Legal Aspects of State Preemption of Local Authority to Regulate Outlet Density

What is state preemption, and how does it relate to local authority to regulate alcohol outlet density?

The state preemption doctrine refers to the authority of state governments to mandate the practices and policies of lower levels of government. When the doctrine is applied, local governments must adhere to the policies mandated by the higher levels of government, and are precluded from deviating from these policies.20 For example, suppose a state law prohibits alcohol outlets from locating within 300 feet of schools. If there is state preemption of local alcohol outlet density regulation, local governments would be precluded from creating an even bigger alcohol-outlet-free space around schools; if there is no state preemption of local alcohol outlet density regulation, then a stricter local rule (e.g., requiring alcohol outlets to be at least 500 feet away from schools) would be permissible. Note that the state limit serves as a minimum distance requirement in the absence of preemption. Local governments are not allowed to adopt a less stringent limitation than what the state requires unless the state provides explicit authorization to do so.

(Return to top)

Where can I find out whether my state preempts local regulation of alcohol outlet density?

The 2013 PSRs rate the states based on local authority to regulate outlet density. The Center on Alcohol Marketing and Youth (CAMY) at the Johns Hopkins University Bloomberg School of Public Health has also posted state-by-state preemption data, including legal references, on its website. For more detailed information, Mosher and Treffers authored a peer-reviewed article that includes a 50-state analysis of local authority to regulate alcohol outlet density.20

(Return to top)

What does joint state/local licensing refer to?

Many states require all alcohol retail businesses to obtain two business licenses: one from the state and one from the local government.20,11 In these states, the state government will establish basic rules, standards, and limits regarding the type, number, location, and operating practices of retailers in the state. Local governments can usually adopt stricter standards and limits than those applied by the state. As noted above, local governments are not allowed to adopt a less stringent limitation than what the state requires unless the state provides explicit authorization to do so.

What is the difference between local licensing authority and local zoning authority?

All states require alcohol retailers to obtain special business licenses as a condition of operation (this does not apply to government-run retail stores, however). Alcohol outlet density can be regulated through licensing restrictions (e.g., by limiting the type, number, and location of the outlets). Some states delegate this authority to local governments, through either a joint state/local licensing system or an exclusive local licensing system.2

Local governments may also have authority to regulate land use through their zoning powers. Although state governments can regulate land use, local governments are generally responsible for making decisions about how land in their jurisdiction is used, operating within rules and procedures dictated by the state. Local governments typically task planning commissions or other bodies with developing land use plans based on community and economic development goals, and then applying them to individual parcels within the jurisdiction. These decisions require a detailed understanding of the characteristics of the community. Due to their familiarity with local issues and needs, local governments are usually better equipped to make those decisions than state governments.11,2

The two types of authority – licensing and zoning – can exist concurrently but are conceptually distinct. A California court described the difference:

“The essence of zoning lies in metropolitan and regional planning; it is the use and treatment of public and private land . . . in the interest of the community as a whole. The factors and reasons that determine the imposition of metropolitan zoning are entirely different from those which control the regulation of the [production, distribution, sale and] consumption of liquor.”41

Since alcohol outlets are physically located on the land, some local governments may regulate their density through zoning restrictions that limit the type, number, and location of the outlets. However, many states do not permit local governments to use their zoning authority to regulate alcohol outlets, invoking the state preemption doctrine.3

States that do allow local zoning regulations to regulate alcohol outlets may still restrict how those regulations are used. For example, in California, local governments can use their zoning powers to regulate the number, location, and type of new alcohol outlets.42 However, state law preempts localities from using zoning to regulate retail outlets that sell both alcohol and gasoline.43

See below for discussion of specific tools available to local governments for regulating alcohol outlet density.

(Return to top)