AGO 1971 No. 38 - Nov 30 1971
INTOXICATING LIQUOR ‑- MINORS ‑- ADMISSION OF PERSONS BETWEEN AGES OF EIGHTEEN AND TWENTY-ONE TO TAVERNS
Notwithstanding the enactment of chapter 292, Laws of 1971, 1st Ex. Sess., persons between the ages of 18 and 21 years are still prohibited from entering an establishment which is classified as a "tavern" by the state liquor control board except where they enter as professional entertainers under RCW 66.44.315.
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November 30, 1971
Honorable James A. McDermott
State Representative, 43rd District
1650 22nd Avenue East
Seattle, Washington 98102
Cite as: AGO 1971 No. 38
By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:
May persons between the ages of 18 and 21 years now enter an establishment which is classified as a "tavern" by the state liquor control board (during hours when this classification applies), in view of the recent enactment of chapter 292, Laws of 1971, 1st Ex. Sess.?
We answer this question in the negative subject to the single qualification set forth in our analysis.
The governing statute which dicates our negative answer to your question is RCW 66.44.310, which provides as follows:
"(1) It shall be a misdemeanor,
"(a) To serve or allow to remain on the premises of any tavern any person under [[Orig. Op. Page 2]] the age of twenty-one years;
"(b) For any person under the age of twenty-one years to enter or remain on the premises of any tavern;
"(c) For any person under the age of twenty-one years to represent his age as being twenty-one or more years for the purpose of securing admission to or remaining on the premises of any tavern.
"(2) The Washington state liquor control board shall have the power and it shall be its duty toclassify the various licensees, as taverns or otherwise, within the meaning of this title, except bona fide restaurants, dining rooms and cafes serving commercial food to the public shall not be classified astaverns during the hours such food service is made available to the public." (Emphasis supplied.)
Also to be noted is RCW 66.44.290 which provides that:
"Every person under the age of twenty-one years who purchases or attempts to purchase liquor shall be guilty of a violation of this title."
In paraphrasing your question, we have limited it to those establishments which are classified as taverns by the liquor control board, for it is important to note that the prohibition contained in RCW 66.44.310 only applies to such establishments; it does not cover all establishments which have been licensed under the liquor act to sell or serve intoxicating liquors. Moreover, in the case of those establishments "serving commercial food to the public" which are classified as taverns only during certain hours, the prohibition only applies during those hours.1/
[[Orig. Op. Page 3]] In 1969, by its enactment of § 1, chapter 250, Laws of 1969, Ex. Sess., the legislature established a single exception to this prohibition. This statute, now codified as RCW 66.44.315, provides as follows:
"Nothwithstanding the provisions of RCW 26.28.080 as now or hereafter amended, it is lawful for professional musicians, eighteen years of age and older, to enter and to remain in any premises licensed under the provisions of Title 66 RCW, but only during and in the course of their employment as musicians.
"This section shall not be construed as permitting the sale or distribution of any alcoholic beverages to any person under the age of twenty-one years."
RCW 26.28.080, to which reference was made in this 1969 act, then prohibited the admission of persons under twenty-one years of age to enter
". . . any concert saloon, or . . . any place . . . where intoxicating liquors are sold, given away or disposed of, except a restaurant or dining room . . ."
This statute has since been amended by § 37, chapter 292, Laws of 1971, 1st Ex. Sess., so as to reduce the age limit specified therein from twenty-one to eighteen. However, for reasons which we will now explain, neither this amendment nor anything else contained in this 1971 act alters the scope and effect of the statutory prohibition of RCW 66.44.310, supra, against entering or remaining in taverns on the part of persons under twenty-one years of age.
Chapter 292,supra, is a comprehensive amendatory act relating to age qualifications for certain purposes. By and large it amends most, but not all, of the preexisting statutes of this state which required persons to be twenty-one years of age in order to do various things ‑ reducing the specified age from twenty-one years to eighteen years. See, opinion dated August 9, 1971, to the Washington Horse Racing Commission, copy enclosed. However, as was specifically pointed out in this prior opinion, the one notable exception to these changes involves the purchasing of intoxicating liquor and the frequenting of taverns.
[[Orig. Op. Page 4]] This 1971 act originated as House Bill No. 309. As initially introduced it would have amended both RCW 66.44.290 and RCW 66.44.310,supra, so as to permit persons between eighteen and twenty-one years of age to (a) purchase beer and (b) enter and remain upon the premises of any "tavern" classified as such by the liquor control board. However, each of these proposed amendments, along with several other initial proposals to amend related "age qualification" sections of the liquor act, were deleted from the bill prior to final passage in the House. Therefore, the explicit provisions of RCW 66.44.310, supra, remain in effect today exactly as quoted at the beginning of this opinion ‑ prohibiting any person under the age of twenty-one years from entering or remaining on the premises of any tavern.2/
We next turn to the specific provisions of § 37, chapter 292, supra. As above indicated, this section amended RCW 26.28.080 to read as follows:
"Every person who:
"(1)Shall admit to or allow to remain in any concert saloon, or in any place owned, kept, or managed by him where intoxicating liquors are sold, given away or disposed of ‑-except a restaurant or dining room, any person under the age of ((
twenty-one)) eighteen years;
". . .
"Shall be guilty of a gross misdemeanor.
". . ." (Double emphasis ours.)
In considering the significance of this amendment, it is first to be noted that RCW 26.28.080 is not a part of the liquor act at all; instead, it is codified in Title 26 RCW dealing with domestic relations. Basically, it prohibits [[Orig. Op. Page 5]] certain conduct which is in the nature of contributing to the delinquency of a minor. Notably, however, it is not directed to the young person himself but rather to those other persons who allow him to remain in any of the places described.
The effect of the enactment of § 37, chapter 292, supra, then, was merely to modify the circumstances under which this "other person" could be charged with a gross misdemeanor for admitting certain young persons to his establishment. This was done by altering the class of persons covered by the act so as to reduce the governing age from twenty-one to eighteen years. However, the point which must be understood is that this amendment did not, in any way whatsoever, change the minimum legal age for admission of young people to those licensed establishments selling intoxicating liquor which have been classified as taverns by the liquor control board. In point of fact neither RCW 26.28.080 nor the amendment to it use the term "tavern" at all.3/
Furthermore, it is interesting to note that although § 37, supra, amending RCW 26.28.080, did remain in House Bill No. 309 as finally enacted ‑ unlike the sections of the original bill which would have amended the age qualification section of the liquor act itself ‑ subsection (4) of this section was substantially altered between the time of its original introduction and final enactment. Quoting only its material portions, this section of the original bill would have amended RCW 26.28.080 so as to provide that:
"Every person who:
". . .
"(4) Shall sell or give, or permit to be sold or given to any person under the age of twenty-one years any intoxicating [[Orig. Op. Page 6]] liquor, other than beer, or to any person under the age of eighteen years any beer, cigar, cigarette, cigarette paper or wrapper, or tobacco in any form; or
". . .
"Shall be guilty of a gross misdemeanor.
". . ." (Amendatory language underscored.)
However, before final passage in the House this proposal was changed so as to strike the amendatory language in its entirety. Thereafter, when the bill reached the Senate this subsection was again amended so as to reinsert the phrase "or to any person under the age of eighteen years" ‑ but only with regard to sales of tobacco products and not as to sales of any form of intoxicating liquor.4/
Accordingly, in summary, based upon the legislative history of chapter 292, supra, it is clearly to be seen that the legislature, while reviewing all of the preexisting statutes establishing "twenty-one year" age qualifications, considered and rejected any alteration of the statutes in the liquor act pertaining to persons under this age. Additionally, it considered and rejected a proposed amendment which was designed to carve out an exception in the case of beer to RCW 26.28.080's preexisting prohibition against the sale of any intoxicating liquor to persons under that specified age.
Therefore, in conclusion, it is our opinion that, with the single exception provided for in RCW 66.44.315, supra, a person between the ages of eighteen and twenty-one years must still be regarded as being prohibited from entering a [[Orig. Op. Page 7]] licensed establishment classified as a tavern, notwithstanding the enactment of chapter 292,supra. Should the legislature, however, wish to change this result by enacting further amendatory legislation such as was contained in the original version of House Bill No. 309, it is most certainly free to do so at its next session.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN G. HENNEN
Assistant Attorney General
*** FOOTNOTES ***
1/However, it should also be understood that the tavern classification currently applies not only to the traditional beer tavern which is only licensed to sell beer and wine but, as well, to the "cocktail lounge" portion of licensed restaurants and to some parts of other establishments which sell intoxicating liquor.
2/Subject to the above‑noted exception in the case of professional musicians as proveded for in RCW 66.44.315, supra.
3/RCW 26.28.080 as amended does refer to a "concert saloon," a term which is neither defined nor used anywhere else in the Revised Code of Washington. There is no such thing under the liquor act as a "concert saloon" class of license, and consequently, there exists no such license issued to any such designated premises anywhere in the state.
4/Subsection (4) as thus amended and finally enacted, speaks in terms of any person who shall "sell or give, or permit to be sold or given to any person under the age of twenty-one years any intoxicating liquor, or to any person under the age of eighteen years any cigar, cigarette, cigarette paper or wrapper, or tobacco in any form."