§ 45-39A-50 — Local Option Election Authorized for Sale and Distribution of Alcoholic Beverages

(a)(1) The Legislature of Alabama is cognizant of Opinion of the Justices No. 376, 825 So. 2d 109 (Ala. 2002), which states on page 115 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 overexpanding 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 granted by Section 104 of the Constitution of Alabama of 1901, the electors of the municipality of St. Florian located in Lauderdale County may change its classification from dry to wet or wet to dry by a municipal option election as provided by Act 2003-360.

Legislative History

(Act 2003-360, p. 1005, §§1, 2.)