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

City Attorney Charles J. Nooe asked the AG whether the City of Eden could adopt a local ordinance prohibiting consumption of malt beverages and unfortified wine on state highways within city limits. Senior Deputy AG William N. Farrell, Jr. and Special Deputy Isaac T. Avery, III replied with a nuanced no-but-partly-yes answer.

G.S. § 18B-300(c) gave cities authority to regulate alcohol consumption on property "owned or occupied" by the city. That language reached city-owned street rights of way: a city could prohibit drinking on the sidewalk, on a city street's right of way, or in a city park. But state highways were not "owned or occupied" by a city even when they ran through the city's geographic boundaries. So the ordinance could not reach a state highway.

G.S. § 18B-401 was the second limit. State law expressly allowed transport of malt beverages and unfortified wine on every street and highway in the state. Consumption by the driver was prohibited (the original open-container provision), but consumption by passengers was not. A city ordinance trying to ban passenger consumption on state highways would conflict with this statutory baseline. The AG cited State v. Williams, 283 N.C. 550 (1973), where the NC Supreme Court struck down a city ordinance that restricted possession and consumption of beer and unfortified wine more aggressively than state law allowed. Local ordinances "must be enforced in harmony with existing state statutes."

The bottom line: the City of Eden could prohibit consumption on its own street rights of way (consistent with § 18B-300(c)), but could not reach state highways and could not override the passenger-transport allowance of § 18B-401.

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. NC's open-container regime in Chapter 20 (motor-vehicle open container) was strengthened after this opinion to bring NC into compliance with federal funding requirements for state open-container laws. That federal compliance dynamic may have shifted the passenger-versus-driver lines drawn in 1994. Cities considering modern alcohol-ordinance work should check the current text of G.S. § 18B-300, G.S. § 18B-401, and the Chapter 20 open-container provisions before drafting.

Background and statutory framework

NC's Alcoholic Beverage Control statutes in Chapter 18B layered state authority over local authority. G.S. § 18B-300 was the city/county authority section. Subsection (c) allowed local governments to "prohibit the consumption of malt beverages and unfortified wine" on local-government property. The reach of "owned or occupied" property was the key to the AG's analysis. City-owned streets and their rights of way were squarely within reach; state highways were not.

G.S. § 18B-401 supplied the statewide transport rule. It expressly allowed transport of malt beverages and unfortified wine in passenger compartments, and it limited the consumption-while-driving ban to the driver. The General Assembly had calibrated this allowance against the open-container concerns; cities could not unilaterally tilt the balance.

State v. Williams was the constitutional anchor. A city ordinance that conflicted with a state ABC statute had been invalidated because cities cannot regulate alcohol more strictly than the state has chosen to. The AG read Williams as foreclosing any local ordinance that tried to ban passenger consumption of beer or unfortified wine on a state highway.

Common questions

So can a city pass an open-container ordinance at all?

Yes, but only within the limits set by state law. A city can prohibit consumption of malt beverages and unfortified wine on city-owned property (parks, plazas, sidewalks). It can extend that to the right of way of municipal streets. It cannot reach state highways, and it cannot impose stricter rules on passengers than § 18B-401 allows.

How does a city know what's a "city-owned" street versus a "state highway"?

NC's road system has two main tiers: state-maintained roads (state highways, including most numbered routes and many roads inside city limits that NCDOT maintains) and city-maintained streets. The maintenance assignment generally tracks ownership. A city attorney drafting an ordinance should check the NCDOT maps or the city's own street-maintenance records to identify which streets are city-owned. The ordinance can describe its reach by reference to "city-maintained" or "municipally-owned" streets to keep the boundaries clean.

Does this opinion say anything about consumption by the driver on a state highway?

The AG noted in passing that "consumption of malt beverage or unfortified wine is prohibited for the driver, but not the passengers" under § 18B-401. That statewide driver prohibition existed independently of any local ordinance. The opinion's focus was on whether a city could add a passenger prohibition; it did not unwind the driver prohibition.

What about possession of an open container by a parked car on a state highway shoulder?

The opinion does not address that scenario. A parked car on a state highway shoulder is still on a state highway for purposes of § 18B-401, so any analysis would have to work through the state statute first. The opinion's general theme (city ordinance cannot conflict with state baseline) likely applies.

Could a city argue that a state highway "running through" it is "occupied" by the city?

The AG implicitly rejected that reading by upholding the state-highway/city-street distinction. The "owned or occupied" language of § 18B-300(c) had to mean more than mere geographic overlap; if mere overlap counted as "occupation," the city/state allocation in Chapter 18B would collapse. The opinion treated "occupied" as a real-property concept, not a jurisdictional one.

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