INTOXICATING LIQUOR ‑- STATUTORY DEFINITION OF WORD 'LIQUOR' ‑- EXEMPTION OF CULINARY PREPARATION

INTOXICATING LIQUOR ‑- STATUTORY DEFINITION OF WORD "LIQUOR" ‑- EXEMPTION OF CULINARY PREPARATION.

A fruit jelly manufactured for table use and offered for sale which is flavored with wine, is "liquor" as that term is defined in the liquor control act if it contains more than one percent of alcohol by weight and is not exempted from the act as a culinary preparation.

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                                                                   June 21, 1966

Honorable Damon R. Canfield
State Representative, 15th District
1368 Upland Drive
Sunnyside, Washington

                                                                                                                Cite as:  AGO 65-66 No. 89

Dear Sir:

            By letter previously acknowledged you have asked this office for an opinion on the following question:

            Is fruit jelly manufactured for table use and offered for sale, which is flavored with wine and has an alcoholic content, considered legally an alcoholic "beverage," or is it exempt from the laws and regulations pertaining to such beverages on account of being a "culinary" product, and not usable for beverage purposes?

            We answer your question in the analysis.

                                                                     ANALYSIS

            The principle statutes relating to liquor have been codified in Title 66 RCW under the heading"Alcoholic Beverage Control."  As the code reviser's note on the title page states, Title 66 RCW is primarily composed of the basic Washington state liquor act, chapter 62, Laws of 1933, Ex. Sess., as it has been amended and expressly added thereto.  The purpose and scope of the basic liquor act is expressed in its title in the following manner:  "Washington State Liquor Act.  An Act relating tointoxicating liquors, providing for the control and regulation thereof, creating state offices, defining crimes and  [[Orig. Op. Page 2]] providing penalties therefor, providing for the disposition of public funds and declaring that this act shall take effect immediately."  (Emphasis supplied.) Although the laws codified in Title 66 RCW relate principally to "alcoholic beverages," they also extend to "intoxicating liquors," a broader classification, as the title to the basic liquor act specifies and as will be shown later in this opinion.

            Section 2 of the liquor act as amended (RCW 66.04.010) contains 37 statutory definitions of terms used in subsequent sections of the act.  Neither "jelly" nor "beverage" is defined in this section or elsewhere in the act.  Webster's Third New International Dictionary defines "jelly" as

            ". . . a semitransparent easily melted food preparation having a soft somewhat elastic consistency due to the presence of gelatin, pectin or a similar substance: . . . as a fruit product made by boiling sugar and the juice of fruit containing pectin. . . ."

            The same text defines "beverage" as

            ". . . liquid for drinking; esp.:  such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavoring, heating, admixing) before being consumed. . . ."

            48 C.J.S. Intoxicating Liquors, § 2, states:

            "The word 'beverage,' as used in the statutes relating to intoxicating liquors, means a liquor that is capable of being drunk, . . ."

            The word "beverage," when used in statutes relating to intoxicating liquors, simply means liquor that is capable of being drunk.  People v. Buonocore, 73 Cal.App. 208, 238 Pac. 812, 813 (1925).

            InFalstaff Corporation v. Allen, (D.C. Mo.) 278 F.643 (1922), at 645, the court said:

            "It is fundamental that the word 'beverage,' as used in the Eighteenth Amendment, has  [[Orig. Op. Page 3]] no technical meaning, but that it is used in its ordinary meaning as defined in the dictionaries.  It means, then, simplyliquid for drinking, and connotes that the act of drinking is not accompanied by any ulterior purpose, or followed by any beneficial result, present, potential, or even hoped for.  Many beverages‑-for example, milk, coffee, and tea‑-are drunk either as beverages or foods, or both. . . ."

            Assuming the fruit jelly described in your question has the "somewhat elastic consistency" referred to in the dictionary definition quoted,supra, we conclude that it would not be considered legally an alcoholic "beverage."

            The second part of your question, i.e., whether the fruit jelly described in your question is exempt from the liquor laws as a "culinary" product is more difficult.

            RCW 66.12.070 reads as follows:

            "(1) Where a medicinal preparation contains liquor as one of the necessary ingredients thereof, and also contains sufficient medication to prevent its use as an alcoholic beverage, nothing in this title shall apply to or prevent its composition or sale by a druggist when compounded from liquor purchased by the druggist under a special permit held by him, nor apply to or prevent the purchase or consumption of the preparation by any person for strictly medicinal purposes.

            "(2)Where a toilet or culinary preparation, that is to say, any perfume, lotion, or flavoring extract or essence, contains liquor and also contains sufficient ingredient or medication to prevent its use as a beverage, nothing in this title shall apply to or prevent the sale or purchase of that preparation by any druggist or other person who manufactures or deals in the preparation, nor apply to or prevent the purchase or consumption of the preparation by any person who purchases or consumes it for any toilet or culinary purpose.

             [[Orig. Op. Page 4]]

            "(3) In order to determine whether any particular medicinal, toilet, or culinary preparation referred to in this section contains sufficient ingredient or medication to prevent its use as an alcoholic beverage, the board may cause a sample of the preparation, purchased or obtained from any person whomsoever, to be analyzed by an analyst appointed or designated by the board; and if it appears from a certificate signed by the analyst that he finds the sample so analyzed by him did not contain sufficient ingredient or medication to prevent its use as an alcoholic beverage, the certificate shall be conclusive evidence that the preparation, the sample of which was so analyzed, is not a preparation the sale or purchase of which is permitted by this section."  (Emphasis supplied.)

            We think the underscored language quoted above is ambiguous.  The court inLadum v. Utility Cartage, Inc., 68 W.D. 2d 93, [[68 Wn.2d 109]]411 P.2d 868 (1966), at page 99, quotes with approval Webster's New International Dictionary (2d ed.) definition of ambiguous as "Capable of being understood in either of two or more possible senses."  Are the words "that is to say" in RCW 66.12.070 (2) used as words of "illustration" or words of "limitation"?  In other words, where the statute refers to ". . . a . . . culinary preparation, that is to say, any . . . flavoring extract or essence, . . ." did the legislature intend to explain that flavoring extracts and essences were examples of culinary preparations or did it intend to restrict culinary preparations to those enumerated, to wit, flavoring extracts and essences?  Since the legislative meaning is not clear we are required to resort to rules of statutory construction, bearing in mind that the primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.  Martin v. Aleinikoff, 63 Wn.2d 842, 389 P.2d 422 (1964).  In construing the meaning of a doubtful statute, it is legally permissible to resort to its legislative history.  Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940).  In this instance, however, such a review is not helpful since RCW 66.12.070 is § 51 of the basic Washington state liquor act,  [[Orig. Op. Page 5]]supra, and has never been amended.1/

             We believe the legislature intended to restrict exempted culinary preparations to flavoring extracts and essences.  Our reasons are twofold.

            First, a statute designed generally to promote the public welfare, or expressly prescribing a liberal construction, should be liberally construed, but the converse is true of provisions therein setting up exemptions or exceptions to its operation.  Exemptions should be given a narrow or constrictive construction.  Spokane v. State, 198 Wash. 682, 89 P.2d 826 (1939); 50 Am.Jur. Statutes, § 431.

            RCW 66.08.010 provides:

            "This entire title shall be deemed an exercise of the police power of the state, for theprotection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose."  (Emphasis supplied.)

            RCW 66.12.010et seq., exempt certain specified activities and products from the other provisions of Title 66 RCW.  RCW 66.12.070, supra, exempts the particular medicinal, toilet, or culinary preparations referred to in that section.  A narrow or constrictive interpretation then of RCW 66.12.070 means that flavoring extracts or essences described therein are the only culinary preparations exempt from the application of other sections of Title 66 RCW.

            Second, many cases enunciate the legal proposition that where a statute is ambiguous, weight will be given to the administrative or executive construction thereof and practice under it, especially when such practice has continued for a long period of time.  In re Lloyd's Estate, 53 Wn.2d 196, 199, 332 P.2d 44 (1958).  InBradley v. Dept. of Labor & Ind., 52 Wn.2d 780, 786, 329 P.2d 196 (1958), the court said:

             [[Orig. Op. Page 6]]

            ". . . Where a statute is ambiguous, construction placed upon it by the officer or department charged with its administration is not binding on the courts but is entitled to considerable weight in determining the legislative intention, and thepersuasive force of such interpretation is strengthened when the legislature, by its failure to amend or by amending some other particular without repudiating the administrative construction, silently acquiesces in the administrative interpretation.  White v. State, 49 Wn.2d 716, 306 P.2d 230."  (Emphasis supplied.)

            The liquor control board in which the administration of the liquor laws is vested,2/ has for years narrowly construed RCW 66.12.070 (2).  Preparations including rum flavored fruit cake, rum flavored candy, whiskey flavored candy, wine sherbet, and strawberries frozen in wine have been classed as not within the exemption provided by RCW 66.12.070 (2).  Whether such products could legally be sold by persons within the state was dependent upon whether the products contained not over one percent of alcohol by weight.3/   Although the legislature has amended various other sections of the liquor act, it has failed to amend RCW 66.12.070 (2).

            Since the fruit jelly described in your question is obviously not a flavoring extract or essence, we conclude it is not within the exemption provided by RCW 66.12.070 (2), supra.  We do not reach the question whether this product might  [[Orig. Op. Page 7]] satisfy other requirements of this subsection.

            We have concluded 1) that the fruit jelly described in your question is not an alcoholic beverage, and 2) that it is not exempted as a culinary preparation by RCW 66.12.070 (2).  We must now determine if this nonbeverage product that is flavored with wine and has an alcoholic content is "liquor" within the scope of the liquor laws codified in Title 66 RCW.

            Significantly, RCW 66.04.010 contains precise definitions of "beer,"4/ "wine,"5/ and "spirits,"6/ and each is referred to as a "beverage."  On the other hand, "alcohol,"7/ though precisely defined, is referred to as a "substance."  "Liquor"8/ is defined as follows:

            "(16)'Liquor' includes the four varieties of liquor herein defined (alcohol, spirits, wine and beer), and all fermented, spirituous, vinous, or malt liquor, or combinations thereof, and mixed liquor, a part of which is fermented, spirituous, vinous or malt liquor, or otherwise intoxicating; and every liquid or solid or semisolid or other substance, patented or not, containing alcohol, spirits, wine or beer, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption, and any liquid, semisolid, solid, or other substance, which contains more than one percent of alcohol by weight shall be conclusively deemed to be intoxicating."  (Emphasis supplied.)

             [[Orig. Op. Page 8]]

            In our opinion the fruit jelly described in your question is within the encompassing definition of "liquor" quoted above if it contains more than one percent of alcohol by weight.  As "liquor" it is within the scope of the liquor laws codified in Title 66 RCW.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ARTHUR F. MICKEY
Assistant Attorney General