AGO 1979 No. 16 - Aug 27 1979
INTOXICATING LIQUOR ‑- MINORS ‑- PARENT AND CHILD ‑- PARENTAL CONSENT TO THE CONSUMPTION OF LIQUOR BY CHILDREN
Consideration and discussion of the extent to which parental consent, or the consent of a legal guardian, to the supplying of intoxicating liquor to a person under the age of 21 years will constitute a legal defense to a charge of unlawful dissemination, possession or consumption under RCW 66.44.270.
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August 27, 1979
Honorable Jim McDermott
State Senator, 43rd District
1650 22nd Avenue East
Seattle, Washington 98112
Cite as: AGO 1979 No. 16
By recent letter you requested our opinion on the following question:
"Does RCW 66.44.270 . . . lawfully allow a parent or guardian to either verbally or in writing permit another person, over 21 years of age, to give liquor to the parent's or guardian's minor child?"
We answer this question qualifiedly in the affirmative as set forth in our analysis.
RCW 66.44.270 is one of several sections of the state liquor code dealing with the furnishing of liquor to persons under 21 years of age. This section reads, in material part, as follows:
[[Orig. Op. Page 2]]
"Except in the case of liquor given or permitted to be given to a person under the age of twenty-one years by his parent or guardian for beverage or medicinal purposes, or administered to him by his physician or dentist for medicinal purposes, no person shall give, or otherwise supply liquor to any person under the age of twenty-one years, or permit any person under that age to consume liquor on his premises or on any premises under his control. It is unlawful for any person under the age of twenty-one years to acquire or have in his possession or consume any liquor except as in this section provided and except when such liquor is being used in connection with religious services.
". . ." (Emphasis supplied.)
As we understand the thrust of your question, the narrow issue raised is whether this statute means that parental permission (or the permission of a legal guardian) will constitute a legal defense to the criminal charge,1/ lodged against some other person over 21 years of age, of unlawfully giving liquor to a minor child of (or in the custody of) the consenting parent or guardian. We answer in the affirmative but with a significant qualification.
In summary, what RCW 66.44.270, supra, does is to prohibit, with certain stated exceptions,
(a) Any person from giving, or otherwise supplying liquor to, any person under the age of 21 years;
(b) Any person from permitting an individual under that age to consume liquor on his premises or on any premises under his control; and
(c) A person under the age of 21 years from acquiring, or having in his possession, or consuming, any liquor.
The stated exceptions to the foregoing prohibitions, in turn, involve the following:
[[Orig. Op. Page 3]]
(a) The administration of liquor to a person under 21 years of age ". . . by his physician or dentist for medicinal purposes;" and
(b) The furnishing of liquor to a person under 21 years of age when ". . . given or permitted to be given to [such] person . . . by his parent or guardian for beverage or medicinal purposes."
Thus, under the second of these two stated exceptions, it will be seen that even though the person actually furnishing liquor to an individual under 21 years of age is not, himself (or herself) the parent or guardian of that individual, neither the act of delivery nor the recipient's resulting possession and consumption will be unlawfulunder RCW 66.44.270 if "permitted" by the parent or guardian of the recipient. Moreover, in that regard, the statute makes no distinction between verbal or written permission.2/
There are, however, two very important caveats to be noted in connection with this answer to your question. The first involves an important qualification and the second is, in essence, a disclaimer as to the scope of our opinion.
To begin with, our answer must be qualified, not as to the form in which a legally significant permission is to be granted (i.e., verbal or written) but, instead, from the standpoint of its narrowness or breadth. While no Washington cases in point exist our research has disclosed that other courts, in construing similar statutory language, have uniformly concluded that the parental consent must be (1) special for each occasion and applicable to the one occasion only and (2) repeated separately for each subsequent occasion. Therefore, once acted upon, the consent or permission is exhausted and constitutes no more authority for subsequent activities than if it had never existed. See,Gill v. State, 86 Ga. 751, 13 S.E. 86 (1891), supra; see also,Pressly v. State, 114 Tenn. 534, 86 S.W. 378 (1905); and 45 Am. Jur. 2d, Intoxicating Liquors, § 270. As stated by the Georgia Court in the First of these cases, at pages 752-3:
[[Orig. Op. Page 4]]
". . . This statute is a police regulation, and has regard, not alone to the will and wishes of parents and guardians over the conduct of children, but chiefly to the wholesome restraint and discipline of minors as immature members of society. It relies upon parental discretion, and intends that that discretion shall be exercised by the parent or guardian and not delegated to the child. It has no thought of empowering the parent to make the child the judge of its own needs for intoxicating liquors, without limitation as to time or quantity. On the contrary, the foundation principle of the law is, that the minor's discretion is not to be trusted. . . . A parental decision not founded on the circumstances of any particular occasion, but applicable alike to all occasions, and measuring the supply of liquors to be furnished by nothing but the desires and appetites of the child, is simply an effort to repeal he law pro tanto. . . . Consistently with the policy of the law, there can be no general authority by the parent conferred upon any one to furnish liquors at his own pleasure or the pleasure of the child. The parent must hold control of the supply, both as to time and quantity, and the written authority must be special, as contradistinguished from general. It must be applicable to one occasion only, and must be repeated separately for each subsequent occasion. Once acted on, it is exhausted, and is no more authority for subsequent supplies than if it had never existed. Parental license to run indefinitely would, if granted by a sufficient number of rash and inconsiderate fathers, enable one or more drinking saloons in large cities to flourish on the patronage of minors alone. . . ."
In addition, having so responded to your question we should add, and emphasize, that we are here only dealing with the significance of parental (or guardian) permission in the [[Orig. Op. Page 5]] case of a criminal charge lodged under this one particular section of the liquor code. As above noted, however, RCW 66.44.270,supra, is only one of several sections of the code dealing with the furnishing of liquor to persons under 21 years of age. And under none of those other statutes is parental consent or permission of any legal significance whatsoever.
Thus, for example, RCW 66.44.290 unqualifiedly 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."
And likewise, RCW 66.44.320 states that:
"Every person who shall sell any intoxicating liquor to any minor shall be guilty of a violation of Title 66 RCW."
A third unqualified statutory provision will be found in RCW 66.44.300 as follows:
"Any person who invites a minor into a public place where liquor is sold and treats, gives or purchases liquor for such minor, or permits a minor to treat, give or purchase liquor for him; or holds out such minor to be over the age of twenty-one years to the owner of the liquor establishment shall be guilty of a misdemeanor."
A further statute to be noted is RCW 66.44.310(1), which relates to the presence of persons under the age of 21 years in taverns and reads as follows:
"(1) It shall be a misdemeanor,
"(a) To serve or allow to remain on the premises of any tavern any person under 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;
[[Orig. Op. Page 6]]
"(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.
". . ."3/
And Finally, note should also be made of RCW 66.44.100 unqualifiedly prohibiting any person from opening a package containing liquor or consuming liquor in a public place except as otherwise permitted by the liquor laws.
What must be understood is that your specific question involves none of these "other" statutory prohibitions. Specifically, it involves neither the sale of liquor to a person under 21 years of age nor the purchase of liquor by such an individual. Nor does it involve the matter of treating, giving to, or purchasing liquor for a person under 21 years of age who has been invited into a public place where liquor is sold. And lastly, it does not involve the presence of a person under 21 years of age in a tavern. Instead, once again, the narrow question presented relates only to the act of giving liquor to a person under 21 years of age at (or in) some place other than a tavern or other licensed liquor establishment, or public place‑-with either the verbal or written permission of the recipient's parent or guardian. And, as a corollary, it also involves the lawfulness of the recipient's possession and consumption of liquor under the same circumstances; e.g., within the family home, at the home of friends of the family or elsewhere at some place other than a tavern or other licensed [[Orig. Op. Page 7]] retail liquor establishment or public place. It is that specific question only which, as above noted, we here answer in the qualified affirmative on the basis of the above‑quoted and discussed exception to the particular prohibitions contained in the statute cited in your request, RCW 66.44.270, supra.
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
ARTHUR F. MICKEY
Assistant Attorney General
*** FOOTNOTES ***
1/See RCW 66.44.180; cf., RCW 9A.04.040.
2/In this respect RCW 66.44.270 differs from the statute involved in Gill v. State, 86 Ga. 751, 13 S.E. 86 (1891), noted below.
3/This last quoted statute, however, is now qualified by RCW 66.44.315 and 66.44.316, the effect of which is to make it lawful for professional musicians who are 18 years of age or older to enter taverns or other licensed premises ". . . during and in the course of their employment as musicians." It is also worth noting that neither of these last cited statutes permits ". . . the sale or distribution of any alcoholic beverages to any person under the age of 21 years." Nor do RCW 66.44.340 and 66.44.350 in permitting persons between the ages of 18 and 21 years to be employed for the purpose of selling or serving liquor in various categories of licensed establishments.