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AGLO 1980 No. 24 - July 15, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- LIQUOR CONTROL BOARD ‑- INTOXICATING LIQUOR ‑- OWNERSHIP OF LIQUOR SAMPLES

Such samples of liquor as are furnished to the State Liquor Control Board under RCW 66.28.040 are the property of the state of Washington.

                                                                  - - - - - - - - - - - - -

                                                                    July 15, 1980

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1980 No. 24

Dear Sir:

            By letter previously acknowledged, you requested our opinion as to whether:

            ". . . samples of liquor furnished to the State Liquor Control Board under RCW 66.28.040 constitutes state property?"

            For the reasons set forth in our analysis, it is our opinion that they do.

                                                                     ANALYSIS

            RCW 66.28.040 is a part of the state liquor code originally enacted in 1933 following the repeal of prohibition.1/   This statute generally prohibits manufacturers or suppliers of liquor from giving ". . . to any person any liquor."  It further provides, however, that:

             [[Orig. Op. Page 2]]

            ". . .nothing in this section shall prevent the furnishing of samples of liquor to the board for the purpose of negotiating the sale of liquor to the state liquor control board, and nothing in this section shall prevent a brewer from serving beer without charge, on the brewery premises, and nothing in this section shall prevent a domestic winery from serving wine without charge, on the winery premises."  (Emphasis supplied)

            The question here posed is whether such liquor samples as are furnished to the Liquor Control Board pursuant to this section of the state liquor code constitute property of the state. To this question there can, in our opinion, be only one legally sustainable answer.

            The Liquor Control Board is a state agency established by the legislature2/ both to regulate the sale of alcoholic beverages, including beer and wine, by others (i.e., licensees)3/ and, itself, to sell such liquor through a system of state liquor stores.4/   It is in this latter context, obviously, that the liquor samples here in question are provided.  Therefore, even though obtained by gift rather than purchase, it necessarily follows that those samples, being providedto the board (and not individual board members) for a state purpose, are a form of state property.

            Two other sections of the liquor code lend further support (if any is necessary) to this conclusion.  First to be noted is RCW 66.08.080, codifying § 68 of the Steele Act,supra, which provides that:

            "No member of the board and no employee of the board shall have any interest, directly or indirectly, in the manufacture of liquor or in any liquor sold under this title, or derive any  [[Orig. Op. Page 3]] profit or remuneration from the sale of liquor, other than the salary or wages payable to him in respect of his office or position, and shall receive no gratuity from any person in connection with such business."  (Emphasis supplied)

            It thus follows that any ability on the part of the board to accept liquor samples for further distribution to individual board members would be statutorily inconsistent with the members' individual inability to derive remuneration or profit, or accept gratuities, in connection with the board's business.

            The other statute which confirms our answer to your question, while also a part of the liquor code, is of more recent vintage.  We have reference to RCW 66.28.045 which codifies § 9, chapter 173, Laws of 1975, 1st Ex. Sess., and reads as follows:

            "The legislature findsthe furnishing of samples of liquor to the state liquor control board is an integral and essential part of the operation of the state liquor business.  The legislature further finds that it is necessary to establish adequate standards for the accountability of the receipt, use and disposition of liquor samples.  The board shall adopt appropriate regulations pursuant to chapter 34.04 RCW for the purpose of carrying out the provisions of this section." (Emphasis supplied)

            By this provision the legislature seems clearly to have taken notice of the board's longstanding practice of receiving liquor samples,5/ recognized that those samples constituted a form of state property, and, accordingly, acted to formalize, statutorily, the agent's (i.e., the board) duty to account to its principal (the state) for their use and disposition.  Accord, 3 Am.Jur.2d, Agency, § 211,et seq., 2A, C.J.S., Agency, § 307, et seq.

             [[Orig. Op. Page 4]]

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILLIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See chapter 62, Laws of 1933, 1st Ex. Sess., commonly known as the Steele Act, of which RCW 66.28.040 originated as § 30.

2/See, RCW 66.08.012.

3/See, generally, so much of the liquor code as is contained in chapter 66.24 RCW.

4/RCW 66.16.010, et seq., and see also, RCW 66.44.130 which, in effect, creates a state monopoly as to the sale of spiritous liquor (as defined in RCW 66.04.010(29)) by the unopened bottle.

5/See State v. Hood, et al., 93 Wn.2d 603, ___ P.2d . . . . (1980).

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