Can my city pass an ordinance making it illegal to have an open beer or wine in a car on a street or highway in town, or does state law block that?

Plain-English summary

Eden's city attorney asked about a local ordinance prohibiting consumption of malt beverages and unfortified wine on State highways. The AG answered by identifying two governing limits. G.S. § 18B-300(c) allowed a city or county to prohibit consumption on property it "owned or occupied," including a municipal street right of way. Any ordinance also had to remain consistent with G.S. § 18B-401.

The opinion said State law allowed transport of malt beverages and unfortified wine on every street or highway. It prohibited driver consumption, but not passenger consumption. An ordinance therefore could not conflict with that State rule. The AG said an ordinance could apply to city-owned street rights of way to the extent it remained consistent with G.S. § 18B-401.

The opinion did not decide whether a particular State highway within city limits was property the city "occupied." It also did not state a general rule that cities could never regulate State highways. Its stated permission covered city-owned or city-occupied property, with municipal street rights of way given as an example.

Currency note

This opinion addressed the State alcohol statutes in 1994. Check current law and the property interest at a particular location before drafting or applying an ordinance today.

Background and statutory framework

G.S. § 18B-300(c), as quoted in the opinion, allowed a local ordinance restricting consumption on local-government property. The AG used State v. Williams for the principle that a local ordinance must operate in harmony with State statutes. The opinion described Williams as invalidating a city restriction where a State statute expressly forbade such regulation.

G.S. § 18B-401 supplied the statewide rule on transport and driver consumption discussed in the opinion. A city's power over its own property did not authorize an ordinance conflicting with that rule.

Common questions

Could Eden regulate drinking in a city-owned street right of way?

The AG said a local ordinance could apply there, provided it did not conflict with G.S. § 18B-401.

Did the AG determine whether a State highway inside city limits was "occupied" by the city?

No. The opinion did not analyze that property question. It identified municipal street rights of way as within the property covered by G.S. § 18B-300(c).

Could a local ordinance override the State transport rule?

No. The opinion said State law allowed transport on every street or highway and that local ordinances had to be enforced in harmony with State law.

What did the opinion say about driver and passenger consumption?

It said State law prohibited driver consumption of malt beverages or unfortified wine, but not passenger consumption. It did not decide every possible local ordinance about passengers.

Source

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

Citations

• N.C. Gen. Stat. § 18B-300
• N.C. Gen. Stat. § 18B-300(c)
• N.C. Gen. Stat. § 18B-401
• State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973)

Original opinion text

June 14, 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 May 31, 1994 letter, a local ordinance may prohibit the consumption of malt beverages and unfortified wine on property which is "owned or occupied" by the city or county [N.C.G.S. 18B-300(c)], including any right of way of a municipal street as long as it does not conflict with N.C.G.S. 18B-401.

A city ordinance may not interfere with State law. State v. Williams 283 N.C. 550, 196 S.E. 2d 756 (1973). In Williams, a city ordinance containing language which limited the possession and consumption of beer and unfortified wine in the face of a statute which said such regulations were forbidden was declared invalid. Local ordinances must be enforced in harmony with existing state statutes.

State law allows transport of malt beverage and unfortified wine on every street or highway. N.C.G.S. 18B-401. Consumption of malt beverage or unfortified wine is prohibited for the driver, but not the passengers. A local ordinance may not conflict with this statute. A local ordinance may, however, apply to the right of way of city-owned streets to the extent it does not conflict with N.C.G.S. 18B-401.

William N. Farrell, Jr.
Senior Deputy Attorney General

Isaac T. Avery, III
Special Deputy Attorney General