Can a North Carolina city prohibit consumption of malt beverages and unfortified wine on state highways that pass through its corporate limits?

Plain-English summary

The City of Eden had adopted or was about to adopt an ordinance making it unlawful to consume malt beverages and unfortified wine on the rights-of-way of the city's public streets. The City Attorney asked the AG whether the ordinance could be extended to include state highways that ran through Eden's corporate limits.

The AG said no. Two distinct legal barriers blocked the extension.

The ownership/jurisdiction question. N.C.G.S. § 18B-300(c) gave cities and counties authority to regulate consumption of malt beverages and unfortified wine by ordinance, but only on property "owned or occupied by that city or county." State highways are not city property. The Department of Transportation, under N.C.G.S. § 136-45, is responsible at state expense for repair, construction, reconstruction, and maintenance of state highways. N.C.G.S. § 136-66.1 confirms that responsibility continues even when the highway runs through municipal corporate limits. So state highways through Eden were not "property owned or occupied by" the city, and § 18B-300(c) did not authorize an ordinance reaching them.

The preemption question. Even if the ownership angle were unclear, Chapter 18B contained an express preemption clause. N.C.G.S. § 18B-100 prohibited local ordinances that established "different rules on the manufacture, sale, purchase, transportation, possession, consumption, or other use of alcoholic beverages or requiring additional permits or fees," except as the chapter itself authorized. § 18B-300(a) said that for adults 21 and older, purchase, consumption, and possession of malt beverages and unfortified wine "for their own use is permitted without restriction." The Eden ordinance, by criminalizing what state law permitted, would impose a restriction Chapter 18B did not authorize. That ran into § 18B-100's preemption clause.

General preemption case law. State v. Williams, 283 N.C. 550 (1973), settled the rule that general state laws prevail over local ordinances. Davis v. City of Charlotte, 242 N.C. 670 (1955), held that an ordinance making criminal or illegal any conduct that is legalized and sanctioned by the General Assembly is invalid. The Eden ordinance, applied to state highways, would do exactly that.

The AG also drew the careful comparison the statute itself made: under § 18B-301(f)(1), mixed beverages, spirituous liquor, and fortified wine could not be consumed on any public road, street, highway, or sidewalk, period. The legislature had specifically chosen not to extend that rule to malt beverages and unfortified wine. Local governments could not fill that gap on their own.

A city's general police-power authority under N.C.G.S. § 160A-174 (to enact ordinances protecting public health, safety, and welfare) did not override the specific preemption framework in Chapter 18B.

Currency note

This opinion was issued in 1994. 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.

Chapter 18B and the underlying state-highway statutes have been amended in places since 1994. The basic preemption framework (state law preempts local restrictions on consumption of malt beverages and unfortified wine, except where Chapter 18B authorizes) is still the rule, but anyone designing or challenging a current local alcohol ordinance should pull the current statutes.

Common questions

Q: Could Eden prohibit consumption on its own city streets?
A: The AG did not address that directly, but § 18B-300(c)'s "owned or occupied by that city" language permits municipal ordinances on city-owned streets. The problem was extending the ordinance to state highways the city did not own.

Q: What if Eden police saw someone drinking on a state highway through Eden?
A: They could enforce general criminal laws (open container in a vehicle, public drunkenness, drunk driving) and state alcohol laws. They could not arrest the person for violating Eden's consumption ordinance because the ordinance did not legally reach state highway property.

Q: Why is mixed-beverage / liquor / fortified wine consumption banned on highways but not beer?
A: That was a state legislative choice in § 18B-301(f)(1), not a constitutional rule. The General Assembly distinguished the categories deliberately. The AG noted that distinction as part of why local ordinances could not fill the gap; the legislature had been explicit about where the line ran.

Q: Is § 18B-100 a complete preemption of all local alcohol ordinances?
A: No. § 18B-100 preempts local ordinances "except as provided in this Chapter." Chapter 18B contains express authorizations for some local action (referendum ABC store, county-level dry options under earlier ABC framework, etc.). The Eden ordinance fell outside those express carve-outs.

Background and statutory framework

The opinion turned on three statutory clusters working together:

• Chapter 18B (alcoholic beverage control). § 18B-100 contained the express preemption clause. § 18B-300(a) created the affirmative right of adults 21+ to consume malt beverages and unfortified wine without restriction except as Chapter 18B otherwise provided. § 18B-300(c) gave cities and counties a narrow authority to regulate consumption on property owned or occupied by them. § 18B-301(f)(1) banned consumption of mixed beverages, spirituous liquor, and fortified wine on public roads, streets, highways, or sidewalks, but specifically did not cover malt beverages or unfortified wine.
• Chapter 136 (state highways). § 136-45 made the state responsible at its own expense for repair, construction, reconstruction, and maintenance of state highways. § 136-66.1 carried that responsibility into highways within corporate limits. Together they confirmed state ownership/jurisdiction over the highway corridors through cities.
• Chapter 160A (municipal authority). § 160A-174 granted cities general police-power authority for ordinances on health, safety, welfare, peace, and dignity. The AG read that as a default authority that yields when state law has specifically preempted.

The case-law backstop was State v. Williams (1973) for the basic rule (general state law prevails over local ordinance) and Davis v. City of Charlotte (1955) for the corollary (an ordinance that criminalizes state-law-sanctioned conduct is invalid). With both rules pulling the same direction and § 18B-100 expressly preempting, the AG had a clean preemption result.

The opinion was issued under William N. Farrell, Jr. (Senior Deputy Attorney General) and Isaac T. Avery, III (Special Deputy Attorney General).

Citations

• N.C.G.S. § 18B-100 (express preemption clause for Chapter 18B)
• N.C.G.S. § 18B-300(a) (consumption by adults 21+ permitted without restriction)
• N.C.G.S. § 18B-300(c) (cities and counties may regulate consumption on city/county property)
• N.C.G.S. § 18B-301(f)(1) (no consumption of mixed beverages, spirituous liquor, fortified wine on public roads/highways)
• N.C.G.S. § 136-45 (state responsibility for state highways at state expense)
• N.C.G.S. § 136-66.1 (state responsibility continues within corporate limits)
• N.C.G.S. § 160A-174 (general municipal police-power authority)
• State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973) (general state law prevails over local ordinance)
• Davis v. City of Charlotte, 242 N.C. 670, 89 S.E.2d 406 (1955) (ordinance criminalizing state-sanctioned conduct is invalid)

Source

• Landing page: https://ncdoj.gov/opinions/local-ordinance-prohibiting-consumption-of-malt-beverages-and-unfortified-wine-on-state-highways-2/

Original opinion text

April 7, 1994

Charles J. Nooe, City Attorney
City of Eden
607 Washington Street
Eden, North Carolina 27288

Re: Advisory Opinion: Local Ordinance Prohibiting Consumption of Malt Beverages and Unfortified Wine on State Highways; N.C.G.S. 18B-300

Dear Mr. Nooe:

In response to your March 18, 1994 letter, it is the opinion of this office that a local ordinance may not prohibit consumption of malt beverages and unfortified wine on State highways within the corporate limits of the City of Eden. N.C.G.S. 18B-300(a) must control.

Your letter states that the City of Eden has adopted or intends to adopt an ordinance making it unlawful for a person to consume malt beverages and unfortified wine within, on, or upon the rights-of-way of the public streets of the city. The question is whether this ordinance can be extended to include State highways running through the city limits of Eden. N.C.G.S. 18B-300(a) provides: "Except as otherwise provided in this Chapter, purchase, consumption and possession of malt beverages and unfortified wine by individuals 21 years old and older for their own use is permitted without restriction." This same section provides, however, that a city or county may, by ordinance, regulate the "consumption" of malt beverages and unfortified wine on property "owned or occupied by that city or county." N.C.G.S. 18B-300(c).

The Department of Transportation is responsible to repair, construct, reconstruct and maintain highways at the expense of the entire State. N.C.G.S. 136-45. This same responsibility falls on the State even though the highway is located within the corporate limits of a city. N.C.G.S. 136-66.1. It is clear, therefore, that State highways running through the corporate limits are not "property owned or occupied by" the city. N.C.G.S. 18B-300(c).

Although a city has authority to enact ordinances to protect the health, safety, and welfare of its citizens and the peace and dignity of the city (N.C.G.S. 160A-174), such an ordinance cannot contravene State law. The clearly established rule of law is that general laws prevail over ordinances. State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973). An ordinance which makes criminal or illegal any conduct that is legalized and sanctioned by the General Assembly is invalid. Davis v. City of Charlotte, 242 N.C. 670, 89 S.E.2d 406 (1955).

The General Assembly has specifically incorporated this rule of law into Chapter 18B. Except as provided in this Chapter, local ordinances establishing different rules on the manufacture, sale, purchase, transportation, possession, consumption, or other use of alcoholic beverages or requiring additional permits or fees, are prohibited. N.C.G.S. 18B-100.

Unlike mixed beverages, spirituous liquor, and fortified wine which may not be consumed on any public road, street, highway, or sidewalk [N.C.G.S. 18B-301(f)(1)], malt beverages and unfortified wine may be possessed and consumed unless prohibited. No local ordinance may add additional restrictions to the right granted by the General Assembly.

We hope this letter has answered your questions. If we can be of further assistance, please do not hesitate to call upon us.

William N. Farrell, Jr.
Senior Deputy Attorney General

Isaac T. Avery, III
Special Deputy Attorney General