such other measures as will promote public health, morals, and safety, as may be needed in the premises by such ordinance. An ordinance could include matters similar to those addressed in Section 67-3-25. Whether any such ordinance is reasonable would be a determination for a court of competent jurisdiction. MS AG Op., Kirk (November 8, 2002).

A municipal ordinance requiring commercial establishments holding a valid permit issued by the State Tax Commission for the sale and on-premise consumption of beer and light wine to first obtain a license for on-premise consumption of liquor from the ABC, pursuant to Sections 67-3-1 et seq., would conflict with, and be preempted by, state statute.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter
Special Assistant Attorney General

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