Untitled Texas Attorney General Opinion

Aw-rOHNE:Y DENER*L April 17, 1968 Honorable 0. N. Humphreys, Jr. Opinion No. M-218 Acting Administrator Texas Liquor Control Board Re: May beer be legally Capitol Station possessed by an employee Austin, Texas 78711 of a beer retailer on the latter's licensed premises in a 2 5/8 gallon con- tainer bearing the beer brand name and which has been filled from a tax paid legal-sized l/2 bar- rel of beer purchased by the beer retailer from a Dear Mr. Humphreys: beer distributor. The letter from your department requesting an opinion of this office reads, in part, as follows: "There has been created a beverage serving apparatus which would contain 2 5/E gallons of draft beer when full. It is filled by receiving a sanitary transfer of draft beer from a legal- sized, tax-paid l/2 barrel of draft beer. It contains equipment to keep the beer cold. It may be strapped on the back of a person and has an outlet hose for dispensing beer into a paper cup which may be delivered to the consumer. The brand name of the beer may be placed on the ap- paratus. "The manufacturer of this apparatus contends that it would provide a beer, retailer with a method of serving beer to huge crowds such as appear at the Astrodome in a sanitary and safe manner. . . . "It does appear to us that the apparatus would facilitate the serving of cold draft beer in a safe and sanitary manner to a large crowd - - particularly so since only paper cups which are not harmful when thrown or dropped would be used. - 1044- Honorable 0. N. Humphreys, Jr., Page 2 (M-218) "However, we wonder whether this apparatus may be used for dispensing beer by a beer re- tailer under the terms of the Texas Liquor Con- trol Act. "The term 'container' as used in Article II of the Texas Liquor Control Act is defined in Section 1, (d) of Article II of the Texas Liquor Control Act (Article 667-1, (d) of Vernon's Texas Penal Code) as follows: "'The term "container" means any container holding beer in quantities of one (1) barrel, one-half (l/2) barrel, one-quarter (l/4) barrel, one-eighth (l/8) barrel, or any bot- tle or can having a capacity of twelve (12) fluid ounces, twenty-four (24) fluid ounces, and thirty-two (32) fluid ounces, and no container of any other capacity shall be authorized.' "In Section 8 of Article II of the Texas Liquor Control Act (Article 667-8 of Vernon's Texas Penal Code) it is provided as follows: "'It shall be unlawful for any person to sell, store, possess, or transport in this State, any beer unless it be in a container as defined in Section 1 of this Article, and every such con- tainer shall bear a brand, imprint, or label showing the full name and address of the brewer or manufacturer of such beer, or the name and address of any distributor for whom a special brand is manufactured; and in the event such beer is sold or transported in con- tainers packed in any box, crate, carton, or similar device, the same information shall appear upon the outside of such package.' "In Section 3, (e) of Article II of the Texas Liquor Control Act (Article 667-3, (e) of Vernon's Texas Penal Code) it is provided as follows: (the underlining is ours) - 1045- Honorable 0. N. Humphreys, Jr., Page. 3 (M-218) "'A Retail Dealer's On-Premise License shall authorize the holder thereof to sell beer for consump- tion on or off the premises where sold, in or from any lawful con- tainer to the ultimate consumer, but not for resale. . . .' "In Section 24, (2) of Article II of the Texas Liquor Control Act (Article 667-24 (,2) of Vernon's Texas Penal Code) it is provided as follows: (the underlining is ours) "'It shall be unlawful for any re- tail dealer to dispense any draught beer unless each faucet or other dispensing apparatus is equipped with a sign clearly indicating the name or brand of the particular product being at the time dispensed through each faucet or other ..+sg&;ydsg a shall be in legib e full sight of the purchaser.' "As far as we know the above provisions of law are the only provisions relevant to our ques- tion. "This is our question: May beer be legally possessed by an employee of a beer retailer on the licensed premises of such beer retailer in a 2 5/E gallon container which bears the brand name of the beer and which has been filled from a tax-paid, legal-sized l/2 barrel of beer pur- chased by the beer retailer from a beer distri- butor? If so, may such beer be served and sold from such 2 5/8 gallon container to customers on the licensed premises?" The Texas Liquor Control Act is to be liberally construed to accomplish the express and implicit intent of the Legislature, i.e., the "exercise of the police power of the State for the pro- tection of the welfare, health, peace, temperance and safety of the people of the State." Vernon's Penal Code, Article,666-2; Texas Liquor Control Board v. Floyd, 117 S.W.Zd 530 '(Tex.Civ.App: 1938, no writ); Texas Liquor ControlBoard v. 'Super Saving Stamps Company, 303 S.W.Zd 536 (Tex.Civ.App. 1957, no writ). - 1046 - Honorable 0. N. Humphreys, Jr., Page 4 (M-218) It is the opinion of this office that Article II, Section 1, (d) of the Texas Liquor Control Act was passed to standardize the containers in which beer could be merchandised and sold by the brewery to the retail outlet. This standardization provides a method whereby the tax that is to be levied on the beer and the appropriate standardized tax stamp may be affixed upon the con- tainer when a first sale is made within this State. The legis- lative intent appears to be to regulate the containers that may be sold, stored, passed or transported by the brewery or whole- saler of beer. We find no legislative intent to prohibit a Retail Dealer's On-Premise licensee from using an ~apparatus such as you describe to assist him as an intermediate step in dispensing and serving beer from a legal container purchased from the distributor. Therefore, it is the opinion of this office that beer may be legally possessed for the purpose of dispensing by an employee of a Retail Dealer's On-Premise licensee on the licensed premises of the licensee in a 2 5/8 gallon container which bears the brand name of the beer and which has been filled on the licensed premises by the licensee or his agent from a tax-paid, legal- sized container of beer purchased by the licensee from a beer distributor. It is the'further opinion of this office that such beer may be served and sold by the Retail Dealer's On-Premise li- censee or his agent from the 2 S/8 gallon container to customers on the licensed premises under the aforesaid circumstances. SUMMARY~. Beer may be legally possessed forthe purpose of dispensing by an employee of a Retail Dealer's On-Premise Licensee on the licensed premises of the licensee in a 2 5/E gallon container which bears the brand name of the beer and which has been filled on the licensed premises by the licensee or his agent from a tax-paid, legal-sized~l/2 barrel of beer purchased by the licensee from a beer dis- tributor. Beer may be served and sold by the Re- tail Dealer's On-Premise licensee or his agent from the 2 5/E gallon container to customers on the li- tensed premises. truly yours, neral,of:Tsxas Honorable 0. N. Humphreys, Jr., Page 5 (M-218) Prepared by Douglas H. Chilton Assistant Attorney General DHC/dt APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W. V. Geppert Monroe Clayton Harold Kennedy Pat Bailey A. J. CARUBBI, JR. Executive Assistant - 1048 -