Opn. No. ( 1979 )

Hon. Orin Lehman Commissioner Office of Parks and Recreation

You advise that your office has entered into a licensing agreement with a concessionaire whereby he will bottle and distribute for a fee the mineral waters from the State Reservation at Saratoga Springs which is under the jurisdiction of your office. You have also furnished to me a copy of the licensing agreement. You request advice as to whether the State coat of arms (device of arms) may be used on the labels of the bottles containing the mineral waters from the State Reservation which will be bottled and distributed by the concessionaire.

My predecessors have held that the applicable statute, section136 of the General Business Law, does not prohibit the use of the coat of arms by the State or its agencies for official business (1930 Op Atty Gen 115; 1934 Op Atty Gen 331). In the latter opinion it was noted that although the statute prohibited the use of the coat of arms for advertising purposes, the coat of arms could be used by the Department of Agriculture and Markets on advertising matter distributed by that agency to encourage the consumption of milk because the advertising matter was official in character and authorized and provided for by statute (section328 of the Agriculture and Markets Law, now section 258-t).

Section 13.25 of the Parks and Recreation Law provides that in addition to your powers specified in section 3.09, you shall have with respect to the State Reservation at Saratoga Springs the power, function and duty to have custody and control of said Reservation including all mineral waters and gases thereon; to grant licenses or concessions for the use of any portion of such property; to regulate the sale of any waters or gases on the Reservation and adopt and register such trademarks or trade names as may be desirable with respect to such waters or gases.

You futher advise that heretofore when the State of New York itself bottled the mineral waters of the Reservation and licensed their distribution by a concessionaire for a fee, the labels thereon contained the coat of arms of the State of New York.

It is my opinion that the bottling and distribution of the State owned mineral waters from the State Reservation at Saratoga Springs by a concessionaire pursuant to a license granted by you pursuant to statutory authority, which license by its terms provides for a fee payment to the State based on the number of gallons of mineral waters supplied, is official business within the meaning of my predecessors' opinions.

Accordingly, it is concluded that you may, by the licensing agreement, permit the State coat of arms to be used on the labels of the bottles containing the mineral waters from the State Reservation which are to be bottled and distributed by the licensee.