Can a Texas city make businesses that serve alcohol sell condoms when other businesses don't have to?

Plain-English summary

Houston wanted to fight the spread of HIV and other sexually transmitted diseases by putting condoms where people drink. The proposed ordinance would have made any business that serves alcohol for on-premises consumption (bars, restaurants, and the like) keep condoms for sale, at a counter or in restroom vending machines, and post health information in the restrooms. The reasoning was that alcohol and casual encounters go together. A state legislator asked the Attorney General whether state law allowed the city to do this.

The Attorney General said no, and the reason had nothing to do with condoms or public health. It was about a specific rule in the Alcoholic Beverage Code. That code says a city cannot single out alcohol-licensed businesses for tougher requirements than it imposes on similar businesses that do not hold a liquor license. The Legislature wrote that rule to keep cities from using their ordinance power to pile extra burdens on the alcohol industry, and the code declares itself the exclusive regulation of alcoholic beverages in Texas.

The Texas Supreme Court had just applied that rule in a case about a Dallas ordinance, using a fire-extinguisher example: a city can require every similar business to have a fire extinguisher, but it cannot require the bar to have two while the shop next door needs only one. Houston's ordinance had the same problem. It targeted businesses purely because they serve alcohol, while leaving alone every other kind of business where casual encounters might happen. That is exactly the kind of unequal, alcohol-specific burden section 109.57(a) forbids, so the Attorney General concluded the ordinance would be preempted by state law. The opinion was sympathetic to the city's goal but bound by how the statute and the court read it.

Background and statutory framework

Houston is a home-rule city, which under Texas Constitution article XI, section 5 has all powers of self-government not denied by the Legislature, but cannot enforce legislation inconsistent with state law. The Attorney General applied the Texas Supreme Court's preemption framework: courts reconcile a local ordinance and a state law to leave both in effect where possible (City of Richardson v. Responsible Dog Owners of Texas), and find field preemption only where the Legislature acts "with unmistakable clarity" (City of Sweetwater v. Geron), as restated in Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas and City of Brookside Village v. Comeau.

The Alcoholic Beverage Code contains its own preemption provision, section 109.57. Subsection (a) provides that, except as expressly authorized by the code, a regulation, charter, or ordinance promulgated by a governmental entity may not impose stricter standards on premises or businesses required to have a license or permit under the code than are imposed on similar premises or businesses that are not required to have such a license or permit. Subsection (b) states the Legislature's intent that the code exclusively govern the regulation of alcoholic beverages and that a governmental entity may not discriminate against a license or permit holder except as the code permits.

In Dallas Merchant's, the Texas Supreme Court considered whether section 109.57 preempts a home-rule ordinance prohibiting alcohol sales within 300 feet of a residential area, and held that section 109.57(b) makes the regulation of alcoholic beverages exclusively governed by the code unless otherwise provided, so section 109.57 preempts an ordinance regulating where alcohol is sold under most circumstances. The court illustrated section 109.57(a) with a fire-extinguisher example: requiring all businesses with the same kind of premises to have an extinguisher would not violate the statute, but requiring an alcohol-related business to have two while a similar non-alcohol business needs only one would.

Citations

• Alcoholic Beverage Code § 109.57, § 109.57(a) (no stricter standards on licensed businesses than on similar non-licensed businesses), § 109.57(b) (code exclusively governs alcohol regulation; no discrimination against license holders)
• Tex. Const. art. XI, § 5 (home-rule powers; no enforcement of legislation inconsistent with state law)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 36 Tex. Sup. Ct. J. 742, 743-45 (1993) (section 109.57 preempts home-rule ordinances regulating alcohol; fire-extinguisher example)
• City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982)
• City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17, 19 (Tex. 1990)
• City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964)

Common questions

Could Houston require alcohol-serving businesses to sell condoms?
No. The Attorney General concluded the proposed ordinance would be preempted by section 109.57(a) of the Alcoholic Beverage Code, because it imposed a requirement on businesses that must hold a liquor license without imposing the same requirement on similar businesses that do not.

Why did the Alcoholic Beverage Code control a public-health ordinance?
Because section 109.57 bars cities from singling out alcohol-licensed businesses for stricter standards than similar non-licensed businesses, and declares the code the exclusive regulation of alcoholic beverages. The Attorney General concluded the condom requirement, aimed only at alcohol-serving premises, fell within that bar.

What was the fire-extinguisher example about?
It came from the Texas Supreme Court's Dallas Merchant's opinion. A city can require every similar business to have a fire extinguisher, but it cannot require an alcohol-related business to have two while a comparable non-alcohol business needs only one. The Attorney General found Houston's ordinance was no different: it singled out alcohol sellers.

Was the city's public-health goal a problem?
No. The Attorney General expressly acknowledged the city's effort to reduce disease transmission by encouraging condom use. The ordinance failed not because of its goal but because of how it singled out alcohol-licensed businesses, which section 109.57(a) forbids.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0229
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0229.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 16, 1993

Honorable Debra Danburg
Chair
Committee on Elections
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-229

Re: Whether a proposed City of Houston ordinance, which would require that condoms be available for sale in "business premises upon which alcoholic beverages are sold for on-premises consumption," is preempted by state law (RQ-522)

Dear Representative Danburg:

You ask whether an ordinance under consideration by the City of Houston (the "city"), which would require that condoms be available for sale in "business premises upon which alcoholic beverages are sold for on-premises consumption," is preempted by state law. With your request, you have furnished a copy of the proposed ordinance. The proposed ordinance's preamble states that its purpose is to reduce the risk of transmission of sexually transmitted diseases, including the human immunodeficiency virus ("HIV"), by increasing the availability of condoms. Apparently, business premises upon which alcoholic beverages are sold for on-premises consumption are the focus of the proposed ordinance because "among the major contributing factors of transmission of sexually transmitted diseases are casual interpersonal relationships and poor judgments related to the influence of alcohol."

The proposed ordinance would require the "owner and principal manager of a business premises upon which alcoholic beverages are sold for on-premises consumption [to] make high quality latex condoms available upon its premises in one of the following manners," which include offering condoms for sale at a sales counter or through coin-operated machines in restrooms. The proposed ordinance would also require the owner or principal manager of such a business to "continuously display signs in each restroom to which any member of the public has access setting forth information concerning HIV and other sexually transmitted diseases and the benefits of the use of condoms with language provided by the City of Houston Health and Human Services Department." Violation of either of these provisions would constitute a misdemeanor, but would "not affect a license or permit granted under the provisions of the Texas Alcoholic Beverage Code."

The City of Houston is a home-rule city. The Texas Constitution grants such cities all the power of self-government not expressly denied them by the legislature. Tex. Const. art. XI, § 5; Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 36 Tex. Sup. Ct. J. 742, 743 (April 10, 1993). The Texas Constitution prohibits a home-rule city from enforcing any legislation inconsistent with state laws or the state constitution. Tex. Const. art. XI, § 5; Dallas Merchant's & Concessionaire's Ass'n, 36 Tex. Sup. Ct. J. at 743 (citing City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982)). The Texas Supreme Court has instructed that, in determining whether an ordinance is fatally inconsistent with a state law on the same subject matter, courts must seek to construe the two in a way that will leave both in effect, if possible. City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17, 19 (Tex. 1990). "[T]he mere fact that the legislature has enacted a law addressing a subject does not mean the complete subject matter is completely preempted." Id. Moreover, it is well established that "if the Legislature chooses to preempt a subject matter usually encompassed by the broad powers of a home-rule city, it must do so with unmistakable clarity." Dallas Merchant's & Concessionaire's Ass'n, 36 Tex. Sup. Ct. J. at 743 (citing City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964)).

The Alcoholic Beverage Code contains a preemption provision, section 109.57, which provides in pertinent part:

(a) Except as is expressly authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity of this state may not impose stricter standards on premises or businesses required to have a license or permit under this code than are imposed on similar premises or businesses that are not required to have such a license or permit.

(b) It is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a business holding a license or permit under this code.

Alc. Bev. Code § 109.57(a), (b). The question before us is whether this provision would preempt the proposed ordinance.

In a recent opinion, Dallas Merchant's & Concessionaire's Association, the Texas Supreme Court considered whether section 109.57 of the Alcoholic Beverage Code preempts a home-rule city ordinance prohibiting the sale of alcoholic beverages within 300 feet of a residential area. In that opinion, the court stated, "The Legislature's intent is clearly expressed in section 109.57(b) of the [Alcoholic Beverage Code]-the regulation of alcoholic beverages is exclusively governed by the provisions of the [Alcoholic Beverage Code] unless otherwise provided. . . . section 109.57 clearly preempts an ordinance of a home-rule city that regulates where alcoholic beverages are sold under most circumstances." 36 Tex. Sup. Ct. J. at 744 (citation and footnotes omitted). The court also noted that section 109.57(a) provides that an ordinance may not impose stricter standards on alcohol related businesses than on non-alcohol related businesses:

For example, under section 109.57(a), an ordinance requiring all businesses with the same kind of premises to have a fire extinguisher on their premises would not violate section 109.57(a). On the other hand, an ordinance requiring an alcohol related business to have two fire extinguishers and only requir[ing] a non-alcohol related business with the same kind of premises to have one fire extinguisher would violate section 109.57(a).

Id. at 745 n.5.

Subsection (a) prohibits a city from adopting an ordinance imposing "stricter standards on premises or businesses required to have a license or permit . . . than are imposed on similar premises or businesses that are not required to have such a license or permit." It expresses with "unmistakable clarity" the legislative intent to preempt such ordinances. We appreciate the city's effort to reduce the transmission of sexually transmitted diseases by encouraging the use of condoms and distributing educational material. The Texas Supreme Court's interpretation of subsection (a) of section 109.57 in Dallas Merchant's & Concessionaire's Association, however, compels us to conclude that the proposed ordinance would be preempted.

The proposed ordinance's justification for requiring business premises upon which alcoholic beverages are sold for on-premises consumption to make condoms for sale is that the presence of alcohol contributes to the transmission of sexually transmitted diseases. It targets these businesses solely because they sell alcohol for on-premises consumption. It does not require other businesses which might contribute to the transmission of sexually transmitted diseases, and are therefore "similar businesses" for purposes of the proposed ordinance, to make condoms available for sale. We believe this is no different from an ordinance requiring an alcohol related business to have two fire extinguishers and only requiring a non-alcohol related business with the same kind of premises to have one fire extinguisher, which the Texas Supreme Court suggested would violate section 109.57(a). Id.

Because the proposed ordinance would impose "stricter standards on premises or businesses required to have a license or permit . . . than are imposed on similar premises or businesses that are not required to have such a license or permit," we must conclude that it would be preempted by subsection (a) of section 109.57 of the Alcoholic Beverage Code as construed by the Texas Supreme Court.

SUMMARY

A proposed City of Houston ordinance, which would require "business premises upon which alcoholic beverages are sold for on-premises consumption" to make condoms available for sale, would impose "stricter standards on premises or businesses required to have a license or permit . . . than are imposed on similar premises or businesses that are not required to have such a license or permit," contrary to subsection (a) of section 109.57 of the Alcoholic Beverage Code, and would therefore be preempted by state law.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee