AGO 1949 No. 149 - Oct 28 1949
INTOXICATING LIQUOR -- SALE OF "STRONG BEER" BY CLASS H LICENSEES
Class H licensees may sell "strong beer" and ale over four per cent alcohol by weight, and are entitled to purchase same from the Liquor Board at discount not less than fifteen per cent from retail price fixed by board.
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October 28, 1949
Washington State Liquor Control Board
Washington Cite as: AGO 49-51 No. 149
Attention: !ttC. B. Lafromboise
Member of Board
You have asked us the following questions:
(1) "May Class H licensees legally sell ale, stout, and porter if they contain more than four per cent of alcohol by weight.
(2) "If such sales are permissible, are the licensees entitled to purchase such items from the Liquor Control Board at a discount of not less than fifteen per cent from the retail price fixed by the Board?"
The conclusions which we have reached may be summarized as follows:
(1) Class H licensees may sell by the individual glass ale, stout and porter containing more than four per cent of alcohol by weight.
(2) Class H licensees are entitled to purchase such liquor from the Liquor Control Board at a discount of not less than fifteen per cent from the retail price fixed by said Board.
The Class H license referred to was created by virtue of Chapter 5, Laws of 1949 (Initiative No. 171), which amended the Washington State Liquor Act, being [[Orig. Op. Page 2]] Chapter 62, Laws of 1933, Ex. Sess., as amended (Rem. Rev. Stat. Supp. 7306-1 et seq.), and the following statutes are pertinent to a consideration of your questions:
Section 1 of Chapter 5, Laws of 1949, provides in part as follows:
"There shall be a retailer's license, to be known and designated as Class H license, to sell beer, wine and spirituous liquor by the individual glass, and beer and wine by the opened bottle, at retail, for consumption on the premises, * * *." (Underscoring ours.)
Section 2, Chapter 5, Laws of 1949, defines "spirituous liquor" as meaning "liquor" as that term is defined in section 3, Chapter 62, Laws of 1933, Ex. Sess. [Rem. Rev. Stat. Supp. Sec. 7306-3], except "wine" and "beer" sold as such. Section 2, supra, also specifies that the word "beer" means "beer" as defined in section 7306-3.
Section 5, Chapter 5, Laws of 1949, reads as follows:
"Each Class H Licensee shall be entitled to purchase any spirituous liquor items saleable under such Class H license from the board at a discount of not less than fifteen per cent (15%) from the retail price fixed by the board, together with all taxes."
It becomes apparent that the manner in which the above terms are defined in section 7306-3,supra, is material to a determination of your inquiry. In said section we find the following definitions given:
"'Liquor' includes the four (4) varieties of liquor herein defined (alcohol, spirits, wine and beer), and all fermented, spirituous, vinous, ormalt liquor, or combinations thereof, and mixed liquor, a part of which is fermented, spirituous, vinous or malt liquor, or otherwise intoxicating; * * *." (Underscoring ours.)
"'Beer' means any beverage obtained by the alcoholic fermentation of an infusion or decoction of pure hops, or pure extract of hops and pure barley malt or other wholesome grain or cereal in pure water containing not more than four per cent (4%) of alcohol by weight, and not less than one half of one per cent (1/2 of 1%) of alcohol by volume. For the purposes of this act any such beverage, including ale, stout and porter, containing more than four per cent (4%) of alcohol by weight shall be referred to as 'strong beer.'"
[[Orig. Op. Page 3]]
It will be noted that the term "malt liquor" is further defined as meaning "beer, strong beer, ale, stout and porter.
The Attorney General, in an opinion written for the Liquor Control Board on February 5, 1936, recognized that a distinction had been made between the terms "beer" and "strong beer" and that the legislature had given such beverages separate classifications. It was concluded that it would not be permissible for the holders of beer retailer's licenses Classes A, B, D and E to sell "strong beer."
The rule is universal that when a statute is plain, clear upon its face and free from ambiguity it must be accepted to mean exactly what it says. In other words, there is no room or occasion for construction. Ernst v. Kootros, 196 Wash. 138; Shelton Hotel Co., Inc. v. Bates, 4 Wn. (2d) 498; State ex Rel. Wash. Etc. Bank v. Bellingham, 8 Wn. (2d) 233;Roth v. Nash, 19 Wn. (2d) 731; Martin v. Tollefson, 24 Wn. (2d) 211.
In the instant situation, the statutes are devoid of uncertainty and there is nothing to construe inasmuch as the relevant terms have been specifically defined. Under the definition applied to "spirituous liquor" as used in the initiative, strong beer, such as ale, stout and porter, containing more than four per cent of alcohol by weight, comes within that category. Accordingly, the holders of Class H licenses are authorized to sell the same by the individual glass and in purchasing such items for resale are entitled to the discount provided in section 5 of Chapter 5, Laws of 1949.
Very truly yours,
JOSEPH P. LAVIN
Assistant Attorney General