Alabama

Alabama is a limited home rule state—legislative power is concentrated in the state legislature, but cities have been delegated authority to govern their own affairs. Local governments in Alabama possess only the powers expressly granted to them by the state or that are incidental to such expressly conferred powers, as well as those powers “indispensably necessary to the accomplishment of the objects of the municipality.” Phenix City v. Putnam, 109 So. 2d 836, 838 (Ala. 1959). Cities, having been statutorily granted a version of the police power, have the most autonomy of any category of Alabama local government. Still, the legislature does not have the power to permit cities to pass laws inconsistent with the general laws of the state. Ala. Const. art. IV, § 89.

Constitutional Provisions:

Alabama’s constitution does not directly delegate home rule authority and police power to local governments, leaving the scope of municipal authority to the Alabama legislature. Article XII, sections 220–28 and other provisions of the state constitution address the limits of municipal authority. See, e.g., Ala. Const. art. XI, § 216(limiting property tax power); Ala. Const. art. IV, § 94 (limiting grant and lending power to private persons or corporations). The Alabama Constitution additionally prohibits the legislature from authorizing cities “to pass any laws inconsistent with the general laws of [Alabama].” Ala. Const. art. IV, § 89.

In 2015, Alabama’s constitution was amended to provide additional powers to counties. See Ala. Const. Act 2015-220.

Statutory Provisions:

Under the limited police power granted them by the Alabama legislature, cities may, “from time to time,” adopt ordinances and resolutions pursuant to powers expressly delegated by the state and may also “provide for the safety, preserve the health, and promote the prosperity, and improve the morals, order, comfort, and convenience of the inhabitants” of the city, so long as the local legislation is not inconsistent with state law. Ala. Code § 11-45-1.

Although municipalities exercise “‘such power . . . as is conferred upon [them] by law,’ a municipality need not predicate its every action upon some specific express grant of power. Alabama’s cities possess certain implied powers that derive from the nature of the powers expressly granted to them by the legislature.” Wilkins v. Dan Haggerty & Assocs., 672 So. 2d 507, 509 (Ala. 1995). In other words, cities can exercise powers that are necessarily implied from an express grant of power. Id. There are some limits to cities exercising their power, however. For example, the Court of Civil Appeals has stated that “[l]ocal legislation reflecting responses to local needs may not be enacted when those local needs have already been responded to by general legislation.” Danny’s, Inc. v. City of Muscle Shoals, 620 So. 2d 8 (Ala. Civ. App. 1992).

Alabama has 464 incorporated municipalities; four of those have a population greater than 100,000. Under state law, “cities” are defined as jurisdictions with a population of 2,000 or greater. Ala. Code. § 11-40-6. Cities are then further categorized into “classifications” based on population as certified by the 1970 federal decennial census. For example, all cities with 300,000 or more inhabitants are “Class 1” cities. Ala. Code. § 11-40-12. Currently, Birmingham is the state’s only Class 1 city. Cities incorporated after June 28, 1979 are classified based on their population at the time of its incorporation. Id. § 11-40-12(c). The Alabama Legislature may not amend the charter of a municipality, but it may change or alter their boundaries through legislative acts Ala. Const. art. IV, § 104(18).

Alabama courts recognize three circumstances where municipal ordinances are preempted by state law: when (1) a state law expressly defines the extent to which it preempts municipal ordinances; (2) a city attempts to regulate conduct in a field that state law exclusively occupies; or (3) a municipal ordinance is inconsistent with state law. See Ex parte Tulley, 199 So. 3d 812, 821 (Ala. 2015).

Express Preemption: 

Express preemption occurs when the state legislature includes explicit preemptive language in state law. In Alabama, express preemption occurs when “[a] state statute . . . expressly defines the extent to which its enactment preempts municipal ordinances.” City of Gulf Shores v. Coyote Beach Sports, LLC, 2024 WL 1592183 at *1 (Ala. 2024). For example, Alabama has expressly preempted lower levels of government from regulating labor peace agreements:

A county, municipality, or any other political subdivision of this state shall not enact or administer any ordinance, rule, policy, or other mandate that creates requirements, regulations, or processes relating to labor peace agreements or similar agreements. Any ordinance, policy, rule, or other mandate of a county, municipality, or any other political subdivision of this state that is inconsistent with this section is void.

Ala. Code § 25-7-42(a).

Field Preemption: 

Field preemption occurs when state statutes occupy an entire legislative field, leaving no room for local regulation. In Alabama, an ordinance may be field preempted “when [it] attempts to regulate conduct in a field that the [state] legislature intended the state law to exclusively occupy.” City of Gulf Shores, 2024 WL 1592183 at *1. For the state to preempt an entire field from regulation, “there must be some clear expression of legislative intent . . . or a statement of the legislature’s desire to have uniform regulations statewide.” Peak v. City of Tuscaloosa, 73 So. 3d 5, 19–20 (Ala. Crim. App. 2011). For example, Alabama has expressly preempted the field of firearm regulation:

(a) The purpose of this section is to establish within the Legislature complete control over regulation and policy pertaining to firearms, ammunition, and firearm accessories in order to ensure that such regulation and policy is applied uniformly throughout this state to each person subject to the state’s jurisdiction and to ensure protection of the right to keep and bear arms recognized by the Constitutions of the State of Alabama and the United States. This section is to be liberally construed to accomplish its purpose . . . (c) Except as otherwise provided in [this Act] or as expressly authorized by a statute of this state, the Legislature hereby occupies and preempts the entire field of regulation in this state touching in any way upon firearms, ammunition, and firearm accessories to the complete exclusion of any order, ordinance, or rule promulgated or enforced by any political subdivision of this state.

Ala. Code § 13A-11-61 (emphasis added).

Conflict Preemption: 

In Alabama, conflict preemption occurs when a municipal ordinance “permits what a state statute forbids or forbids what a state statute permits.” City of Gulf Shores, 2024 WL 1592183, at *1. For example, in Glass v. City of Montgomery, the Alabama Supreme Court held that a local ordinance automating photographic enforcement of traffic-violations did not conflict with the Alabama motor-vehicle and traffic code by requiring more restrictions than the state laws. 360 So. 3d 1021 (Ala. 2021).

Building Electrification. Ala. Code § 37-18-2: “Except as otherwise provided in this chapter, no governmental entity may adopt an ordinance, resolution, regulation, or policy that prohibits, or has the effect of restricting, a person’s or entity’s ability to use a utility service of a provider that is authorized to do business in this state.”

Appliance Electrification. Ala. Code § 9-17-125: “This article shall preempt any local law or any ordinance or authority of any local governing body to regulate [liquid petroleum gas room heaters] and no local law or ordinance or authority of any local governing body shall supersede this article.”

Government Contracts. Ala. Code § 41-16-8: This law prohibits governmental entities from entering contracts worth more than $15,000 with companies with more than 10 employees engaged in “economic boycotts.” Economic boycotts are defined as “refusing to deal with, terminating business activities with, or otherwise taking any commercial action that is intended to penalize or inflict economic harm on a company solely because the company, without violating controlling law or regulation . . . [e]ngages in the exploration, production, utilization, transportation, sale, or manufacturing of fossil fuel-based energy, timber, mining or agriculture[,]” or “does not meet, is not expected to meet, or does not commit to meet environmental standards or disclosure criteria, in particular to eliminate, reduce, offset, or disclose greenhouse gas emissions[,]” among other non-climate related areas.

In determining whether a local ordinance is preempted by state law, Alabama courts consider whether a state statute expressly “defines the extent to which its enactment preempts municipal ordinances,” a municipal ordinance attempts to regulate in a field that the state legislature “intended the state law to exclusive occupy,” or a municipal ordinance “permits what a state statute forbids or forbids what a state statute permits.” Ex Parte Tulley, 199 So. 3d at 812, 821. The limited power of cities to enact ordinances is tempered to some extent by a judicial trend to apply deference to the validity of municipal legislative actions. Peak v. City of Tuscaloosa, 73 So. 3d 5, 11 (Ala. Crim. App. 2011) (“[M]unicipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable.”) (cleaned up).

The cases below demonstrate how Alabama courts have viewed municipal authority and the state’s power to preempt local ordinances. 

• Ex parte Tulley, 199 So. 3d 812 (Ala. 2015): The defendant (Tulley) was convicted in a trial court of carrying a pistol outside his own premises in violation of a Jacksonville city ordinance. Id. at 814. That ordinance incorporated by reference a state statute’s misdemeanors, offenses, and violations, made them municipal misdemeanors, offenses, and violations when those acts occur within the city’s jurisdiction, and imposed a punishment different than the state statute. Id. at 815. The Supreme Court of Alabama granted review to determine whether the city ordinance that Tulley was charged under violated his due process rights. While ultimately declaring the state statute unconstitutional on other grounds and reversing Tulley’s conviction, the court also explained that if the state has not preempted a field, “the same acts may be prohibited by the state and a municipality and the penalties may be different so long as the penalty provided ‘is not in excess of that which the municipality has been granted the authority to impose.’” Id. at 821. Additionally, the court acknowledged that “mere differences in detail” between a local ordinance and a state statute do not create a conflict, nor does a local act related to a matter that state law is silent on. Id.
• City of Center Point v. Atlas Rental Prop., LLC, 371 So. 3d 856 (Ala. 2022): In 2019, the City of Center Point passed Ordinance No. 2019-11 (COA Ordinance) that required, among other things, landlords to obtain a certificate of occupancy before allowing a new tenant to take possession of a rental-housing unit. Plaintiffs, two rental-property management companies, filed suit seeking injunctive relief against Center Point, arguing that 2019-11 was preempted by the Alabama Uniform Residential Landlord and Tenant Act (AURLTA). The Alabama Supreme Court upheld the trial court’s preliminary injunction, holding that the COA Ordinance was expressly preempted because the state clearly intended to regulate the landlord-tenant relationship in Alabama to the exclusion of counties and cities based on the AURLTA’s language. Specifically, the Court stated that section 35-9A-131 of AURLTA expressly prohibits ordinances “relative to residential landlords, rental housing codes, or the rights and obligations governing residential landlord and tenant relationships.” Center Point, 371 So. 3d at 860. The Court reasoned that the COA Ordinance related to residential landlords and the obligations of their relationship to tenants—and was therefore preempted—by restricting the association and contract formation between landlords and tenants “unless and until the landlord acquire[d] a certificate of occupancy.”

Other Relevant Cases 

Lewis v. Bentley, 2017 WL 432464 (N.D. Ala. Feb. 1, 2017) (upholding an Alabama state law that prohibits local governments from enacting their own minimum wage ordinances).

Peak v. City of Tuscaloosa, 73 So. 3d 5 (Ala. Crim. App. 2011) (concluding that city ordinance requiring registration of septic tanks was valid because the city was engaging in a governmental function within its statutory police powers).

Recent and Ongoing Litigation

In September 2024, the City of Montgomery passed an ordinance requiring carriers of a concealed firearm in a vehicle or on one’s person within the city’s jurisdiction to also carry photo identification.¹ Failing to provide a photo identification when requested was to result in confiscation of the firearm. On September 9, 2024, the state’s Attorney General sent a letter to Montgomery’s city council, stating the gun control ordinance is preempted by state law and must be repealed.² In January 2025, the Montgomery City Council, by a vote of 5-4, repealed the ordinance.³

Alabama has adopted a statewide building code, as well as codes for mechanical, electrical, and plumbing systems, that sets the minimum building standards for state-owned properties, movie theaters, schools, and hotels. Ala. Admin. Code § 355-12-1-.01; Ala. Admin. Code § 355-12-1-.04. The Division of Construction Management, the state agency that enforces the code, does not have jurisdiction over residential or commercial property.

The adopted statewide code reflects the 2021 edition of the International Building Code (IBC), published by the International Code Council (ICC). Id. Alabama does not have a mandatory statewide building code for residential and commercial properties (excluding the building types listed above). Local jurisdictions have the express authority to adopt codes for residential and most commercial property, excluding “private schoolhouses, hotels, public and private hospitals, and moving picture houses.” Ala. Code § 41-9-166. Pursuant to this authority, Birmingham has adopted most of the 2021 code editions published by the ICC,⁴ while Montgomery has adopted the 2018 Edition of the IBC.⁵ Additionally, the state fire marshal “may adopt residential construction and building codes relating to fire prevention and protection applicable statewide that supersede the municipal and county codes to the extent they are inconsistent with the code adopted by the state fire marshal.” Ridnour v. Brownlow Homebuilders, Inc., 100 So. 3d 554, 560 (Ala. Civ. App. 2012). Alabama has adopted an amended version of the 2021 International Fire Code.

What is the relevant utility regulatory body in the state? Who and what does it regulate? The Alabama Public Service Commission (PSC) regulates private, investor-owned utilities. See Ala. Code §§ 37-1-13, 37-4-1(5), (7). “Title 37 confers two types of jurisdiction on the PSC. First, the PSC has regulatory jurisdiction to set rates for utility service, to establish service regulations for utility providers, and to regulate utility equipment . . . Second, the PSC has adjudicatory jurisdiction over certain disputes involving utilities, including claims ‘made against any utility . . . by any body politic or municipal organization’ to determine whether ‘any . . . service regulation . . . is in any respect unfair, unreasonable, unjust or inadequate.’” City of Wetumpka v. Alabama Power Co., 297 So. 3d 367, 370 (Ala. 2019); see also Ala. Code § 37-1-83. The PSC does not have regulatory jurisdiction over municipal electric utilities, which are not-for-profit utilities run by a city. Ala. Code § 37-1-34. It also does not regulate wholesale power generators or the Tennessee Valley Authority (TVA).⁶ See Ala. Code §§ 37-1-33; 37-1-43. TVA provides electricity service to northern Alabama.⁷

What authority, if any, do municipalities have over utilities? Adhering to the state’s limited home rule regime, municipalities’ “only power to regulate utilities is the power granted to [them] by the Constitution or by state legislation.” Alabama Power Co. v. State, 527 So. 2d 678, 683 (Ala. 1988). A recent statute, while implementing constitutional municipal veto authority of utility operation, significantly restricts municipal authority over electric suppliers with assigned service territories. Ala. Code § 11-49-1. For electric and gas utilities meeting certain criteria, municipalities cannot impose separate fees beyond statutorily established taxes. Id. § 11‑49‑1(b). The statute preserves existing franchise agreements but limits future increases in franchise fees for gas utilities unless approved by voters. Id. § 11-49-1(c)–(d). 

Although the state legislature has delegated authority over investor-owned utilities to the PSC, municipal electric utilities are not mandated to purchase power from a particular investor-owned utility. For example, while Huntsville, Alabama buys its electricity from the TVA and then distributes it,⁸ other cities have joined together to form joint action agencies to purchase electricity from several generating companies and also generate their own electricity.⁹ Additionally, as noted below, municipalities retain jurisdiction over their streets, other highways, and public places, giving cities power over whether, how, and where electric utilities can site utility-related infrastructure like transmission lines, substations, and transformers. 

Section 220 of the Alabama Constitution gives cities the authority to consent or withhold consent to operation of a utility on their “streets, avenues, alleys, or public places.” Ala. Const. art. XII, § 220. Further, under Alabama Code, the PSC’s jurisdiction shall not be construed “(1) [t]o limit or restrict the police jurisdiction or power of municipalities over their streets and other highways and public places or the power to maintain or the power to require maintenance of the same; (2) [t]o limit or restrict any right or power, by contract or otherwise, of any municipality to require utilities to pave and maintain the portions of highways used and occupied by them[.]” Ala Code § 37-1-35. 

Can cities enter into franchise agreements with utilities? Cities can enter into franchise agreements with proper statutory authorization but are currently limited in their power to grant franchise agreements. Section 220 of the Alabama Constitution states: “No person, firm, association, or corporation shall be authorized or permitted to use the streets, avenues, alleys, or public places of any city, town or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town, or village.” The Alabama Supreme Court has held that Section 220 gives cities the right to consent or withhold consent to operation of a utility on its street as a veto power, and is not an affirmative power to grant utility franchises. Alabama Power Co., 527 So. 2d at 684. In other words, under the Court’s interpretation of Section 220, a city does not have “an absolute right to choose any supplier it desires.” Id. Additional statutory authority is required to support municipal franchise agreements. Id. at 687. Furthermore, Section 228 of the Alabama Constitution prohibits municipalities with a population of over 6,000 from granting franchises for a period longer than 30 years. 

How can cities intervene in Public Service Commission proceedings? Pursuant to statute, “every person, firm, co-partnership, association, or organization affected thereby may by petition intervene and become a party to any proceeding before the commission.” Ala. Code Ann. 37-1-87. Further, under Ala. Admin. Code. § 770-X-4-.08(3), “[a]nyone entitled under the law to complain to the Commission may petition for leave to intervene in any pending proceeding prior to or at the time it is called for hearing, but not after, except for good cause shown. Petitions shall set forth the grounds of their proposed intervention; the position and interest of the petitioner in the proceeding; and if affirmative relief is sought, should conform to requirements for a formal complaint.” In practice, the Southeast Energy Efficiency Alliance has explained that “the public often has minimal opportunities to participate in commission proceedings and limited information on participation,” but it is unclear if this extends to municipal involvement.¹⁰

Does the state have an obligation to serve statute? Yes, Alabama’s obligation to serve statute states that “[e]very utility shall render adequate service to the public and shall make such reasonable improvements, extensions and enlargements of its plants, facilities and equipment as may be necessary to meet the growth and demand of the territory which it is under the duty to serve.” Ala. Code § 37-1-49.

Has the state passed enabling legislation for community choice aggregation (CCA)? No, Alabama currently lacks enabling legislation for community choice aggregation programs.¹¹

Justin Murdock, Sweet Home Alabama: Navigating Home Rule Status Through State Federalism, 4 Princeton L. J. F. 14 (Winter 2024), https://perma.cc/SX5P-95PC (breaking down Alabama’s non-Home Rule status and the implications of Dillon’s rule related to municipal powers and taxation).

J. Michael Allen III & Jamison W. Hinds, Alabama Constitutional Reform, 53 Ala. L. Rev. 1 (Fall 2001), https://perma.cc/CX2G-A4Q9 (considering constitutional reform in Alabama, cataloguing the issues with Alabama’s 1901 Constitution, and recounting past constitutional reform efforts).

Alabama’s constitution is one of the longest in the United States, primarily because counties lack legislative autonomy. Counties have no general grant of power—the state legislature must delegate any powers counties hold through constitutional amendments or state statutes (known as “local legislation”).¹²