MARRIAGE OF TAVERN OPERATOR TO PERSON UNDER TWENTY-ONE

LICENSES ‑- INTOXICATING LIQUOR ‑- MINORS ‑- MARRIAGE OF TAVERN OPERATOR TO PERSON UNDER TWENTY-ONE

(1) A tavern operator holding appropriate state liquor licenses who is, himself, over twenty-one years of age may not be denied the continuation or reissuance of those licenses by the State Liquor Control Board solely on the ground that he is married to a female who is under twenty-one.

(2) Under those circumstances, however, the wife‑-if employed as the tavern bookkeeper‑-would be unable to legally enter the tavern premises in the course of her employment.

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                                                                 January 27, 1981

Honorable Richard A. King
St. Rep., 38th District
408 Legislative Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1981 No. 2

Dear Sir:

            By recent letter you requested our opinion on two questions which we paraphrase as follows:

            (1) May a tavern operator holding appropriate state liquor licenses who is, himself, over twenty-one years of age be denied the continuation or reissuance of those licenses by the State Liquor Control Board solely on the ground that he is married to a female who is under twenty-one?

            (2) Assuming a negative answer to question (1) and the continued licensing of the husband, could the wife, if employed as the tavern bookkeeper, legally enter the tavern premises in the course of her employment ". . . solely for the purpose of obtaining appropriate sales receipts and invoice statements . . ."? [[Orig. Op. Page 2]]

            We answer both questions in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            With certain limited exceptions noted below in response to your second question, RCW 66.44.310(1) and related statutes prohibit persons who are under twenty-one years of age from entering or remaining on the premises of any tavern in this state.  It is important to note, however, that this prohibition does not cover all establishments which have been licensed under the State Liquor Act to sell or serve intoxicating liquors.  Instead, it only applies to such establishments as have been classified by the Liquor Control Board as taverns in accordance with RCW 66.44.310(2) which provides that:

            "(2) The Washington state liquor control board shall have the power and it shall be its duty to classify the various licensees, as taverns or otherwise, within the meaning of this title, except bona fide restaurants, dining rooms and cafes serving commercial food to the public shall not be classified as taverns during the hours such food service is made available to the public."

            Because of the foregoing, it has long been the policy of the Washington Liquor Control Board, quite logically, to require persons to be at least twenty-one in order to be issued the appropriate retail liquor licenses for the operation of any such tavern.1/   For, obviously, if one could not lawfully enter and remain on the premises of the place which he or she was proposing to operate, that person would be hard pressed to conduct a successful operation. [[Orig. Op. Page 3]]

            Question (1):

            This brings us to the first question you have posed.  Would the marriage of a duly-licensed tavern operator to a person under twenty-one years of age in and of itself constitute a legitimate basis for the revocation or denial of the reissuance of a tavern operator's liquor license?

            In our opinion, it would not.

            We are aware of the provisions of WAC 314-12-020(1), an administrative regulation which has been adopted by the Liquor Control Board and reads as follows:

            "Where a married person is an applicant for, or holder of a license, the spouse of such applicant, if the parties are maintaining a marital community, shall be required to have the same qualifications as the applicant."

            We do not, however, believe the age of a tavern operator's spouse is a legally enforceable qualification for the continued licensing of the tavern operator himself.  It is obvious that thephysicalage of the tavern operator is purely a personal qualification which is no more shared by the applicant's spouse than it is by his sons or daughters or other relatives.  Clearly, it would make no sense whatsoever to bar a person from retaining retail liquor licenses for the operation of a tavern simply because that person still has minor children at home.  And it makes no more sense, in our judgment, to prohibit a person from retaining such licenses solely by reason of the age of his or her spouse.  We therefore do not believe it was truly the intent of the Liquor Control Board, in adopting WAC 314-12-020(1), supra, to preclude an otherwise qualified person from retaining the licenses here involved solely by reason of the fact that his spouse has not yet attained the age of twenty-one years.

            Moreover, we must further conclude that if that or any other such regulation were to be construed to the contrary (i.e., so as to apply to this particular qualification) the regulation would be both statutorily and constitutionally invalid.  See, to begin with, AGO 65-66 No. 103 (copy enclosed) in which we set forth the following set of guidelines to be applied in determining if any particular Liquor Board regulation isstatutorily valid: [[Orig. Op. Page 4]]

            "But within the framework of its legislatively-granted authority, it seems clear that the board may adopt rules and regulations which adhere to certain general guidelines which we derive from the principles recognized in the authorities cited and discussed above.  Thus, the questions to be asked in regard to any proposed regulation of the liquor board are whether the regulation,

            "(1) is 'necessary or advisable' to carry into effect any of the provisions of the liquor act 'according to their true intent,' and is consistent with the spirit of the act‑-see, RCW 66.08.030; and

            "(2) has a 'proximate connection' with some provision of the liquor act‑-see,State v. Miles, supra; and

            "(3) relates to the regulation and control of the liquor traffic in this state or the administration and enforcement of the liquor act‑-see, RCW 66.08.050(9), supra; and

            "(4) is reasonable in scope and effect in the light of all circumstances (which include the particular factual problem giving rise to its adoption) and does not represent an arbitrary or capricious exercise of the board's powers."

            In addition, our research has disclosed cases from other jurisdictions which, by analogy, clearly indicate a further constitutional barrier to any reading of board regulations as precluding an otherwise qualified person from retaining the licenses here involved solely by reason of the fact that his spouse has not yet attained the age of twenty-one years. One such case is Walpole v. State Liquor Authority, 356 N.Y.S.2d 462, 78 Misc.2d 372 (1974) which arose when the State Liquor Authority disapproved a woman's application for a retail liquor license solely because of her husband's position as a state policeman.  A New York statute prohibited certain police officers from having any interest, direct or indirect, in the manufacture or sale of alcoholic beverages.  It was clear, however, that the husband in that particular instance would have no interest whatsoever in the licensed premises, either [[Orig. Op. Page 5]] directly or indirectly, except for his marriage relationship with the applicant.  The Court held that under the constitutional Equal Protection Clause the applicant wife could not be denied a retail liquor license merely because she was a married woman, that she was thus not disqualified from holding a retail liquor license on the sole basis of her husband's position as a state policeman, and, further, that the refusal to grant the license application was arbitrary, capricious and an abuse of discretion.

            Similarly, inArizona State Liquor Board of Department of Liquor Licenses & Control v. Ali, 27 Ariz.App. 16, 550 P.2d 663 (1976) a resident alien appealed a decision of the State Liquor Board denying him a spiritous liquor license solely because of his alien status.  The Court held the statute upon which the denial was based was unconstitutional as a denial of the equal protection of the law, saying, at page 665:

            ". . . The state may not arbitrarily foreclose to any person the right to pursue an otherwise lawful occupation.  Any limitation on the opportunity for employment impedes the achievement of economic security, which is essential for the pursuit of life, liberty and happiness; courts sustain such limitations only after careful scrutiny. . . ."

            We therefore answer your first question in the negative.

            Question (2):

            This question assumes the foregoing negative answer to question (1) and asks whether, in the event the under-age wife is employed as a bookkeeper for the subject tavern, she may lawfully enter the tavern premises ". . . solely for the purpose of obtaining appropriate sales receipts and invoice statements in connection with such employment . . ."

            In view of the prohibition contained in RCW 66.44.310(1),supra, we believe that this question also must be answered in the negative.  That subsection of the State Liquor Act reads, in material part, as follows:

            "(1) It shall be a misdemeanor,

            "(a) To serve or allow to remain on the premises of any tavern any person under the age of twenty-one years; [[Orig. Op. Page 6]]

            "(b) For any person under the age of twenty-one years to enter or remain on the premises of any tavern;

            "(c) For any person under the age of twenty-one years to represent his age as being twenty-one or more years for the purpose of securing admission to or remaining on the premises of any tavern."

            The only exceptions to those prohibitions, which are contained in RCW 66.44.316, involve,

            ". . . professional musicians, professional disc jockeys, or professional sound or lighting technicians actively engaged in support of professional musicians or professional disc jockeys, eighteen years of age and older . . . only during and in the course of their employment as musicians, disc jockeys, or sound or lighting technicians."