Can a Virginia county board of supervisors put a mixed-beverage-sales referendum on the ballot, or does the petition have to come from voters?

Plain-English summary

Pittsylvania County's attorney asked whether the Board of Supervisors (or any of its members in an official capacity) could file a petition to put a mixed-beverage sales referendum on the ballot. Section 4.1-124 of the ABC Act allows a locality to permit mixed-beverage sales by restaurants if a majority of voters approves at a referendum. The triggering mechanism is a petition filed in circuit court, and § 4.1-124(A) specifies that the petition comes from "qualified voters" of the locality and must be signed by ten percent of the locality's qualified voters (or 100 voters, whichever is greater).

Cuccinelli concluded the answer was no. "Qualified voters" does not include the Board of Supervisors as an entity. Individual board members are themselves qualified voters and could sign the petition in their personal capacity, but their status as board members confers no greater authority than other citizens. The AG underscored the point with a comparison: § 4.1-123(A) (the Sunday alcohol provision) expressly says "[e]ither the qualified voters or the governing body" may petition. The omission of "governing body" from § 4.1-124(A) implies it was intentional (expressio unius est exclusio alterius). Two background doctrines reinforced the result: the ABC Act is a comprehensive legislative scheme preempting local action outside its express authorizations, and Virginia adheres to the Dillon Rule, which strictly construes local-government authority and resolves any doubt against the locality.

Currency note

This opinion was issued in 2011. 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.

Common questions

What's the practical workaround for a board that wants a mixed-beverage referendum?
The board cannot file the petition itself, but board members are qualified voters and may sign a citizens' petition in that personal capacity. Other voters need to gather the rest of the required signatures to meet the threshold.

What is the Dillon Rule and why did it matter?
Virginia's Dillon Rule grants local governing bodies only those powers "expressly granted by the state legislature, those powers fairly or necessarily implied from expressly granted powers, and those powers which are essential and indispensable." Any doubt is resolved against the locality. The Code did not expressly authorize a board to petition under § 4.1-124, so no implied or essential authority existed.

How is the ABC Act "preemptive"?
The opinion described the ABC Act as a comprehensive legislative scheme by which the Commonwealth has preempted control of alcoholic beverages, so political subdivisions retain only the limited and specific authority set out in the statute.

What's the canon expressio unius est exclusio alterius doing here?
It means "mention of one thing implies the exclusion of another." Because § 4.1-123(A) expressly authorized both qualified voters and the governing body to file a petition for Sunday-alcohol restrictions, the omission of "governing body" from § 4.1-124(A) signaled a deliberate choice to keep boards out of the mixed-beverage petition process.

Background and statutory framework

Section 4.1-124 is part of the ABC Act, the Commonwealth's comprehensive alcoholic beverage control regime. Subsection (A) allows the "qualified voters of a town, county, or supervisor's election district of a county" to file a petition with the circuit court for a referendum on whether mixed-beverage sales by ABC-licensed restaurants should be permitted. Once a petition is filed, "and under no other circumstances," the court orders the election officials to conduct the referendum.

Signature thresholds: ten percent of the qualified voters of the jurisdiction or 100 qualified voters, whichever is greater (the General Assembly amended this provision in 2011 (2011 Va. Acts ch. 560) to simplify the language, but the substantive identity-of-petitioner requirement remained).

The term "qualified voters" refers to individual eligible voters, not to the board of supervisors. Section 4.1-123(A) (Sunday alcohol limits) by contrast expressly mentions both "the qualified voters or the governing body" as possible petitioners, so the omission of the governing body from § 4.1-124(A) reads as deliberate: the mention of one thing in a statute generally implies the exclusion of another.

The two background doctrines applied are ABC Act preemption and the Dillon Rule of strict construction of local-government authority.

Citations

• Va. Code § 2.2-505 (authority for the advisory opinion)
• Va. Code § 4.1-124(A) (mixed-beverage referendum petition)
• Va. Code § 4.1-123(A) (Sunday-alcohol petition; both voters and governing body)
• 2011 Va. Acts ch. 560 (simplifying amendments to § 4.1-124)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-069-Hunt.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

July 1, 2011

Attorney General

J. Vaden Hunt, Esquire
Pittsylvania County Attorney
Post Office Box 426
Chatham, Virginia 24531

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Hunt:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire whether a member of a Board of Supervisors ("Board"), individually, or the Board, as a unit, may petition the circuit court pursuant to § 4.1-124(A) in order to place on the ballot a referendum asking whether the jurisdiction should permit, within its boundaries, the sale of mixed beverages by restaurants licensed by the Virginia Alcoholic Beverage Control Board.

Response
It is my opinion that, based on the plain language of § 4.1-124(A), neither a member of the Board nor the Board in its entirety is authorized to petition the circuit court for a referendum on mixed beverage sales.

Applicable Law and Discussion
Section 4.1-124 of the Alcoholic Beverage Control (ABC) Act provides that a locality may permit the sale of mixed beverages when a majority of the voters in that jurisdiction approves such sales by referendum. Section 4.1-124(A) further provides that:

The qualified voters of a town, county, or supervisor's election district of a county may file a petition with the circuit court of the county asking that a referendum be held on the question of whether the sale of mixed beverages by restaurants licensed by the [ABC] Board should be permitted within that jurisdiction... Upon the filing of a petition, and under no other circumstances, the court shall order the election officials of the county to conduct a referendum on the question.

The General Assembly has taken action to amend this provision of the statute to simplify the language, but the relevant portions will remain unchanged. See 2011 Va. Acts ch. 560.

When a statute is clear and unambiguous, the rules of statutory construction dictate that the statute be interpreted according to its plain language. Here, the Code expressly requires such a petition to be signed by ten percent of the qualified voters of a jurisdiction or by one hundred qualified voters, whichever is greater. Because "qualified voters" does not refer to or include the Board of Supervisors, and the mention of one thing in a statute generally implies the exclusion of another, I conclude that a Board of Supervisors and its members are not authorized under § 4.1-124 to petition a court to call for a referendum regarding the sale of mixed beverages by restaurants. This conclusion is supported by the comparable language of § 4.1-123(A), which provides that "[e]ither the qualified voters or the governing body" may file a petition to limit the sale of alcohol on Sundays (emphasis added). If the General Assembly had intended to permit a Board of Supervisors or its members to file a petition in the situation you present, it clearly knew how to do so.

In addition, the ABC Act constitutes a comprehensive legislative scheme, by which the Commonwealth has preempted control of alcoholic beverages, so that political subdivisions retain only the limited and specific authority set out in the statute. Moreover, Virginia adheres to the Dillon Rule of strict construction, which provides that local governing bodies have "only those powers which are expressly granted by the state legislature, those powers fairly or necessarily implied from expressly granted powers, and those powers which are essential and indispensable." Any doubt as to the existence of the power must be resolved against the locality. I can find no other Code section that would provide a Board of Supervisors the authority to file such a petition. As such, only qualified voters may file a petition to seek a referendum on the sale of mixed beverages.

Conclusion
Accordingly, it is my opinion that neither a member of the Board nor the Board in its entirety is authorized to petition the circuit court for a referendum on mixed beverage sales.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

Clearly, the individual members of the Board are qualified voters, but their status as Board members does not afford them any greater authority than other citizens in this instance.

The General Assembly is presumed to have chosen with care the words it used when it enacted the statute. The legislature knows how to express its intention.