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Gibson v. City of Alexander3/17/2000
municipality cannot be liable for a wanton, willful, reckless, or intentional act, relying on Ala. Code 1975, § 11-47-190. On April 15, 1999, the trial court entered an order dismissing the mayor and the members of the city council. On April 17, 1999, the court granted the City's motion to dismiss, stating that "the City had the authority to enact Ordinance 097-7, and said Ordinance is not inconsistent with state law."
Gibson appealed. The sole issue Gibson raises on this appeal is whether the City had authority to adopt an ordinance restricting the sale of alcoholic beverages.
Section 11-45-1, Ala. Code 1975, authorizes municipalities to adopt ordinances in furtherance of their police powers. It provides:
"Municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the powers and duties conferred by the applicable provisions of this title and any other applicable provisions of law and to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of the inhabitants of the municipality, and may enforce obedience to such ordinances."
Section 11-45-9, Ala. Code 1975, allows municipalities to impose penalties upon persons who violate municipal ordinances:
"(a) Municipal ordinances may provide penalties of fines, imprisonment, hard labor or one or more of such penalties for violation of ordinances.
"(b) No fine shall exceed $500.00, and no sentence of imprisonment or hard labor shall exceed six months except, when in the enforcement of the penalties prescribed in section 32-5A-191 [pertaining to driving under the influence ], such fine shall not exceed $5,000.00 and such sentence of imprisonment or hard labor shall not exceed one year."
In Lanier v. City of Newton, 518 So. 2d 40 (Ala. 1987), this Court wrote:
"`Inconsistent' is defined by Black's Law Dictionary (5th ed. 1979) as ` utually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.' It implies `contradiction -- qualities which cannot coexist -- not merely a lack of uniformity in details.' City of Montgomery v. Barefield, 1 Ala. App. 515, 523, 56 So. 260, 262 (1911).
"In Gadsden Motel Co. v. City of Attalla, 378 So. 2d 705 (Ala. 1979), this Court held that an ordinance prohibiting the sale of alcoholic beverages within the City or its police jurisdiction between 12:01 a.m. and 6:00 a.m. on any secular day was not inconsistent with a regulation promulgated by the Alabama Alcoholic Beverage Control Board requiring its licensees to discontinue sales, and close at 12:00 midnight Saturday until 12:01 a.m. Monday and on election days until after the polls close.
"`It is within the authority of the Attalla City Council under § 11-45-1 to regulate hours of sale beyond those hours effected by the Board's regulation where there is no conflict and the municipal ordinance sets hours that are reasonable. Here there is no conflict and the evidence shows that the hours of sale prescribed by the ordinance are neither unreasonable nor arbitrary. 378 So. 2d 706.'
"Judge DeCarlo, writing for the Court of Criminal Appeals of Alabama, in Congo v. State, 409 So. 2d 475, 478, (Ala. Cr. App. 1982), cert. denied, 412 So. 2d 276 (Ala. 1982), wrote:
"`Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the municipal law prohibits anything which the State law specifically permits. See Leu v. C
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