COMMISSION MERCHANTS ACT ‑- LICENSING OF ROADSIDE FRUIT STANDS

COMMISSION MERCHANTS ACT ‑- LICENSING OF ROADSIDE FRUIT STANDS

Commission Merchants Act.  Retail Merchants.  Permanent roadside fruit stands doing business for three or four months of year not excluded from licensing provisions of this act.

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                                                                 October 4, 1957

Honorable Joe Dwyer, Director
Department of Agriculture
General Administration Building
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 124

Dear Sir:

            You have requested an opinion of this office on the following question:

            "Are roadside fruit and vegetable stands, having permanent buildings, but where business is carried on for only three or four months out of the year, subject to licensing under the Commission Merchants Act?"

            Our answer is in the affirmative.

                                                                     ANALYSIS

            The 1955 session of the legislature amended and recodified the Washington Commission Merchants Act.

            Section RCW 20.08.010 of that act now provides as follows:

            "On and after June 8, 1939, no person shall receive or purchase within this state, sell or offer for sale within this state, promote the sale of, or solicit consignments for sale on commission within  [[Orig. Op. Page 2]] this state, or for the purpose of resale or processing within this state, any agricultural product without a license as provided in this title."

            RCW 20.04.040 provides that:

            "'Agricultural product' includes any horticultural, viticultural, berry, poultry, grain, livestock, bee or other farm product."

            It should be noted that the above definition includes products that are not necessarily seasonal or perishable in nature, as are many fruits and vegetables.  Many of these products are to be found in our normal market outlets the year round, including even some fruits and vegetables, such as carrots, onions, squash, turnips, rutabagas, potatoes, cabbage, apples, pears and nuts.

            Originally the act applied only to those persons actually buying on commission, but applies now as well to credit buyers and cash buyers.

            RCW 20.04.050 defines "commission merchant and credit buyer" as follows:

            "'Commission merchant and credit buyer' includes any person who receives any agricultural product to be sold on commission, or for or on behalf of another with or without compensation, or who purchases or receives any agricultural product and who fails to pay in full for it at the time of receiving it or at the time its value may be determined, or who may contract with growers in such manner that the grower accepts seed as bailee and agrees to return the crop grown from such seed, the grower to be paid for services rendered in producing the crop."

            RCW 20.04.060 defines a "cash buyer" as follows:

            "'Cash buyer' includes any person who purchases or offers to purchase any agricultural product for the purpose of processing or resale and who pays in full, in cash or by check that shall be paid on presentation, for such agricultural product at the time of receiving it or at the time the price of the agricultural product may be determined if the price or value is subject to determination by inspection, grade, test, or pack out."

            In addition to the two main categories of activity as defined above, the act also  [[Orig. Op. Page 3]] defines a "broker" in RCW 20.04.110, and RCW 20.08.080 provides for a broker's license for a two dollar fee as opposed to the $25.00 fee for commission merchants and credit buyers and cash buyers.  Under RCW 20.08.070 an agent in the employ of a licensed commission merchant and credit buyer or cash buyer may obtain a license also for a fee of $2.00.

            From the foregoing it is apparent that the Commission Merchant Act is quite broad in scope with respect to those persons required to be licensed.  However, certain persons are excluded from the provisions of the Commission Merchant Act, as provided in RCW 20.04.120, which reads:

            "The provisions of this title shall not apply to any person who sells exclusively his own produce as the producer thereof, nor to any retail merchant as defined herein, . . ."  (Emphasis supplied.)

            RCW 20.04.100 provides:

            "'Retail merchant' means any person operating from a bona fide fixed or permanent location at which place all of the retail business of such person is transacted, and whose business is exclusively retail except for the occasional wholesaling of small quantities of surplus commodities which have been taken in exchange for merchandise from the producers thereof at the bona fide fixed or permanent location."  (Emphasis supplied.)

            RCW 20.04.090 provides:

            "'Bona fide fixed or permanent location' means any permanent warehouse, building, or structure,at which a permanent business is carried on as such throughout the year in good faith and not for the purpose of evading this title, and at which stocks of the property being transported are produced, stored, or kept in quantities reasonably adequate for, and usually carried for the requirements of the business.  It shall not mean residences or premises or buildings appurtenant thereto, tents, temporary stands or other temporary quarters, nor permanent quarters occupied pursuant to any temporary arrangement."  (Emphasis supplied.)

            Our concern here is with the retail merchant exclusion as set forth in the foregoing sections.  The roadside stands involved have permanent buildings and, therefore, meet one of the requisites of a "bona fide fixed or permanent location" as defined by the statute.  The question to be resolved is whether or  [[Orig. Op. Page 4]] not such seasonal produce stand may be exempted as a "permanent business" "carried on as such throughout the year."  You have advised us that the fruit stands in question remain open only for three or four months and are closed during the fall, winter and spring.

            One of the general principles of statutory construction is that the legislative intent must be ascertained by giving words of a statute their generally accepted meaning in the absence of anything in the statute to the contrary.  Featherstone v. Dessert, 173 Wash. 264; Parker v. Department of Labor & Industries, 14 Wn. (2d) 481;Cochran v. Nelson, 26 Wn. (2d) 82.  The word "throughout" is defined by Webster's New International Dictionary, (2nd Ed.), as follows:

            "Throughout,prep.  All the way from one end to the other of; in or to every part of; during the whole course or period of; as,throughout the house; throughout the year."

            See also 41, Words and Phrases, Perm. Ed. 611.

            Ordinarily the term "year" when used in a statute is presumed to refer to the calendar year.  We think it is immaterial to a determination of the question presented whether the year referred to is the calendar year or merely the annual period from July 1 to June 30 of the following year.  In our opinion the roadside stands in question must be licensed since they do not come within the exclusion of RCW 20.04.120, supra, relating to retail merchants who by definition operate permanent businesses on a year round basis.

            This opinion doesnot apply to a person operating a stand to sell his own produce.

            The opinion of this office, dated August 25, 1949 [[Opinion No. 49-51-114 to Sverre N. Omdahl, Department of Agriculture]], relating to roadside stands is overruled in so far as it is inconsistent with the conclusions reached in this opinion.

            We trust that the foregoing will prove helpful to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JOHN J. CHAMPAGNE
Assistant Attorney General