AGLO 1982 No. 11 - May 3 1982
OFFICES AND OFFICERS ‑- STATE ‑- LIQUOR CONTROL BOARD ‑- INTOXICATING LIQUOR ‑- SALE OF CONFISCATED LIQUOR IN STATE LIQUOR STORES
The Washington State Liquor Board may sell, through state liquor stores and agencies, unopened liquor which has been lawfully confiscated by the Board or by other governmental agencies.
- - - - - - - - - - - - -
May 3, 1982
Honorable Robert D. Hannah
Liquor Control Board
Capitol Plaza Building
Olympia, Washington 98504 Cite as: AGLO 1982 No. 11
By letter previously acknowledged, you requested1/our opinion on the following question:
"Does the Washington State Liquor Control Board have the statutory authority to sell, from state liquor stores and agencies, unopened liquor which has been lawfully confiscated by the Board or other governmental agencies?"
We answer the foregoing question in the affirmative for the reasons set forth in our analysis.
In answering your question, we will, of necessity, make certain factual assumptions. First, we will assume that the Liquor Control Board acquired the particular confiscated liquor through appropriate legal process or through purchase.2/ And second, we [[Orig. Op. Page 2]] will also assume that the confiscated liquor, being unopened, is in essentially the same condition with regard to manufacturer's seals and governmental stamps as is all other liquor normally sold by the Board.
It is fundamental that an administrative agency, such as the Liquor Control Board, has only those powers expressly granted by statute or necessarily implied therefrom. Ortblad v. State, 85 Wn.2d 109, 530 P.2d 635 (1975). However, while the Board is limited in its powers to those which have been thus granted by the legislature, the courts have recognized that an agency may "fill in the gaps" where necessary in the effectuation of a general statutory scheme. Hama Hama v. Shorelines Hearings Board, 85 Wn.2d 441, 536 P.2d 157 (1975). Also, where power is given to an administrative agency and no express provision is made as to the manner of its exercise, that which is lawful and necessary to affect the execution of the power is implied. State ex rel. Puget Sound Navigation Co. v. Department of Transportation, 33 Wn.2d 448, 206 P.2d 456 (1949).
The statutes governing the Liquor Control Board are contained in Title 66 RCW, commonly known as the Liquor Act. The answer to your question thus requires an examination of the provisions of the Act, among which are two statutes (as above footnoted) by which the legislature has explicitly directed that confiscated liquor be forfeited and delivered to the Board under certain circumstances. See, RCW 66.32.040 and 66.32.090,supra.
It is true that the legislature has, in turn, enacted no specific statutory language instructing the Board as to how it may then dispose of such confiscated liquor. Given the principles outlined above, however, we think it logical to conclude that the legislature intended that the Board be able to dispose of such confiscated liquor by any reasonable means, including sale at retail if the circumstances warrant it.
We also note, in general, that the power of control, management and supervision of state liquor stores has been expressly vested in the Board by RCW 66.08.020. The statutory authority to sell "liquor" in those stores, and through those [[Orig. Op. Page 3]] agencies, has been expressly granted to the Board in RCW 66.16.010(1) and RCW 66.16.040. No distinction is to be gleaned from those statutes, however‑-or from any other provisions of the Liquor act‑-between "confiscated" liquor and such liquor as is acquired by the Board through its normal purchase channels from distillers, wineries or breweries. In short, while the legislature has granted the Board the express authority to sell liquor, there is no statutorily specified source, to the exclusion of any others, from which the Board must obtain liquor for sale. Likewise, in terms of the definition of "liquor" which is to be found in RCW 66.04.010(15), there is no distinction from the standpoint of the source, or means of acquisition, of the particular item. It thus follows that whether an item is confiscated, or not, has no bearing on its status as "liquor."
Therefore, in direct answer to your question, it is our opinion that the Washington State Liquor Control Board does have the statutory authority to sell, through state liquor stores and agencies, unopened liquor which has been lawfully confiscated by the Board‑-or by other governmental agencies and then sold to the Board.3/
In so advising you, however, we should add the following caveat. By thus answering your question in the affirmative we do not mean to infer that the Board isrequired to sell such liquor in every instance. Instead, the question is one involving the sound exercise of discretion, by the Board, ever mindful of the legislative directive in RCW 66.08.010 that the entire Liquor Act was intended to be for the protection of the welfare, health, peace, morals and safety of the people. For that reason4/ the [[Orig. Op. Page 4]] Board should first make a determination that the particular confiscated liquor (like any liquor which it proposes to sell) is not adulterated or otherwise unsafe‑-before placing it for sale in its liquor stores or agencies.5/
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
JOHN G. HENNEN
Assistant Attorney General
*** FOOTNOTES ***
1/At the suggestion of the State Auditor.
2/Liquor may be confiscated pursuant to a search warrant under RCW 66.32.020 by the Board's own agents or other law enforcement personnel. Upon adjudication that the confiscated liquor was kept in violation of law, the liquor is forfeited and must be delivered to the Board. See, RCW 66.32.040 and 66.32.090. In addition, other governmental agencies (such as the State Department of Revenue or the Federal Internal Revenue Service) may acquire liquor in the course of tax foreclosure or other related proceedings. The Board may then purchase that confiscated liquor from those agencies. Cf., RCW 66.08.050(6) and (9).
3/A fortiori, the statute conferring power on the Board in general, RCW 66.08.050, after conferring power to act in a number of specified areas, gives the Board general power to:
". . .
"(9) performall other matters and things, whether similar to the foregoing or not, to carry out the provisions of this title, and shall have full power to do each and every act necessary to the conduct of its business, including all buying, selling, preparation and approval of forms, and every other function of the business whatsoever, subject only to audit by the state auditor." (Emphasis supplied)
4/And, as well, because of the possibility of damage claims from injured purchasers. See, RCW 4.92.090.
5/It should also be noted that the assessment of the potential for harm from sale of any particular liquor (and consequent potential for damage claims) is not strictly a legal determination but is, instead, a business determination within the expertise of the Board. In the case of confiscated liquor, however, the Board should be aware that the possibility of a recovery over against the manufacturer, in the case of a successful damage claim against the State, would be substantially less than where the liquor giving rise to the claim was purchased through normal channels.