(a)(1) The Legislature of Alabama is cognizant of "Opinion of the Justices No. 376," issued April 9, 2002, which states that a local bill for Cherokee County "purporting to allow by local law the creation of a traffic in alcohol that does not presently exist in smaller municipalities in Cherokee County, does not fit within the ambit of the last paragraph of Section 104 permitting the Legislature to pass local laws regulating or prohibiting such traffic." The effect of this Opinion of the Justices is to greatly limit situations in which local laws may be enacted regarding alcoholic beverages. This opinion was, in part, based upon a determination that, "Generally, 'regulate' implies the exercise of control over something that already exists." While respecting the constitutional authority granted to the Alabama Supreme Court to interpret the Constitution of Alabama of 1901, this body disagrees with the conclusion reached by the court concerning Section 104. In an effort to further define this issue and to assist the court in the appropriate interpretation of Section 104, the Legislature of Alabama respectfully makes the following findings:
a. As used in Section 104, the term "regulate" was not intended to be of a narrowing or restraining nature. If that was the intent of the framers of the constitution, an appropriate verb such as "limit," "restrict," or "suppress," in conjunction with the phrase "existing laws," would have been employed.
b. With all due respect to the court, the word "regulate" does not generally imply "the exercise of control over something that already exists" and such a construction is not the "general sense of the phrase." To the contrary, one of the initial definitions of regulate in "Black's Law Dictionary" is "to fix, establish, or control"; and "establish" in the same dictionary includes the definition "to found, to create, to regulate." Unquestionably, regulate does not imply application only to something in existence; rather, the term includes the "establishment" or "creation" of the thing to be subsequently managed.
c. The interpretation of the term "regulation" adopted by the court, if applied to other federal and state constitutional and statutory provisions, will result in unreasonable and unintended restrictions. For instance, the language in Article I, Section 8 of the United States Constitution. "The congress shall have power ... to regulate commerce ..." was not intended to only apply to types of commerce in existence at the time the United States Constitution was adopted. In fact, the U.S. Supreme Court has stated that this clause should be broadly construed to meet the ever-expanding and increasingly complicated conditions of commerce. Similarly, numerous state statutes are initially adopted to regulate certain types of professional or vocational activities or functions, and these activities or functions are concurrently initially authorized. Under the court's construction, if such activities or functions are not first in existence, they may not subsequently be controlled.
d. In view of the research of the court indicating the absence of any discussion concerning this issue in the debates of the 1901 Constitutional Convention, and the absence of any reference to historical records of that time, the interpretation of Section 104 by modern era historians should only be given marginal consideration. As stated by the court, such historical perspectives merely give the "appearance" of intent, and, accordingly, are not supportive of specific construction of Section 104.
e. The concluding paragraph of Section 104 is a unique provision providing for a form of local option or home rule. In view of the present sentiments of Alabama citizens to allow local control of public matters, it is essential that this body and the judiciary appropriately interpret this provision.
(2) Based upon the reasons expressed in subdivision (1), as a matter of law, the Legislature declares that this section regulates the liquor traffic within the meaning and intent of Section 104 of the Constitution of Alabama of 1901.
(b) Notwithstanding any other provision of law, including, but not limited to, Chapter 2A of Title 28, and pursuant to authority to regulate the liquor traffic granted by Section 104 of the Constitution of Alabama of 1901, the electors of an incorporated municipality located in Clarke County with a population of not less than 5,000 inhabitants may change its classification from dry to wet or wet to dry by a municipal option election as provided by this section.
(c)(1) Upon petition of 25 percent of the number of voters voting in the last general election of the municipality having a population of not less than 5,000 inhabitants being filed with the city or town clerk or governing body of the municipality, the governing body shall call a municipal option election for the municipality to determine the sentiment of the people as to whether alcoholic beverages may be legally sold or distributed in the municipality. The petition for the municipal option election shall contain the following: "It is petitioned that a municipal option election be held to determine whether the legal sale and distribution of alcoholic beverages shall be permitted within this municipality." On the ballot to be used for the municipal option election, the question shall be in the following form: "Do you favor the legal sale and distribution of alcoholic beverages within this municipality? Yes ___ No ___."
(2) The municipal option election shall be held and the officers shall be appointed to hold the election in the manner provided by law for holding other municipal elections and the returns thereof tabulated and the results certified as provided by law for municipal elections. The municipal option election shall be held on the date set by the governing body. Notice of the municipal option election shall be given by the governing body of the municipality by publication at least three weeks before the date of the election, in a newspaper in the municipality, or, if there be none, in a newspaper in the county, or, if there be neither, by posting the notice at the town or city hall, apprising the voters of the municipality that a municipal option election shall be held to determine whether the municipality shall be wet or dry under this section. The cost of the municipal option election, including the cost of notice by publication, shall be paid out of the general fund of the municipality.
(3) Only qualified electors of the municipality may vote in the municipal option election. If a majority of the electors voting in the municipal option election vote "yes," the municipality shall be wet, and alcoholic beverages may be legally sold, distributed, and consumed within the corporate limits of the municipality, and all of the provisions of Title 28, relating to alcoholic beverages in wet municipalities, including, but not limited to, Chapters 3, 3A, 6, and 7, shall be immediately put into operation with respect to and effective within the corporate limits of the municipality. Notwithstanding the results of any subsequent county election, special method referendum, or other election, the municipality shall remain wet until changed to a dry municipality at a subsequent municipal option election conducted in the same manner as required for the initial election, including, but not limited to, the petition procedure.
(4) If a majority of the voters voting in the municipal option election vote "no," the municipality shall be a dry municipality under the terms of this section until the municipality, by a subsequent municipal option election held under this section, votes wet.
(5) At least 1,560 days shall have lapsed before a second municipal option election may be held in the municipality.
Last modified: May 3, 2021