INTOXICATING LIQUOR ‑- CONSUMPTION IN UNLICENSED CLUBS

INTOXICATING LIQUOR ‑- CONSUMPTION IN UNLICENSED CLUBS.

An incorporated nonprofit club must be licensed or the consumption of liquor authorized by banquet permit in order for persons to consume liquor on club premises.

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                                                                   April 12, 1962

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

                                                                                                              Cite as:  AGO 61-62 No. 112

Dear Sir:

            By letter previously acknowledged, you requested our opinion on a question which we paraphrase as follows:

            May an incorporated nonprofit club permit the consumption of liquor on its premises when such club is neither licensed by the liquor control board nor the consumption of liquor on club premises authorized by a banquet permit issued by the board?

            We answer this question in the negative.

                                                                     ANALYSIS

            While it is not legally necessary for the purposes of this opinion to review the history of bottle clubs in this state, we believe a brief reference to prior enactments and decisions is proper in this instance.

            Section 23 (T) of the Washington state liquor act (§ 23 (7), chapter 62, Laws of 1933, Ex. Sess., as amended by chapter 217, Laws of 1937) provided for

            ". . . a license to clubs, entitling each member of the club to keep on the premises a reasonable quantity of liquor for personal consumption on the premises:Provided,. . ."

            In 1946, the court held inState v. Lake City Bowlers' Club, Inc., 26 Wn. (2d) 292, 173 P. (2d) 783 (1946), that a club incorporated under the laws of the state of Washington as a nonprofit organization maintaining club premises to which the general public was not admitted  [[Orig. Op. Page 2]] which permitted its members to keep intoxicating liquor for consumption on the premises must be licensed and that an unlicensed club whose members were permitted to keep intoxicating liquor for personal consumption on the club premises was acting in violation of the state liquor act.

            Initiative 171 (chapter 5, Laws of 1949), was passed by the vote of the people at the general election in 1948.  Section 23 (T) of the liquor act was amended by this initiative to authorize the issuance of a Class H liquor license for the sale of spirituous liquor to premises enumerated in the initiative, including clubs meeting certain requirements.  Clubs holding 23 (T) club licenses were given six months to apply for and obtain a Class H license.  After six months club licenses granted under 23 (T) prior to the effective date of Initiative 171 were null and void.

            One effect of this initiative was to eliminate the authorization for licensed clubs to permit their members to keep liquor on the club premises for personal consumption.

            In 1950, the attorney general ruled in AGO 49-51 No. 391 [[to Victor Zednick, State Senator on November 22, 1950]], that as a result of the amendment of § 23 (T) by Initiative 171 a bona fide club need not be licensed in order for its members to consume their own liquor on club premises.

            In 1951, the legislature enacted chapter 120, Laws of 1951 (see RCW 66.24.480).  Section 2 of this chapter, after defining a "bottle club," provided in paragraph 2 that, except as permitted under a license issued by the Washington state liquor control board, it was unlawful to conduct or maintain a bottle club.

            On January 20, 1953, the court in Derby Club v. Becket, 41 Wn. (2d) 869, 252 P. (2d) 259 (1953), declared § 2, chapter 120, Laws of 1951 unconstitutional.  On page 877 of its decision the court stated:

            "By making it a gross misdemeanor to operate a bottle club (which the attorney general had held was lawful prior to the enactment of § 2) unless the operator has procured a license issued by the Washington state liquor control board (for which the legislature failed to make any provision), the legislature denied appellants due process of law.

            "The second paragraph of § 2 is vague, uncertain, and unintelligible, because it prescribes no standards by which the liquor control board may determine who is and who is not  [[Orig. Op. Page 3]] entitled to a license to operate a bottle club.  Only by reading out of the statute the words 'Except as permitted under a license issued by the Washington state liquor control board' can § 2 be upheld.  As above stated, this clause cannot be disregarded as mere surplusage. . . ."

            and on page 880, the court stated:

            "The second paragraph of § 2 is void because it is vague, uncertain, indefinite, and unintelligible and contains no standards for determining under what circumstances the liquor control board may grant or deny an applicant a bottle club license.  The legislature may prohibit the operation of bottle clubs entirely or may regulate their operation in such manner as it sees fit, but it may not require, as a condition precedent to their lawful operation, the issuance by the liquor control board of a license which is nonexistent and unobtainable.  The attempt to do so in the second paragraph of § 2 violates the due process clauses of the state and Federal constitutions."

            Within sixty days after the court's decision in the Derby Club case, supra, the legislature added to chapter 66.24 RCW, relating to alcoholic beverage control, a new section (§ 1, chapter 141, Laws of 1953) now codified as RCW 66.24.481, reading as follows:

            "No club, or agent, servant or employee thereof, shall keep or allow to be kept, either by itself, its agent, servant or employee, or any other person, any liquor in any clubroom or place maintained or conducted by such club, nor shall it permit the drinking of any liquor in any such clubroom or place, unless the sale of liquor in said clubroom or place is authorized by virtue of a valid and subsisting license issued by the Washington state liquor control board, or the consumption of liquor in said clubroom or place is authorized by a special banquet permit issued by said board.  Every person who violates any provision of this section shall be guilty of a gross misdemeanor."

             [[Orig. Op. Page 4]]

            This statute has not been amended and is the current law dealing with the consumption of liquor in clubs.

            We think the express language of this statute evidences a clear legislative intent to prohibit unregulated consumption of liquor on club premises and requires a negative answer to your paraphrased question.  We would further point out that the constitutionality of chapter 141, Laws of 1953, was challenged in the Superior Court of Thurston County in Aurora Country Club, et al. v. Becket, et al., No. 27434.  This declaratory judgment action was brought by five incorporated social clubs requesting the court to determine that chapter 141, Laws of 1953, had no application to their operations as conducted under RCW 66.24.480, and that if such law were applicable it be declared unconstitutional and violative of the due process clauses of the state and federal constitutions.  One of the plaintiffs' contentions was that the word "club" used in chapter 141, Laws of 1953, did not include "bottle club."  The court in its memorandum opinion dated September 3, 1953, wrote in part as follows:

            "It is well settled that the state has wide and almost unlimited power to control matters relative to intoxicating liquor.  Plaintiffs cannot claim any constitutional immunity from the state's powers in those matters.  The Act, Chapter 141 of the Laws of 1953, is valid and constitutional.

            "Plaintiff's argument that such Act applies to clubs other than bottle clubs in an interesting piece of legal philosophy, but is wholly without merit.  The word 'club' as used in the Act is a general term and does not require reference to any other Act, or part of Act to establish its meaning.  It is obvious that the legislature meant to refer to all clubs, whether they be bottle clubs, golf and country clubs, dancing clubs, or social clubs."

            The trial court's decision in this case was not appealed.

            We have not overlooked your questions concerning requirements for membership in an incorporated nonprofit club.  However, in the belief that this will entirely answer your inquiry, we have not answered your questions concerning requirements for membership in an incorporated nonprofit club since it appears that the method by which a  [[Orig. Op. Page 5]] club acquires its members does not affect our conclusion.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ARTHUR MICKEY
Assistant Attorney General