AGLO 1974 No. 67 - Jul 9 1974
CITIES AND TOWNS ‑- LIQUOR ‑- OFFICES AND OFFICERS ‑- STATE ‑- LIQUOR LIQUOR CONTROL BOARD ‑- ISSUANCE OF RETAIL LIQUOR LICENSE TO CITIES AND TOWNS
(1) Assuming that all of its officers are United States citizens, an incorporated city or town may be issued a retail liquor license by the state liquor control board under the provisions of RCW 66.24.010.
(2) The liquor control board, acting through its enforcement officers and subject to the applicable provisions of the Administrative Procedures Act, may enforce the liquor act and related regulations in the case of violations thereof by an incorporated city or town as licensee.
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July 9, 1974
Honorable Jack C. Hood
Chairman, Washington State
Liquor Control Board
General Administration Building
Olympia, Washington 98504 Cite as: AGLO 1974 No. 67
By letter previously acknowledged you have requested an opinion of this office on certain questions which we have combined and paraphrased as follows:
(1) Is the Washington state liquor control board authorized under applicable provisions of state law and the state Constitution to issue a retail liquor license to an incorporated city or town; e.g., the City of Mountlake Terrace?
(2) Can the Washington state liquor control board enforce the liquor act and/or the revised rules and regulations of the board in the case of violations thereof committed by a city such as Mountlake Terrace as a licensee?
We answer the first of these questions in the qualified affirmative for the reasons set forth in the following analysis, and the second as explained therein.
By way of background you have advised us that the underlying factual basis for your request is a pending application by the City of Mountlake Terrace, a noncharter code city, for a class "D" beer retailer's license (opened bottle for on-premise consumption ‑ RCW 66.24.350) to be utilized in connection with its operation of a long-established public golf course, the ownership of which was recently acquired by that city. For the general authority of all classes of cities to own and operate golf courses and similar recreational facilities see RCW 35.21.020 which provides as follows:
"Any city or town in this state acting through its council or other legislative body, and any separately organized park district acting through its board of park commissioners or other governing officers, shall have power to acquire by donation, purchase or condemnation, and to construct and maintain public auditoriums, art museums, swimming pools, and athletic and recreational [[Orig. Op. Page 2]] fields, including golf courses, buildings and facilities within or without its parks, and to use or let the same for such public and private purposes for such compensation and rental and upon such conditions as its council or other legislative body or board of park commissioners shall from time to time prescribe."
Without question, this authorization is applicable to a city operating under the optional municipal code (Title 35A RCW) in accordance with the principles enumerated in AGO 1974 No. 2 [[to the Municipal Research Council on January 18, 1974]], copy enclosed.
The basic statute governing the "persons" who are eligible for retail liquor licenses in this state, at the discretion of the liquor control board, is RCW 66.24.010 which provides that:
"(1) Every license shall be issued in the name of the applicant and the holder thereof shall not allow any other person to use the license.
"(2) For the purpose of considering any application for a license, the board may cause an inspection of the premises to be made, and may inquire into all matters in connection with the construction and operation of the premises. The board may, in its discretion, grant or refuse the license applied for. No retail license of any kind shall be issued to:
"(a) A person who is not a citizen of the United States, except when the privilege is granted by treaty;
"(b) A person who has not resided in the state for at least one month prior to making application, except in cases of licenses issued to dining places on railroads, boats, or aircraft;
"(c) A person who has been convicted of a felony within five years prior to filing his application;
"(d) A copartnership, unless all of the members thereof are qualified to obtain a license, as provided in this section;
[[Orig. Op. Page 3]]
"(e) A person whose place of business is conducted by a manager or agent, unless such manager or agent possesses the same qualifications required of the licensee;
"(f) A corporation, unless all of the officers thereof are citizens of the United States."
The term "person," as defined in another section of the liquor act (RCW 66.04.010(21)), means:
". . . an individual, copartnership, association, or corporation." (Emphasis supplied.)
This definition, coupled with the use of the word "person" in RCW 66.24.010, supra, leads us to the conclusion that the legislature intended every type of corporation (i.e., profit, nonprofit, municipal, etc.) to be included within the class of potential licensees ‑ assuming that all of its officers are United States citizens as required by subsection (2)(f) of that statute, supra. From this it follows that the liquor control board has the authority, in its discretion, to grant a retail liquor license to an incorporated city or town, or other municipal corporation, for use by it in connection with its conduct of a legally permissible enterprise such as, in the case giving rise to your request, a municipal golf course, unless prohibited by some other state statute or constitutional provision from doing so.
Our research has disclosed no general prohibition in the liquor act (Title 66 RCW) or in any other such law against either (a) the issuance of a liquor license to a city or town or (b) the receipt and use of that license by such a municipal corporation ‑ again assuming that all of its officers are United States citizens and that the license is to be used in connection with a legally permissible municipal enterprise or activity. There are, however, two sections of the liquor act which arguably contain indications of implied legislative intent bearing on this question which must be explored in the context of your initial question.
The first of these is RCW 66.24.010(8), contained in the general licensing statute, which provides for participation in the licensing process by the city, town or county having jurisdiction over the location of the proposed licensed premises. Insofar as is here material, this statute provides that:
[[Orig. Op. Page 4]]
"(8) Before the board shall issue a license to an applicant it shall give notice of such application to the chief executive officer of the incorporated city or town, if the application be for a license within an incorporated city or town, or to the board of county commissioners, if the application be for a license outside the boundaries of incorporated cities or towns; and such incorporated city or town, through the official or employee selected by it, or the board of county commissioners or the official or employee, selected by it, shall have the right to file with the board within twenty days after date of transmittal of such notice, written objections against the applicant or against the premises for which the license is asked, and shall include with such objections a statement of all facts upon which such objections are based, and in case written objections are filed, may request and the liquor control board may in its discretion hold a formal hearing subject to the applicable provisions of chapter 34.04 RCW, as now or hereafter amended. Upon the granting of a license under this title the board shall cause a duplicate of the license to be transmitted to the chief executive officer of the incorporated city or town in which the license is granted, or to the board of county commissioners if the license is granted outside the boundaries of incorporated cities or towns."
To conclude, however, that this participation in the licensing process by a city, town or county places it in the position of approving or denying its own application for a license if it is the applicant is not warranted, for the net effect of this statute is merely to provide that the local authorities mentioned may submit protests (or endorsements) which will be given consideration by the liquor control board when a decision is made regarding issuance of the license. In other words, the approval of the city, town or county does not, by itself, mean that a license to sell liquor within its boundaries will be issued; and, conversely, its disapproval is not binding on the board. Both approval and disapproval are merely advisory to the board, which then considers all the facts and circumstances involved and, in the exercise of its discretion, decides whether the license applied for should be issued. Historically, [[Orig. Op. Page 5]] the liquor board has denied some applications which had the approval of the local authorities, and approved some applications where the local authorities had expressed their disapproval. Accordingly, we believe it to be too strained an interpretation to say that the legislature did not intend a city or town to be licensed merely because it wished those municipalities, along with counties, to be allowed to comment on applications for retail liquor licenses within their respective jurisdictions. If the legislature had wished to exclude such municipal corporations from the class of potential licensees, it would have been a simple matter for it to have done so by merely adding a very few words to either RCW 66.44.010(2) or (8), supra.
The second statute to be examined as possibly containing a prohibition against granting a liquor license to an incorporated city or town is RCW 66.44.010, which provides as follows:
"(1) All county and municipal peace officers are hereby charged with the duty of investigating and prosecuting all violations of this title, and the penal laws of this state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor, and all fines imposed for violations of this title and the penal laws of this state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor shall belong to the county, city or town wherein the court imposing the fine is located, and shall be placed in the general fund for payment of the salaries of those engaged in the enforcement of the provisions of this title and the penal laws of this state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor: Provided, That all fees, fines, forfeitures and penalties collected or assessed by a justice court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended.
"(2) In addition to any and all other powers granted, the board shall have the power to enforce the penal provisions of this title and the penal laws of this state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor. The [[Orig. Op. Page 6]] board may appoint and employ, assign to duty and fix the compensation of, officers to be designated as liquor enforcement officers. Such liquor enforcement officers shall have the power, under the supervision of the board, to enforce the penal provisions of this title and the penal laws of this state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor. They shall have the power and authority to serve and execute all warrants and process of law issued by the courts in enforcing the penal provisions of this title or of any penal law of this state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor. They shall have the power to arrest without a warrant any person or persons found in the act of violating any of the penal provisions of this title or of any penal law of this state relating to the manufacture, importation, transportation, possession, distribution and sale of liquor."
Under this statute all county and municipal peace officers are charged with the duty of investigating and prosecuting violations relating to liquor. Had the legislature left all enforcement in the hands of local authorities it would have been possible to argue that the licensing of a municipal corporation (e.g., the City of Mountlake Terrace) would create a conflict of interest by requiring the municipal corporation to enforce the law, through its municipal peace officers, against itself as a licensee. However, the legislature, by the same statute, also charged the liquor control board with the enforcement of the liquor act and other penal laws relating to liquor and provided for the effectuation of this enforcement by creating the liquor enforcement officer to act as agent for, and under the supervision of, the board. If anything can be inferred from the creation of the liquor enforcement officer, it would seem to be that the legislature felt there were some situations where local law enforcement alone would not be sufficient or adequate. The City of Mountlake Terrace, as a licensee, would be such a situation. However, it would appear that when Mountlake Terrace's local law enforcement is supplemented by the liquor control board's own enforcement machinery, adequate control would be assured.
[[Orig. Op. Page 7]]
This leads us to your second question relative to enforcement.
Enforcement by the liquor control board against a city such as Mountlake Terrace, as a licensee, could take the form of suspending or cancelling the retail liquor license involved. (Ref. RCW 66.24.010(3) and (4).) The suspension or cancellation of a license held by a municipal corporation would encompass the same procedural requirements as the suspension or cancellation of a license issued to any other entity; that is, the Administrative Procedures Act (RCW 34.04.010, et seq.) and RCW 66.08.150 would apply.
Our research discloses nothing in state law or the state Constitution which would prevent a city such as Mountlake Terrace from being subject to the state liquor act and the rules and regulations of the board. On the contrary, RCW 66.08.120, preempting the liquor licensing field to the state, would seem to evidence a legislative intent that state law (and hence state law enforcement) was to prevail at all times over that of local jurisdiction in matters related to liquor.
On the basis of the foregoing it is, therefore, the opinion of this office that the liquor control board is authorized under the current state of the law and the factual circumstances above outlined to issue a retail liquor license to an incorporated city or town such as Mountlake Terrace. Should violations of the liquor act or the rules and regulations of the board occur at the licensed premises of the city licensee, the board acting by and through its liquor enforcement officers and subject to the applicable provisions of the Administrative Procedures Act, could institute enforcement proceedings against the city licensee to the same extent as any other licensee. This enforcement could take the form of suspension or cancellation of the retail liquor license.
We trust the foregoing will be of some assistance to you.
Very truly yours,
JOHN G. HENNEN
Assistant Attorney General