Untitled Texas Attorney General Opinion ( 1966 )


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  •         THEATTORNEY                 GENERAL
    OF     EXAS
    AUSTIN.   TEXAS    7S111
    May 26, 1966
    a-l   252
    Honorable Colc&R. Stevenson, Jr.     Opinion No. C-693
    Administrator
    Texas Liquor Control Board           Re: Under the Texas Liquor
    Austin, Texas                            Control Act, whether a
    fraternal club or vet-
    erans club Is authorized
    to serve alcoholic bev-
    erages already owned by
    a member of such club to
    such member and receive
    a service charge there-
    for without first ob-
    taining a private club
    registrationpermit and
    Dear Mr. Stevenson:                      related questions.
    In your request for an opinion of this office, you have
    called our attention to various sections of the Texas Liquor
    Control Aot (Articles666-l et seq. and 667-l et seq., Vernon's
    Penal Code) with reference to prohibited "sales" and the per-
    lalasibleact "to serve" alcoholic beverages as follows: Para-
    666-3; Article 666-4, paragraphs
    Article 666-15(e),paragraphs 5,
    Code Article numbers are,used
    ParagraphB2J of Article 666-15(e)
    provides that:
    nothing in Section
    tick i &tlcle
    Texas Liquor Control Act
    Fraternal or Veterans Clubs."
    You then state in your request:
    "In order to reconcile the above stat-
    utes the Texas Liquor Control Board has
    dlatlngulshedbetueen an act of serving
    an alcoholic beverage owned by a member of
    a club to such member for a service charge
    and an act of selling an alcoholic beverage
    owned by the club or an employee of the
    club to any person whether a member or not
    for a price. The Board has permitted the
    -3330-
    Honorable Coke R. Stevenson,    Jr.,   Page 2 (C-693)
    holder of a Private Club RegistrationPermit
    to serve alcoholic beverages already owned
    by mer      of such club to such member and
    his family and his guests and to charge a
    service chapge therefor. However, the Texas
    Liquor Control Board has taken action to can-
    cel a Private Club Registrationpermit when
    the holder thereof has sold any type or al-
    ooholic beverage to any-son    whether a
    meaber or not.
    "Prior to your opinion MO. c-622 the same
    distinctionwas made with reference   to Ra-
    ternal Clubs and Veterans Clubs. That Is to
    SSJ, a Fraternal Club or a Veterans Club was
    permitted to serve an alaohollc beverage al-
    ready ownedb-ember       of such club to such
    member for a service charge. However, Fra-
    ternal Clubs and Veterans Clubs were asked
    to rerrafn from selling alcoholic beverages.
    "Arter your opinion No. c-622 questions
    have arisen, because the writer of such
    opinion did not make the distinctionabove
    stated."
    Your request asks the opinion of this office on the fol-
    louing    questions8
    *1. Is a Fraternal Club or Veterans Club
    authorized to serve alcoholic beveragea al-
    ready owned bynmber      of such club to such
    aember and receive a service  oharge therefor
    without fl.Fsthaving obtained a Private Club
    RegistrationPermit?
    “2.  Does Section 3 of Article I   rtlcle
    666-    of the Texas Liquor Control AC
    q prohibit
    IiPsternal Club or a Veterans Club iron aell-
    ``distllled spirits by the drink to any-
    “3.  Does Section 4, (a) of Article I
    rtlole 666-=4(a of the Texas Liquor Con-
    6rol Act prohlb2 a Fraternal Club or a
    Veterans Club from         liquor  to any
    person without firs          obtained a per-
    mit authorfzlngthe sale of IlqbtOr?
    -3339 -
    Honorable Coke R. Stevenson, Jr., Page 3 (c-693)
    :‘4..Does Section 3 of Rrtlclc II fi-
    tlcle 667-T  of the Texas Liquor Control
    Act prohl6it a Fraternal Club or Veterans
    Club from 3elllng beer to any person with-
    out first having obtained a license author-
    izing the sa.leof ,beer?
    ”5. Doe3 Section 4, (b) of Article I
    Ki;ticIe666-4, paragraph (g oi’the Texas
    tFquor Control Act prohlblt a Fraternal Club
    oi’Veteran3 Club from sellln6 liquor or beer
    in a dry area to any peroon?
    AnsNerlng your questions In the above sequence, the first
    cues tlonIs answered “Yes.” A Fraternal or Veterans Club In
    not excluded from the right to Serve alcoholic beverages al-
    ready owned by such a club memb=d     to receive a service charr;e
    ‘ihercforwithout first having obtained a Private Club Regietra-
    tlon Permit.
    This office previously held In ItsOplnlon No. C-622
    1966)     that Fraternal or Veteranc Club3 are “exempt” and not
    sexcluded” from the provisionsof Article 666-15(e);      that
    the3e clubs are not required to obtain a permit and are not in
    violation     of the Iaw,or acting illegally in serving alcoholic
    beverages to their members on their premises without     a llcer!3e
    or permit.
    Paragraph 5 of Article 666-15(e)       provides, in part, as
    -i”ollows
    (emphasisours):
    “5. A Private Club RegistrationPermit
    shall permit alcoholic beverage3 owned
    by’members of the club to be stored, po33esred,
    ml;:ed,or consumed and served by the drink . . .
    on club premises, but om       or to members
    ownlyg such alcoholic beverages or such mem-
    bcrs families or their guests;   . . .’
    Paragraph 7 of Article 666-15(e) provides, In part, a3
    f3llows:
    “7.  The Board or Administratormay can-
    cel . . . any Private Club RegistrationPer-
    mit . . . upon finding that the permittee
    Club has:
    “(a). Sold . . . any liquor wha,t-
    soever 30 as to constitutean open
    saloon as defined in Section 3 of
    -3332-
    Honorable Coke R. Stevenson, Jr., Page 4 (C-693)
    the Texas Liquor Control   Act."
    A holding that Veterans or Fraternal Clubs are excluded
    and not entitled to the permissive benefits of such law In
    operating a private club would necessarily involve an uncon-
    stitutionalstatutory construction,rendering the statute    to
    that extent Illegal class legislation. Attorney General’s
    Opinion No. c-622 (1966),  page 3. We also attempted to make
    It clear in th8t Opinion at the bottom of page 1(that:
    "This opinion shall not be construed
    to mean that the veterans and fraternal
    organizationsare exempted from other
    provisions of the Texas Liquor Control
    Act.   . .‘I
    These other provisionswill be hereinafterdiscussed In con-
    nection with our answer to your remaining questions.
    In answering your remaining questions 2, 3, 4 and 5,
    we will group these related questions together for discussion
    8nd anawer, and particularlyIn view of the fact that our
    an3wer Is “Yes” to each of them.
    Article 666-3 does prohibit a Fraternal Club or Vet-
    erans Club from sellln distilled spirits        the drink to any
    uerson. However+ ra ernal and veterans c bs mav serve al-
    coholic beverages to Its members and guests witboLt first
    having obtained a permit a8 provided In Article    666-15(2),
    Vernon's Penal Code.
    Paragraphs (a) and (b)    or Artiolo 666-3   provide   as
    r0il0w3     (emphasisours):
    "(a). The term ‘open saloon8 a.3 used
    In this Act, means any plaoe where any al-
    coholic beverage whatever, manufacturedIn
    whole or In part by means of the process of
    dlstlllatlon,or any liquor composed or com-
    pounded in part of distilled spirits, 13
    sold or offered for sale for beverage pur-
    poses by the drink or     broken or unsealed
    containers,or any place where any such
    liquors are sold or offered for sale for
    human consumptionon the premisenere
    a.
    "(b). It shall be unlawful for any
    person, whether as principal,agent, or
    -3333-
    .
    Honorable Coke R. Stevenson,   Jr., Page 5 (C-693)
    employee, to operate or assist In opera-
    ting, or to be directly or indirectly
    Interested in the operation of any open
    saloon in this State.”
    Paragraph (a) of Article 666-4 prohibits a Fraternal
    or Veterans Club from selllna llauor to anv oe~son without
    first having obtained a ,ermitto sell liquor. It expressly
    provides, in part, as fol ows !mphasisours):
    +=G
    “(a). It sha;l.l;eunlawful for any
    person to . .              any liquor In
    any wet area without %si having procured
    a Permit of the class required for such
    privilege.”
    Article 667-3 prohibits a Fraternal or Veterans Club
    from selling beer to any person without first having obtained
    a license authorizing the sale of liquor. It expressly pro-
    vides, in part, as follows (emphasisours):
    “It shall be unlawful for any person
    to . . . sell any beer . . . within this
    State wit-    having first obtained ap-
    propriate license as herein provided, . . .”
    Paragraph (b) of Article 666-4 prohibits a Fraternal
    Club or Veterans Club from selling liquor or beer in a dry
    area to any person. Its express provisions read in part
    (emphasisours):
    “(b). It shall be unlawful for any
    person in any dry area to . .   sell
    any liquor, distilled spirm
    whiskey, gin, brandy, wine, rum, beer
    or ale.
    We approve and are in agreement with your administrative
    interpretation,construction,and practice under the above
    cited statutes  distinguishingbetween the act of servin
    hollc beverages owned by a member of a club to sue-r---E
    mem er
    alco-
    for
    a service charge and the entirely separate act of sellin$ such
    beverages owned by the club, or one of its employees or agents,
    to any person, whether or not a member, for a price. Such act
    of serving beverages owned by the club member, to him, his
    fam’ilyand guests,  whether the club be one with a private club
    registrationpermit or a Fraternal or Veterans Club not re-
    quired to have such permit, Is entirely legal. The act of
    sellin& such beverage owned by the club, or one of its employ-
    -3334-
    .
    Honorable Coke R. Stevenson, Jr., Page 6 (c-693)
    ees, to a club member, or any other person, for a price is
    megal as shown by the above cited statutes.    This consistent
    departmentalor administrativeconstructionhas been followed
    since 1961, when Article 666-15(e) became effective. It will
    ordinarily be given great weight and adopted by the courts as
    a part of the law Itself under such circumstances. 53 Tex.
    Jur.2d 259, 263, Statutes, Sec. 177; State v. Rarrls, 
    342 S.W.2d 177
    (Tex.Civ.App.1960, no history). F th             the
    Legislature has twice met in regular session aZ m%YE'deem-
    ed to have acquiesced in and accepted such Interpretationun-
    der the above authority.
    This distinctionand Interpretationarises   from the ad-
    dition of Article 666-15(e) to the Liquor Control Act, by the
    Fifty-SeventhLegislature in Regular Session (H.B. 892, ch.
    262, Sec. 1, p. 559), wherein a regulatory system Involving
    permits was set up for 'Private Clubs", and both a "Locker
    System" and "Pool System" were recognized as being legal, the
    latter only in "wet areas. Prior to 1961, only the locker
    system was recognized as a legal means of operation to avoid
    what might otherwise have been deemed a mere shift or device
    to evade the law prohibiting"sales."
    In Opinion No. V-203 (1947), this office held that
    normally when.individualmembers furnished their funds to an
    officer of a private club, whether in a "wet" or "dry" area,
    such liquor became the common property of the club. There-
    after, when a drink Is delivered by the steward to a member
    and paid for in the manner provided by the club, an illegal
    sale resulted b the club to the member, violating Article
    ES6-3# para. (aT . See also in this connectionour Opinions
    s. O-1145 (1939), O-7139 (1946) and R-1221 (1948);Krnavek
    v. State, 
    41 S.W. 612
               1897);
    s.w.-506 (Tex.Crim.
    (Tex.Grim. 1912); Bsckues
    App. 1949, error r--urban               Club Inc. v. State,
    
    222 S.W.2d 321
    (Tex.Clv.App.19w error ref. n..r.re
    v. Harris, supra; State v. Garcia: 
    348 S.W.2d 231
    (Tex.E
    APP., 1961, no his ory ; and Texas Liquor Control Board v.
    Tishlias, 
    351 S.W.2d 562
    (TexmApp.     lgbl, error ref. n.r.e.).
    However, In Opinion No. V-203 
    (1947), supra
    , this office
    recognized a significantdistinctionbetween a method of opera-
    tion involving an illegal sale, wherein the member was deemed
    to have bought the club's liquor, and a method of legal operas-
    tlon not involvinga sale, wherein the member may be said to
    have simply been delivered or served his own liquor under the
    locker system, wherein we stated:
    -3335-
    Honorable Coke R. Stevenson, Jr.,    +ge   7 (C-693)
    "We wish to point out that the method
    of operation involved here is to be dla-
    tingulshed from the one .     being used
    over the state, wher;?individ,ual
    iockers a.reprovided for the members ~of
    the club. In those situations, there would
    not be a sale of liquor, and it would not
    be purchased by the treasurerout of funds
    belonging to the club thereby becoming the
    property of the club."
    This distinctionand practice was recognizedb the
    Legislature
    .       in 1961, when in
    _ addieg Article 666-15(e 7 they
    sougnt to recognize not only the "Locker System" in scbpara-
    graph (b) but also the "Pool System" In subparagraph(c) as
    follow3:
    "(b). 'Locker System' shall mean that
    system of alcoholic beverages storage where-
    by the club rents to its members lockers
    wherein the member may store alcoholic bev-
    erages for consumptionby himself or his
    guesta.  All such alcoholic beverages so
    stored under the 'lockersystem' shall be
    purchased and owned by the member as an ln-
    dlvidual.
    "(C). 1Pool System' shall mean that
    system of liquor storage where all mem-
    bers of the pool participateequally in
    the purchase of all alcoholic beverages
    and the replacementof all alcoholic bev-
    erages 13 paid for by moneys a,ssessedand
    collected In advance from each member
    equally. Such pool system shall be legal
    only in an area which has been voted 'wet'
    for all alcoholic beverages by the majority
    of voters at an election held under local
    option."
    In connectionwith the above quoted subparagraphs(b) and (c),
    we have previouslyquoted paragraph 5 of Article 666-15(e),
    authorizinga permit, which gave legal sanction to the practice
    of club members to store, poasess, mix, consume, and to be
    served their liquor by the drink on club premises. Through
    the "Pool System" members could thereby own their liquor serv-
    ed to them in the private olub, defined and regula.tedin sub-
    paragraph (a) of Article 666-15(e).
    -3336-
    Honorable Coke R. Stevenson, Jr., Page 8 (C-693)
    It is, therefore, the opinion of this office that by
    reason of the statutory change above noted, the previous
    opinions   and case authorities cited, as applied to the "Pool
    System", do not control the interpretationto be given to the
    new law. We fully concur in the administrativepractice and
    interpretationgiven by your Department to the new law since
    It beoame effective in 1961.    Fraternal or Veterans Clubs
    are not authorized to "sell" alcoholic beverage3 without ob-
    taining a permit to sell, but they are authorized to "serve"
    the members' liquor to them and receive a service charge
    therefor under Article 666-15(e),   through the use of the
    looker or pool system, without obtaining a permit, such meth-
    od not being deemed a sale within the ambit of the statute.
    In the summary of our Opinion No. c-622 
    (1966), supra
    ,
    which Is technicallynot a part of the Opinion, we inad-
    vertently and erroneouslyused the word selling" when we in-
    tended to use the word "serving." We, therefore,by this
    Opinion amend the Summary of Opinion No. c-622 so that It
    shall hereafter read as follows:
    "Fraternalor Veterans Clubs are exempt
    F;mCthe provisions of Article 666-15(e),
    . . ., and are not in violation thereof
    or acting illegally In serving alcoholic
    beverages to its members on its premises
    without a license or permit as provided for
    and required in such law for those not 30
    exempt from Its provision3or requirements."
    SUMMARY
    Fraternal or Veterans Clubs are
    authorized to serve alcoholic bev-
    erages already owned by a member of
    such club to such member and receive
    a service charge therefor without
    having first obtained a Private Club
    RegistrationPermit. Article 666-3
    and aragraphs (a) and (b) of Article
    666-g and Article 667-3, Vernon's
    Penal Code prohibit Fraternal or Vet-
    erans Clubs from selling liquor or
    beer to any person without first hav-
    ing obtained a license or permit to
    so sell the same. The administrative
    constructionof the law and practice
    thereunder is correct in dlstlnguish-
    ing between t-h;33egal act of serving
    Honorable Coke R. Stevenson, Jr., Page 9 (c-693)
    alcoholic beverages owned by a
    member of a club to such member
    for a service charge and the ille-
    gal act of "selling" such beverages
    owned by the club, or employee or
    agent, to any person whether a mem-
    ber or non-member for a price. The
    use of the 'Locker System" or "Pool
    System" as provided for in Article
    666-15(e), Vernon's Penal Code,
    does not constitutean Illegal "sale",
    such method being in conformityto
    and not an evasion of the statute.
    Summary of Opinion No. c-622 (1966)
    13 hereby amended a3 set out in this
    Opinion.
    Yours very truly,
    WAGGONER CARR
    Attorney General of Texas
    Assistant Attorney General
    KBT/dt
    APPROVED:
    OPINION COMMITTEE:
    W. V. Geppert, Chairman
    Gordon Cass
    Robert Flowers
    J. C. Davis
    John Pettit
    APPROVED FOR THE ATTORNEY GENERAL
    By T: B. Yright
    -3338-
    

Document Info

Docket Number: C-693

Judges: Waggoner Carr

Filed Date: 7/2/1966

Precedential Status: Precedential

Modified Date: 2/18/2017