Thomas, 041098 MSAGO, AGO 98-142

• Case Date: April 10, 1998
• Court: Mississippi

Nancy Thomas, Esq. AGO 98-142 No. 98-0142 Mississippi Attorney General Opinions April 10, 1998          Nancy Thomas, Esq.          City Attorney          1401 Walnut Street          Vicksburg, MS 39181          Re: Municipal regulation of beer and light wine sales           Dear Ms. Thomas:          Attorney General Mike Moore has received your request for an opinion of this office and has assigned it to me for research and response. Your letter states:

         The City of Vicksburg has a history of “problem” lounges which are places where only beer and wine are sold to be consumed on the premises. Presently, there are certain lounges that are permitted for the sale of light wine and beer which have caused our law enforcement agencies considerable problems because the proprietors do not control their patrons, either inside or out of the building. We have had problems with minors being inside of these businesses, in addition to shootings and other assaults which have occurred there. In fact, recently the District Attorney filed a suit in County Court to revoke the beer permits of two proprietors. The beer permits were revoked. Within days of the revocation of the permits, a friend or relative of the previous proprietor applied for a permit and it was granted by the State Tax Commission. Although the beer permit is in another name, we have found that the same people are actually running the business. This has been a common practice for many of the places that have been closed down by either law enforcement or the State Tax Commission.

         We have found in the past that beer permits have been issued to convicted felons, to persons residentially domiciled with a person who previously had the permit revoked, and to persons who have given vacant lots as their domicile, contrary to Section 67-3-19. We do not intend to criticize the State Tax Commission, but we do feel that the applications for permits should be thoroughly investigated and the State Tax Commission does not have the manpower to do all of the investigations.          In an effort to more effectively regulate the sale of beer and light wine in the City, particularly for businesses where the beverages will be consumed on the premises, the City requests an opinion on the following:

          Question 1 : Can the city enact an ordinance which allows the City to issue permits for the sale of beer and light wine in addition to the permits given by the State Tax Commission by requesting the same information from an applicant as set forth in Section 67-3-19 and investigating to confirm the validity of the information given? If so, can the City issue permits for either on-premises consumption or off-premises consumption depending on the type of business applying for such a permit and/or the location of such business? Should the City find any evidence that the person should not be given a beer permit, the City would deny the application for a permit and have an appeals process before the Board of Mayor and Aldermen.

          Response : The general rule is that municipalities may not regulate activity that has been preempted by state law. With respect to the regulation of beer and light wines, the legislature has largely preempted the field by implementation of a thorough regulatory scheme. See Chapter 3, Title 67, Miss. Code of 1972. As stated in previous opinions of this office, with the exception of Miss. Code Ann. Sec. 67-3-65, it is the State Tax Commission which sets the only standards regarding the manufacture, sale, distribution, possession, and transportation of light wines and beer. See official opinions of this office to Jerry L. Mills, dated July 26, 1995; Sarah O‘Reilly-Evans, dated March 4, 1992; and James A. Walters, dated May 20, 1992. As the Mississippi Supreme Court stated in Powell v. State Tax Com ., 233 Miss. 185, 101 So.2d 350, 352 (1958)...