LIQUOR CONTROL BOARD ‑- ADVERTISING OF LIQUOR ‑- EXTENT OF POWER OF REGULATION.

AGO 1953 No. 3 - Apr 3 1953

Attorney General Don Eastvold

LIQUOR CONTROL BOARD ‑- ADVERTISING OF LIQUOR ‑- EXTENT OF POWER OF REGULATION.

In the absence of specific statutory authority the Washington State Liquor Control Board may not prohibit all advertising of liquor. The board, however, does have broad powers of regulation and may adopt such rules as will protect the welfare, peace, morals, health and safety of the people. The board, while not having the power to completely prohibit liquor advertising, does have the power to direct reasonable restrictive regulations to any media or medium of advertising as to time, space, character or location.

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April 3, 1953

Washington State Liquor Control Board
Public Lands-Social Security Building
Olympia, Washington Cite as: AGO 53-55 No. 3

Attention: Evro M. Becket, Chairman

Gentlemen:

We acknowledge your recent letter wherein you inquire whether the Liquor Control Board has the power under existing law to prohibit liquor advertising in the State of Washington.

The conclusions reached may be summarized as follows:

ANALYSIS

In considering your question, it is a general rule that the powers of an administrative agency of the state are derived from the legislature and its powers are limited by the statute creating it to those that are conferred expressly or by necessary or fair implication. 42 Am.Jur., Public Administrative Law, P. 316. The Washington State Liquor Control Board is an administrative agency whose responsibility it is to administer the Washington state liquor act, being chapter 62, Laws of 1933, Ex. Sess. (Rem. Rev. Stat. Supp. 7306-1, et seq. (RCW 66.04.010, et seq.) and subsequent amendments thereto).

The general rule of construction to be placed on the various sections of the Washington state liquor act and defining its purpose is contained in section 2 of the Washington state liquor act (section 2, chapter 62, Laws of 1933, Ex. Sess.; Rem. Rev. Stat. Supp. 7306-2; RCW [[Orig. Op. Page 2]] 66.08.010) which is as follows:

"This entire title shall be deemed an exercise of the police power of the state, for the protection 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."

The specific section of the Washington state liquor act which deals with liquor advertising is section 43 of the Washington state liquor act (section 43, chapter 62, Laws of 1933, Ex. Sess.; Rem. Rev. Stat. Supp. 7306-43; RCW 66.08.060), which provides:

"The board shall not advertise liquor in any form or through any medium whatsoever. The board may adopt any and all reasonable regulations as to the kind, character, and location of liquor advertising." (Emphasis Supplied).

By the provisions of RCW 66.08.060 the legislature has imposed an absolute prohibition against the advertising of liquor by Washington State Liquor Control Board. However, the legislature has made a clear distinction between advertising by the board and advertising by others. Liquor advertising by others than the board is not prohibited, but is subjected to control by "reasonable regulations."

The Washington Supreme Court has consistently recognized and applied the general rule that the power to regulate does not include the power to prohibit. In re Ferguson, 80 Wash. 102, 141 Pac. 322; Seattle v. Gervasi, 144 Wash. 429, 258 Pac. 328; Ajax v. Gregory, 177 Wash. 465, 32 P. (2d) 560;State ex rel. Thornbury v. Gregory, 191 Wash. 70, 70 P. (2d) 788;The Derby Club, Inc. v. Becket, 141 Wash. Dec. 810 [[41 Wn.2d 869]].

The case of In re Ferguson, supra, involved the validity of a city ordinance which prohibited the operation of theatres on Sunday. It was held that such a prohibition was within the proper exercise of regulatory power, the court saying:

" * * * It may be conceded, for the purposes of this case, that the power to license for purposes of regulation and revenue does not carry with it the power to prohibit. But the prohibition of a show on Sunday is not a total [[Orig. Op. Page 3]] prohibition. It is only a regulation of a show."

In Seattle v. Gervasi, supra, the court had under consideration an ordinance prohibiting the sale of groceries on Sunday. In sustaining the ordinance, the court said:

"The restrictions as to laboring and selling goods on Sunday in the ordinance are not prohibitions, but regulations." CitingIn re Ferguson, supra.

In the case of Ajax v. Gregory, supra, the court made the distinction between prohibition and regulation in the following language:

"While a prohibition of the sale of intoxicating liquor and the regulation of the sale thereof relate to the same subject matter, they are entirely different things. To prohibit the liquor traffic, implies the putting a stop to its sale as a beverage, to end it fully, completely and indefinitely. To regulate, implies that the sale of intoxicating liquor shall go on within the bounds of certain prescribed rules, restrictions and limitations."

State ex rel. Thornbury v. Gregory, supra, involved a regulation of the Washington State Liquor Board which prohibited the sale of beer and wine prior to six o'clock Monday morning, there being a statutory prohibition against sales on Sunday. In holding that this was a proper exercise of regulatory power, the court said (at pages 76-77):

"Appellant argues that the power to regulate does not include the power to prohibit, and that the prohibition of sales of beer and wine during certain hours or days constitutes prohibition rather than regulation, and is beyond the statutory power of the Board. This court,In re Ferguson, 80 Wash. 102, 141 Pac. 322, held that the prohibition of operation of theatres on Sunday was a regulation and not a total prohibition, and that, while the power to regulate does not necessarily imply the power to prohibit or suppress, such power does confer

"'". . . authority to confine the business referred to to certain hours of the day, to certain localities or buildings in the city, and to prescribe rules for its prosecution within those hours, localities, and buildings."'"

[[Orig. Op. Page 4]]

The most recent recognition by our Supreme Court of the difference in meaning between regulation and prohibition appears inThe Derby Club, Inc. v. Becket, supra, (1953), being a so-called "bottle club case." In this case it became a question as to whether it was the legislative intent to prohibit or regulate bottle clubs, and the court said, at page 815:

"* * * What was the legislative intent in enacting § 2: Was it to prohibit bottle clubs entirely or was it to regulate their operations?

"[2] If the intent had been to prohibit bottle clubs entirely, it would have been a simple matter for the legislature to have done so in express words. It did not do so, * * *

"The only reasonable interpretation of § 2 is that the legislature by enacting it manifested an intention to again make provision for the regulation of bottle clubs. * * *"

The provisions of RCW 66.08.060 contain no express authority for the prohibition of liquor advertising by others than the board itself. Under the rule laid down by our Supreme Court in the cases above cited, the inclusion of the power to regulate such advertising excludes the power to prohibit. The Washington State Liquor Control Board therefore may enforce reasonable regulations as to liquor advertising but cannot extend such regulatory power in such a manner as to prohibit that type of advertising.

However, under the cases of In re Ferguson, Seattle v. Gervasi, andState ex rel. Thornbury v. Gregory, supra, a regulation which would prohibit liquor advertising during certain hours of the day or on Sunday would not be an absolute prohibition of such advertising and would be within the board's regulatory power.

Yours very truly,
DON EASTVOLD
Attorney General