After North Carolina rewrote its alcoholic beverage laws in 1981, could the ABC Commission issue on-premises wine permits to Gastonia restaurants and hotels even though Gastonia voters had previously voted for ABC stores only (no on-premises wine)?

Plain-English summary

The ABC Commission asked whether it could issue on-premises fortified or unfortified wine permits to qualified Gastonia restaurants and hotels. It also asked whether North Carolina's 1981 rewrite of the alcoholic beverage laws changed the effect of earlier local acts and elections in other jurisdictions that had approved ABC stores but restricted wine sales. The Attorney General answered yes to both questions.

The opinion quotes G.S. 18B-603(c)(2): where ABC stores are approved, the Commission may issue on-premises and off-premises fortified and unfortified wine permits to qualified persons and establishments “regardless of any unfortified wine election or any local act.” Gastonia could therefore receive those permits. The same rule applied to other jurisdictions within the question's terms.

Earlier elections were not erased. Section 10 of the 1981 Act says sales approved in earlier elections “remain valid under the terms of those elections except as G.S. 18B-603 allows the issuance of permits that were not authorized under the comparable provisions of Chapter 18A.” The opinion says the consequences of earlier elections must be read under the new Chapter 18B. It identifies several earlier AG opinions and letters about wine sales that should no longer be treated as authoritative.

The Attorney General called the result an “apparent anomaly.” A voter could favor state ABC stores while opposing private wine sales, yet the new law allowed wine permits in jurisdictions that had approved stores “without regard to the wishes of the voters.” The opinion invites the General Assembly's attention to that result. It does not state that lawmakers intended to simplify the law, increase uniformity, or treat an ABC-store vote as an endorsement of private wine sales.

Currency note

This opinion interprets the 1981 rewrite effective in 1982. Check the current text of Chapter 18B and current ABC Commission rules for a present permit question.

Background and statutory framework

Chapter 412 of the 1981 Session Laws repealed Chapter 18A and enacted Chapter 18B. The opinion says the principal provisions of Chapter 18B took effect January 1, 1982. It explains that Section 9 repealed local acts conflicting with Article 6, subject to the exceptions it names in G.S. 18B-604(b) and (c) and G.S. 18B-605. It also says local acts that did not conflict with the enumerated new provisions continued in effect.

Section 10 preserved sales approved in earlier elections, with an exception for additional permits allowed by G.S. 18B-603. That statute links wine-permit eligibility to approval of ABC stores. The opinion applies the provision's express “regardless of any unfortified wine election or any local act” language to Gastonia and other jurisdictions described in the Commission's question.

Common questions

Could qualified Gastonia restaurants and hotels get on-premises wine permits under the 1981 law?

Yes. The opinion concludes that the Commission may issue on-premises and off-premises fortified and unfortified wine permits to qualified persons and establishments in Gastonia.

Did earlier local wine votes remain valid?

The opinion quotes Section 10 saying sales approved by earlier elections remain valid, but G.S. 18B-603 may allow permits that the former Chapter 18A did not. It says the consequences of earlier elections are determined under Chapter 18B after its effective date.

Did the opinion apply beyond Gastonia?

Yes. The second question concerned other counties and municipalities that had approved ABC stores but had earlier restricted on-premises wine sales. The opinion answered that question yes as well.

Did the opinion say voters had approved private wine sales by voting for ABC stores?

No. It expressly says a voter could logically favor state store sales and oppose private sales. The Attorney General described the new permit result as an “apparent anomaly” and invited the General Assembly's attention to it.

Source

• Landing page: https://ncdoj.gov/opinions/abc-acts-elections-sale-of-wine/

Citations

• N.C. Gen. Stat. § 18B-600
• N.C. Gen. Stat. § 18B-603
• N.C. Gen. Stat. § 18B-603(c)(2)
• N.C. Gen. Stat. § 18B-604(b), (c)
• N.C. Gen. Stat. § 18B-605
• 1981 Sess. Laws ch. 412
• Gardner v. Reidsville, 269 N.C. 581, 153 S.E.2d 139 (1967)
• Smith v. Mecklenburg County, 280 N.C. 497, 187 S.E.2d 67 (1972)
• Nelson v. Board of Alcoholic Control, 26 N.C. App. 303, 216 S.E.2d 152 (1975)

Original opinion text

Requested By:

Ann S. Fulton
Chief Hearing Officer
Alcoholic Beverage Control Commission

Questions:

(1) Does the ABC Commission have the authority to issue on-premise fortified and/or unfortified wine permits to qualified restaurants and hotels in the City of Gastonia?

(2) Do the provisions of G.S. 18B-603(c)(2), and Sections 9 and 10 of Chapter 412 have the effect of superseding all previous local acts and elections in other counties and municipalities which have approved the establishment of ABC stores, but have previously either voted to allow only off-premises sales of "unfortified wines" or "wines," or voted against on-premise sales of "unfortified wines" or "wines?"

Conclusions:

(1) The Commission may issue on-premises and off-premises fortified wine and unfortified wine permits to qualified persons and establishments in the City of Gastonia.

(2) Yes.

The 1981 Session of the North Carolina General Assembly enacted as Chapter 412 of its Session Laws "An Act to Rewrite the Alcoholic Beverage Control Laws." By § 1 of that Act Chapter 18A of the General Statutes was repealed; § 2 enacted a new Chapter 18B to regulate intoxicating liquors. The principal provisions of Chapter 18B became effective January 1, 1982, Session Laws 1981 Chapter 412, § 11. Like Chapter 872, 1971 Session Laws, which repealed old Chapter 18 and enacted Chapter 18A, Chapter 412 generally repealed the former liquor control laws. Former Chapter 18A of the General Statutes contained a section, G.S. 18A-57 which preserved in effect local acts and the results of local option elections. Chapter 412 of the 1981 Session Laws by §§ 7, 8 and 9 repeals all local, public-local and private acts in conflict with certain enumerated sections of new Chapter 18B. Local acts not in conflict with those provisions would, of course, continue in effect.

Section 9 of Chapter 412 repeals "all local, public-local, and private acts in conflict with Article 6 of Chapter 18B . . . except as provided in G.S. 18B-604(b) and (c) and in G.S. 18B-605." G.S. 18B-605 provides:

"§ 18B-605. Local act elections. — If a jurisdiction has voted in favor of ABC stores or in favor of the sale of some kind of alcoholic beverage, pursuant to a local act enacted before the effective date of this Chapter, and the jurisdiction would not be eligible to hold another election under the conditions set by G.S. 18B-600, then that jurisdiction may hold subsequent elections under the terms of the applicable local act. Except for the authority to hold the election, however, the procedures of this Chapter shall apply to any subsequent election."

Section 10 of Chapter 412, 1981 Session Laws provides, in part:

"All sales of alcoholic beverages which were approved in elections held before the effective date of this act remain valid under the terms of those elections except as G.S. 18B-603 allows the issuance of permits that were not authorized under the comparable provisions of Chapter 18A."

Thus, the clear intent of the General Assembly is that no new elections need be held to authorize the establishment of ABC stores or the sales of alcoholic beverages. The consequences of those elections, however, are to be determined by reference to new Chapter 18B, as of its effective date, regardless of when the election was held.

The effect of various alcoholic beverage control elections on the issuance of permits is described in G.S. 18B-603. G.S. 18B-603(c)(2) provides that where the establishment of ABC stores is approved:

"(2) The commission may issue on-premises and off-premises fortified wine and unfortified wine permits to qualified persons and establishments in that jurisdiction, regardless of any unfortified wine election or any local act." (Emphasis added.)

In view of the foregoing, the following formal opinions of this Office are no longer to be regarded as authoritative: 41 N.C.A.G. 100 (8 October 1970) regarding the sale of sweet wines in Monroe; 41 N.C.A.G. 630 (23 November 1971) restrictions on the sale of wine in the City of Gastonia; and 42 N.C.A.G. 4 (7 July 1972) regarding the sale of sweet wines in Monroe. The following letter opinions of the undersigned should no longer be regarded as authoritative: letter to Ann S. Fulton dated July 26, 1979, regarding sale of fortified and unfortified wines in the City of Brevard; letter of November 26, 1979, to T. D. Zwiegart, regarding sales of wine in the City of Lenoir; letter of March 4, 1980 to Ann S. Fulton, regarding sale of wine in Scotland County; letter of December 11, 1980 to Derek O. Godwin, regarding the sale of wine in the City of Shelby; letter of December 10, 1981 to O. Richard Wright, Jr., regarding wine sales in Tabor City.

The attention of the General Assembly is invited to the apparent anomaly it has created. The ABC laws give counties and qualified cities the option to vote on any of four malt beverage marketing plans, any of three unfortified wine marketing plans, ABC stores and mixed beverages. Voters have no option to vote on fortified wine sales. The courts have, in the past, drawn a sharp distinction between the sale of intoxicants by the State through its control stores, Gardner v. Reidsville, 269 N.C. 581, 153 S.E.2d 139 (1967), and sales of intoxicants by private persons, see, e.g., Smith v. Mecklenburg County, 280 N.C. 497, 187 S.E.2d 67 (1972); Nelson v. Board of Alcoholic Control, 26 N.C. App. 303, 216 S.E.2d 152 (1975). The voter could, of course, quite logically favor sales by the State through control stores and oppose private sales. Nevertheless, as part of having voted for control stores the locality now acquires on- and off-premise wines sales, without regard to the wishes of the voters.

Rufus L. Edmisten
Attorney General

David S. Crump
Special Deputy Attorney General
Special Assistant to the Attorney General