If a North Carolina town like Chapel Hill passes an open-container ordinance under § 18B-300(c) but does not include statutory definitions of 'malt beverage' or 'unfortified wine' inside the ordinance, is the ordinance void for vagueness, or do the Chapter 18B definitions automatically apply?

Plain-English summary

The Town of Chapel Hill had an open-container ordinance prohibiting possession of open containers of malt beverages and unfortified wine, enacted under the local-authority grant in N.C.G.S. § 18B-300(c). The ordinance did not contain its own definitions of "malt beverage" or "unfortified wine"; instead, those terms appeared in the state alcohol code, Chapter 18B. Defendants in district court attacked the ordinance as void for vagueness on the theory that without internal definitions, a person of ordinary intelligence could not know what the ordinance was reaching. Chapel Hill asked the AG to weigh in.

Chief Deputy AG Andrew A. Vanore, Jr. and Special Deputy AG Robin P. Pendergraft concluded the ordinance was not void for vagueness.

The reasoning came in two parts. First, the General Assembly has comprehensively preempted alcohol regulation in North Carolina. N.C.G.S. § 18B-100 says: "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 . . . are prohibited." So local ordinances regulating alcohol exist only where Chapter 18B expressly allows them. State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973), is the leading case on state preemption of alcohol law.

When § 18B-300(c) gave cities the authority to pass open-container ordinances, it did so within the larger Chapter 18B framework. The terms "malt beverage" and "unfortified wine" are defined in § 18B-101(9) and (15) for the entire chapter. Any local ordinance passed under § 18B-300(c) inherits those definitions whether or not it restates them. Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971), and Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968), establish the broader rule that a local ordinance is "subject to the limitations of the enabling act."

Second, the vagueness doctrine itself does not require an ordinance to repeat definitions that exist in the enabling statute. State v. White, 58 N.C. App. 558, 294 S.E.2d 1 (1982), articulated the North Carolina test: "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. . . . The standard is whether the statutory language gives a person of ordinary intelligence fair notice of what is forbidden by the statute." A person of ordinary intelligence reading Chapel Hill's ordinance understands it bans open containers of malt beverages and unfortified wine. To know what those terms cover, the reader looks at § 18B-101. That is not a vagueness problem; it is the ordinary way statutory cross-references work.

The AG also acknowledged the practical limit on the opinion's reach. AG opinions are not binding on district courts. If the district court continued to dismiss prosecutions on vagueness grounds, Chapel Hill had two paths: amend the ordinance to include the definitions verbatim (eliminating the cross-reference question), or appeal the next dismissal to seek an appellate ruling. The opinion suggested the appellate path would be successful given the strong state-preemption and statutory-construction framework.

Currency note

This opinion was issued in 1996. 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 has been amended several times since 1996, including the addition of fortified wine and mixed-beverages provisions. The state-preemption principle and the vagueness analysis remain stable in North Carolina law. Towns drafting current alcohol-related ordinances commonly include either internal definitions or explicit cross-references to Chapter 18B as belt-and-suspenders drafting practice, even though strictly speaking neither is required.

Background and statutory framework

North Carolina's ABC system is one of the more centralized state alcohol regimes in the United States. The state ABC Commission licenses retailers, distillers, and importers; sets pricing on liquor; runs state stores for distilled spirits; and otherwise controls the alcohol industry. Local-government authority over alcohol is narrow and tightly bounded by Chapter 18B. The state-preemption language in § 18B-100 is unusually explicit.

Open-container ordinances were a common municipal response to public-disorder concerns in college towns and tourist areas in the 1990s. Section 18B-300(c) authorized cities and counties to "regulate or prohibit the possession of malt beverages and unfortified wine, in opened containers, in public places." Chapel Hill, with the University of North Carolina at Chapel Hill in the middle of town, was a natural early adopter.

The 1996 vagueness challenge was part of a broader litigation strategy that defense attorneys used against open-container ordinances in several North Carolina towns. The argument exploited the absence of internal definitions in many ordinances. The AG opinion was a coordinated municipal-side response.

The opinion's reliance on Heaton and Zopfi is structurally important. Those cases hold that local ordinances are creatures of statute, drawing their authority and their terminology from the enabling act. A local ordinance does not exist in a vacuum; it operates within the statutory ecosystem. Someone reading the ordinance is implicitly invited to consult the enabling act, especially where terms are defined there. This is the same way ordinary citizens read federal regulations, which routinely cross-reference statutory definitions without restating them.

The White presumption-of-constitutionality language was useful because it told the district court that, even if the vagueness question were close, the court should adopt the constitutional interpretation. With state-preemption controlling and Chapter 18B providing the definitions, the constitutional reading was clearly available.

Common questions

If the district court keeps dismissing cases, can Chapel Hill enforce its ordinance at all?

In the short term, no. District court rulings bind the parties before that court. Chapel Hill would have to either appeal a dismissal to get an appellate ruling that binds all district courts, or amend the ordinance to add definitions.

Could Chapel Hill have used a different statutory authority that doesn't depend on Chapter 18B?

Unlikely. Section 18B-100's preemption is broad. Any local ordinance regulating alcohol consumption or possession in public places has to fit within a Chapter 18B authorization. Section 18B-300(c) is the standard authority for open-container rules.

What if a Chapel Hill defendant had been carrying a half-percent-ABV beverage?

Under § 18B-101(9), a malt beverage requires at least 0.5% ABV. A beverage right at the cutoff would arguably be within or outside the definition depending on rounding. As a practical matter, near-zero-ABV products (e.g., kombucha, near beer) raised some marginal-case issues, but the AG opinion did not address that question.

Did this opinion apply to other towns with similar ordinances?

The opinion was specifically about Chapel Hill, but its reasoning applies to any North Carolina municipality with a § 18B-300(c) open-container ordinance. Other towns facing similar vagueness challenges could cite the opinion as persuasive authority.

Source

• Landing page: https://ncdoj.gov/opinions/ordinance-prohibiting-the-possession-of-open-containers-of-malt-beverages/

Citations

• N.C.G.S. §§ 18B-100, 18B-101(9), 18B-101(15), 18B-300(c)
• State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973)
• Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971)
• Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968)
• State v. White, 58 N.C. App. 558, 294 S.E.2d 1 (1982)

Original opinion text

• N.C.G.S. § 18B-300(c) and throughout Chapter 18B. The term "malt beverage" is defined by N.C.G.S. § 18B-101(9) as "beer, lager, malt liquor, ale, porter, and any other brewed or fermented beverage containing at least one-half of one percent (0.5%), and not more than six percent (6%), alcohol by volume". According to N.C.G.S. § 18B-101(15), "unfortified wine" is "wine that has an alcoholic content produced only by natural fermentation, or by the addition of pure cane, beet, or dextrose sugar". Based upon principles of state law pre-emption and statutory construction, this local ordinance would not have to define terms found in Chapter 18B.

The General Assembly has pre-empted the regulation of alcohol in North Carolina. State v. Williams, 283 N.C. 550, 554, 196 S.E.2d 756, 759 (1973). N.C.G.S. § 18B-100 specifically states: "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 … are prohibited." Therefore, any local ordinance regulating alcoholic beverages must explicitly be allowed by Chapter 18B. Because Chapel Hill's local ordinance was enacted pursuant to N.C.G.S. § 18B-300, it is constrained by that statutory provision to include the use of the terms malt beverage and unfortified wines.

In further support of the above conclusion is the accepted principle of statutory construction that a local ordinance is "subject to the limitations of the enabling act …". Heaton v. City of Charlotte, 277 N.C. 506, 526, 178 S.E.2d 352, 364 (1971) (regarding definition of the term "immediately adjacent"), citing Zopfi v. City of Wilmington, 273 N.C. 430, 160 S.E.2d 325 (1968). Clearly, Chapel Hill's ordinance is subject to the definition of the term "malt beverage" found in its enabling act, N.C.G.S. § 18B-300.

Next we address whether the Chapel Hill ordinance is void for vagueness because it does not include within the language of the ordinance itself a definition of "malt beverage" or language specifically referencing the statutory definition. Based upon the fact that the ordinance is subject to the limitation imposed by its enabling act, it is not unconstitutionally vague because it fails to define terms clearly defined in Chapter 18B.

The North Carolina Court of Appeals has held that

[t]here is a presumption in favor of constitutionality …. If the statute is susceptible of two interpretations, one constitutional and the other unconstitutional, the former will be adopted…. It is also well established that when a statute is unclear in its meaning, the courts will interpret the statute to give effect to the legislative intent…. State v. White, 58 N.C. App. 558, 559, 294 S.E.2d 1, 2 (1982) (citations omitted). The Court in White also stated that "[v]oid for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed…. The standard is whether the statutory language gives a person of ordinary intelligence fair notice of what is forbidden by the statute." Id. at 563, 294 S.E.2d at 4 (citations omitted).

A local ordinance regulating or prohibiting the possession of malt beverages as proscribed in N.C.G.S. § 18B-300(c) does not have to define the terms used therein. Because of the preemption of the regulation of alcoholic beverages by state law and the specific allowance within the law for a local ordinance in this instance, the definitions found in Chapter 18B of the General Statutes control. Chapel Hill's ordinance governing open containers of malt beverages is not void for vagueness for failure to define terms found in Chapter 18B.

We recognize that our opinion is not binding on the district court. Should our opinion not be persuasive to the court, we suggest that the ordinance either be amended or that an appeal be taken from the court's next dismissal.

Andrew A. Vanore, Jr. Chief Deputy Attorney General

Robin P. Pendergraft
Special Deputy Attorney General