INTOXICATING LIQUOR ‑- CONSUMPTION IN UNLICENSED CLUBS

INTOXICATING LIQUOR ‑- CONSUMPTION IN UNLICENSED CLUBS

A bona fide private club need not be licensed in order for its members to consume their own liquor on the premises, and whether a club is operating illegally is a question of fact.

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                                                               November 22, 1950

Honorable Victor Zednick
Washington State Senator
1611-Sixth Avenue West
Seattle, Washington                                                                                                              Cite as:  AGO 49-51 No. 391

Dear Sir:

            You have asked this office for an opinion with reference to the present status of the law in relation to "bottle clubs," your inquiry having read as follows:

            "Referring to the status of bottle clubs as described in State v. Lake City Bowlers Club Inc., 26 Wn. (2d) 292, it appears that the status of clubs under the old law known as 23T, is well defined therein.

            "Since that time, Initiative 171 has been passed and I would like your opinion as to whether or not a proper club (and I would like a definition of a proper "bottle" club) can operate under that initiative, which does not seem on its face to deal with the problem."

            Our conclusions may be summarized as follows:

            1. The law today does not require a bona fide private club to be licensed by the liquor control board in order for its members to bring onto the club premises their own liquor and to consume the same there.

            2. Whether or not a club is operating illegally is a question of fact.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            There may be several variations in the way in which a "bottle club" operates.  However, we deem it unnecessary to discuss the status of unlicensed places wherein liquor is sold inasmuch as the maintenance of any establishment for such purpose is clearly unlawful.  No specific definition of the words "bottle club" will be found in the laws of this state but through common usage and understanding the term has become recognized generally as referring to an unlicensed club wherein the members furnish their own liquor and the management supplies the glasses, ice, mixers, other nonalcoholic ingredients and facilities for the consumption of liquor for a consideration.  In such a club, the member either retains possession of his liquor at all times or places the liquor in the custody of the management, from which the latter mixes the member's drinks upon request.

            Prior to the amendment of section 23-T of the Washington state liquor act (Rem. Supp. 1949, § 7306-23T) by Initiative Measure No. 171 (L. '49, ch. 5), said section read as follows:

            "There shall be a license to clubs, entitling each member of the club to keep on the premises a reasonable quantity of liquor for personal consumption on the premises: Provided, That no club shall be entitled to such a license:

            "a. Unless such club had been in operation at least three years prior to the effective date of this act, or, the club, being thereafter formed, had been in continuous operation for at least one year immediately prior to the date of its application for such license;

            "b. Unless the club premises be constructed and equipped, conducted, managed, and operated to the satisfaction of the board and in accordance with this act and the regulations made thereunder;

            "c. Unless the board shall have determined pursuant to any regulations made by it with respect to clubs, that such club is a bona fide club; fee $300.00 per annum."

             [[Orig. Op. Page 3]]

            By reason of the statute quoted this office consistently took the position that "bottle clubs," as such, were illegal, inasmuch as the law prohibited the doing of any act which required a license without having in force the applicable license provided under the liquor act.  The question ultimately was brought to the attention of our Supreme Court in the case ofState v. Lake City Bowlers' Club, Inc., 26 Wn. (2d) 292, 173 P. (2d) 783.  The court there had under consideration, in determining whether the defendant club was guilty of violating the liquor act by reason of the fact that it did not hold a license issued by the liquor control board, the following set of facts:

            1)         In one instance a member entered the premises with a bottle of liquor, seated himself at a table and was furnished by an employee of the club with glasses and mixers.  The member then consumed some of his liquor and retained possession at all times of the bottle which he had brought into the club.

            2)         In another instance, a member upon entering the club with a bottle of liquor gave it to an employee of the club, who thereafter mixed and served drinks for the member from the bottle and returned it to him when he was ready to leave the premises.

            3)         Again, a member brought a bottle of liquor to the club, had it labeled with his name and then had it placed in a locker to which only he or employees of the club had access.  Subsequently the member obtained drinks from his bottle until it was empty.

            4)         In the fourth set of circumstances, the member entered the club with a bottle of liquor, an employee of the club took custody of it, labeled it with the member's name and then served drinks to the member from the bottle until the contents were consumed, the member never handling or having access to the bottle after it had been turned over to the employee.

             [[Orig. Op. Page 4]]

            The four sets of facts above enumerated illustrate about every conceivable method of operating organizations of the nature in question.  The court held that the club was doing the very thing that under section 23-T of the liquor act required a license, namely, the keeping on the premises by the members of liquor for their personal consumption thereon.

            The initiative measure passed by the people at the general election in 1948 (initiative 171) amended section 23-T of the liquor act, section 6 of the initiative reading in part as follows:

            "Section 23T of chapter 62 of the Laws of 1933, Extraordinary Session, as added thereto by chapter 217 of the Laws of 1937, being Rem. Rev. Stat., sec. 7306-23T, is hereby amended to read as follows:

            "Section 23T.  No club shall be entitled to a Class H license:

            "(a) Unless such club had been in operation at least three (3) years prior to the effective date of this act, or, the club, being thereafter formed, had been in continuous operation for at least one year immediately prior to the date of its application for such license;

            "(b) Unless the club premises be constructed and equipped, conducted, managed, and operated to the satisfaction of the Board and in accordance with this act and the regulations made thereunder;

            "(c) Unless the Board shall have determined pursuant to any regulations made by it with respect to clubs, that such club is a bona fide club; it being the intent of this section that license shall not be granted to a club which is, or has been, primarily formed or activated to obtain a license to sell liquor, but solely to a bona fide club, where the sale of liquor is incidental to the main purposes of the club, as defined in section 3 of chapter 158, Laws of 1935; * * *."

             [[Orig. Op. Page 5]]

            As a result of such amendment, the following changes will be noted: 1) the first sentence of section 23-T as it appeared prior to the passage of the initiative has been completely eliminated and entirely new and different language has been substituted therefor; 2) subsections (a) and (b) remain unchanged; and 3) subsection (c) reads the same as it previously did with the exception that new matter has been added thereto.

            In arriving at a proper solution of the question concerning the effect of the amendatory act upon the section amended, we have for guidance certain well-recognized rules. Whenever the lawmakers provide that a certain section of the law shall be amended "to read as follows," the effect of such act is to substitute the words of the amended section in place of the section amended and to repeal all of the provisions of the old section.  In other words, the original statute ceases to exist and the section as amended supersedes it.  Further, an amendatory statute which sets out in full all that the statute as amended is intended to contain becomes a substitute for the statute amended but does not necessarily abrogate it for all purposes, and so much of the original as is repeated in the later statute without substantial change is not repealed and re‑enacted [[reenacted]]but is continued in force without interruption from the time the amended statute was enacted.  When a statute is amended or revised and a material change is made in the wording or an important part eliminated, it is presumed that the lawmakers intended a change in the law; and when the later act purports to set out in full all that the section is intended to contain, any matter which was in the original section, but not in the amendatory section, is repealed by the omission.  In the case ofState ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673, 131 P. (2d) 943, the court said as follows:

            "* * * when a section is amended 'to read as follows,' the section as amended contains all that was intended to be in that section as amended, and the court cannot lift from a prior amendment a portion thereof and say the legislature intended this to be a part of the original section as amended also.  We think it must be assumed that the last amendment is the last word of the legislature, and contains the final act of the legislature, and that the act as finally amended supersedes all attempted prior amendments of the original section."

             [[Orig. Op. Page 6]]

            Alexander v. Highfill, 18 Wn. (2d) 733, 140 P. (2d) 277,Longview Co. v. Lynn, 6 Wn. (2d) 507, 108 P. (2d) 365.  In re Phillips' Estate, 193 Wash. 194, 74 P. (2d) 1015.  Yakima Amusement Co. v. Yakima County, 192 Wash. 174, 73 P. (2d) 519.

            As pointed out above, the first sentence of section 23-T as it appeared prior to the latest amendment was completely stricken therefrom and in its place an entirely new element was introduced in so far as the licensing of clubs is concerned.  Before such amendment, the statute made it mandatory for a club to be licensed in order for its members simply to be able to keep on the premises their own liquor and to drink the same there.  This provision was obliterated by the initiative and the section is confined solely to the conditions requisite for a club in qualifying for a Class H license.  The initiative created a retailer's license designated as Class H license for the sale of beer, wine and spirituous liquor by the glass, and beer and wine by the opened bottle, and authorizes the issuance of such license to bona fide restaurants, hotels and clubs, to dining places on common carriers, and to certain other establishments (sec. 1, ch. 5, L. 1949).  The disappearance from section 23-T, as amended, of the requirement that a club be licensed if the members were to be permitted to consume their own liquor on the premises, which license in no way authorized the sale of liquor by the club, is abrupt and significant, and the abscission must have been deliberate.  In any event, we are not permitted to assume that the language of the former statute was unintentionally omitted, particularly when the wording of the subsections outlined above was retained.  We must conclude, therefore, that from a material change in the wording of the statute, a change in legislative purpose was intended and that the statute as finally amended is complete.

            In the light of the above principles, it appears that the decision in the case ofState v. Lake City Bowlers' Club, Inc., supra, is today not applicable inasmuch as it hinged upon section 23-T prior to its amendment by initiative 171.  It therefore becomes necessary, in pursuing the answer to your question, to examine the entire liquor act as it now reads and to ascertain whether there now exists any provision of the act which makes "bottle clubs," as we understand that term, unlawful.

            Section 2 of the act (§ 7306-2, Rem. Rev. Stat. Supp.) declares it to be an exercise of the police power of the state for the protection of the welfare, health, peace, morals, and safety of the people of the state, and that all of its provisions shall be liberally construed for the accomplishment of that purpose.

             [[Orig. Op. Page 7]]

            Section 4 of said act provides for the establishment by the liquor control board of state liquor stores for the sale of liquor.

            Section 5 vests in said board the duty and authority to administer the act, including the general control, management and supervision of state liquor stores.

            Section 6 provides for the sale of liquor in such stores by employees of the board.

            Section 7 prescribes the manner in which the holder of a liquor permit shall order and purchase liquor from employees in state stores.

            Section 12 provides for the issuance of permits to individuals entitling the holders to purchase liquor for beverage purposes.

            Section 15 prohibits the issuance of an individual permit to any corporation, partnership, or other unincorporated association of individuals.

            Section 16 specifies when such permits expire.

            Section 17 authorizes the board to suspend or cancel permits under certain circumstances.

            Sections 23-A to 23-S-1 provide for licensing the manufacture, importation and sale of liquor.

            Section 28 makes it unlawful for any person to do any act required to be licensed under the act without having in force a license issued to him.

            Section 29 deprives the municipalities and counties of any power to license the sale or distribution of liquor in any manner or to impose an excise tax thereon.

            Section 30 prohibits manufacturers and wholesalers from making gifts of liquor.

            Section 31 prohibits employees of the board from selling liquor in any other place or at any other time, or otherwise than as authorized by the board and the regulations.

             [[Orig. Op. Page 8]]

            Section 32 permits the manufacture of wine and beer in any home for consumption therein but not for sale.

            Section 33 provides for requiring liquor to be sealed with the official seal adopted by the board and prescribes the procedure to be followed in connection with the obtaining of search warrants and making returns thereon.

            Section 33-A declares places to be common nuisances in which liquor is manufactured, kept, sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the act or of the laws of the state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor, and provides for the abatement of any such nuisance.

            Section 34 makes it a misdemeanor for any person to open the package containing liquor or to consume liquor in a public place except as permitted by the act.

            Section 35 provides a penalty for any person who is in any public place while intoxicated.

            Sections 36-A and 37 prohibit the furnishing of liquor to minors.

            Section 37-A makes it an offense for any person to invite a minor to a public place where liquor is sold.

            Section 42 prohibits persons, with certain exceptions, from acting as an agent for the purchase or sale of liquor.

            Section 49 restricts the importing of liquor into the state for use or sale therein.

            Sections 50 and 51 exempt from the act pharmaceutical, medicinal, toilet and culinary preparations containing liquor.

            Section 52 requires licensed premises to be open to inspection.

            Sections 56 and 56-A authorize the inspection of records of licensees, common carriers and of persons financing licensees.

            Section 59 provides that proof of one unlawful sale of liquor is prima facie evidence of the intent to unlawfully keep liquor for sale in violation of the act.

             [[Orig. Op. Page 9]]

            Section 67 applies to the placing of orders by the board for the purchase of liquor.

            Section 69 enumerates certain powers of the board.

            Section 70 charges all county and municipal peace officers with the duty of investigating and prosecuting all violations of the act and also empowers the board to enforce the penal provisions of the act.

            Sections 73 to 75 relate to revenue received by the board in connection with administering the act.

            Section 78 provides for the distribution of the board's income to the general fund of the state, and to counties, cities and towns.

            Section 79 authorizes the board to make regulations which are not inconsistent with the spirit of the act for the purpose of carrying into effect its provisions according to their true intent.

            Section 92 sets forth various penalties for violations of the act, providing, among others, that it is a misdemeanor to buy liquor from any person other than the board, a state liquor store or someone authorized to sell the same, and that it is a gross misdemeanor to have or keep liquor other than that purchased as aforesaid.

            From a study of the foregoing provisions, it will be seen that the liquor control board is authorized to sell liquor through the operation of state liquor stores and that a holder of a valid permit is entitled to purchase liquor from the state for his personal consumption.  While the act is inclusive and specific with reference to those who desire to traffic commercially in liquor, and is replete with admonitions against the doing of certain things, yet nowhere in the act are we able to find any provision which expressly tells the individual who buys his liquor at a state liquor store where he may consume the same.  All that we can find is the negative of the proposition, namely, that he is not permitted to consume liquor in apublic place (sec. 34, supra).  It must follow, therefore, that he is entitled to drink the liquor which the state sells to him in aprivate place.  Moreover, the act does not purport to compel him to drink alone.  If a group of individuals, then, may assemble in a private home, for example, and there consume their own liquor, it would seem consistent to conclude that the same privilege of consuming liquor which they legally acquired from the state would extend to  [[Orig. Op. Page 10]] the privacy of their club rooms.  In the latter case, whether such conduct is lawful or not, would appear to depend primarily upon whether their club is, in fact, a bona fide private club, and this brings us down to the nub of your question, namely, what constitutes a "proper bottle club"?  We doubt whether a definition could be formulated which would be entirely satisfactory because whether a "bottle club" is operated in a proper manner or not would be, as we have indicated, a question of fact.

            Section 3 of the liquor act defines the term "club" as meaning "an organization of persons, incorporated or unincorporated, operated solely for fraternal, benevolent, educational, athletic or social purposes, and not for pecuniary gain."

            The term "public place" is defined as follows:

            "'Public place' includes streets and alleys of incorporated cities and towns; state or county or township highways or roads; buildings and grounds used for school purposes; public dance halls and grounds adjacent thereto; those parts of establishments where beer may be sold under this act, soft drink establishments, public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, theatres, stores, garages and filling stations which are open to and are generally used by the public, and to which the public is permitted to have unrestricted access; railroad trains, stages, and other public conveyances of all kinds and character, and the depots and waiting rooms used in conjunction therewith which are open to unrestricted use and access by the public; publicly owned bathing beaches, parks and/or playgrounds; and all other places of like or similar nature to which the general public has unrestricted right of access, and which are generally used by the public."

            Webster's International Dictionary, Second Edition, defines the word "club" as meaning "an association of persons for the promotion of some common object, as literature, science, politics, good-fellowship, etc., esp. one jointly supported and meeting periodically.  Membership is usually conferred by ballot, and carries the privilege of exclusive use of club quarters."

             [[Orig. Op. Page 11]]

            While we would not presume to be experts in the field of lexicography, we shall, however, take the liberty of making a few observations with reference to our impressions of what a club should be.  In order to claim the status and dignity of a club, it would seem that it must be more than a mere loosely-knit association.  It should be organized for a legitimate purpose, be governed by a constitution and by-laws, hold regular meetings, have a roster of members, provide for the admittance of members upon application and after some sort of ballot, have standards of eligibility for members and provide for the payment of initiation fees and dues consistent with the nature and purpose of the club.  The existence or nonexistence of such elements might demonstrate whether it is actually a bona fide private club or simply a place which is open to the public and is operating under the guise of a club.  A club or similar association of individuals could not be used as a means to accomplish a violation of the liquor law, and if the organization is a mere shift or device to evade the law, having for its principal purpose the distribution of liquor to its members, its bona fides would be questionable.

            It is our conclusion that whether an unlicensed club which permits its members to consume their own liquor on the premises is operating properly, is, as before stated, a question of fact to be determined in each individual case, the principal question being whether it is in fact a bona fide private club or a mere subterfuge for the purpose of doing business with the general public.  Furthermore, whether the law should allow bona fide private clubs to operate in a manner whereby the members may keep and consume their own liquor in the club without the organization being licensed is a question that may properly be answered by the legislature.  It is our opinion that such clubs are not covered under the Washington state liquor act at this time, and whether they should be regulated by means of a license is a legislative problem.

Very truly yours,

SMITH TROY
Attorney General

JOSEPH P. LAVIN
Assistant Attorney General