Preemption Tool

What can my community do about alcohol outlets?

The state and federal preemption doctrine refers to the authority of higher levels of government to mandate the practices of lower levels of government.[i] It has been used to advance public health goals such as the enactment of federal and state mandates related to vaccination policy and the establishment of quarantines to prevent the spread of disease. Local and state governments must adhere to the policies mandated at the higher levels of government and are precluded from deviating from these policies. The federal government's ability to preempt state and local action is limited by the U.S. Constitution - under the 10th Amendment, all authority not expressly granted to the federal government is delegated to the states.[ii] This includes the regulation of alcohol retail outlet density; the 21st Amendment, which repealed Prohibition, explicitly grants states this authority.[iii] State preemption of local governmental action is a matter left to each state, and states vary widely in how they exercise this authority.

All of the states have been put into preemption categories based on how the states approach the licensing of major categories of alcohol retail outlets; licensing provisions related to specialized e stablishments (e.g., common carriers, seasonal businesses, clubs, tasting rooms) were not considered for the analysis. In some cases, where states differentiate between types of local jurisdictions (e.g., charter versus general law cities; cities versus counties; large versus small jurisdictions), the classification was based on the licensing rules that affected the largest portion of a state's population.

In many cases where statutory provisions were unclear and case law was not available to provide definitive guidance, the state was placed in Category 2. This recognizes the fact that local zoning is generally considered a local prerogative independent of state alcohol licensing authority absent a clear legislative statement to the contrary.