Attorney General: William W. Sullivan, Department of Liquor Control, 1991-022 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 7, 1991

William W. Sullivan
Chairman
Department of Liquor Control
165 Capitol Avenue
Hartford, CT 06106

Dear Chairman Sullivan:

The issue in this request for opinion is whether the census data, received by the state on January 24, 1991, constitutes "the most recently completed decennial census" within the meaning of Conn. Gen.. Stat. 30-14a. That statute, known as the Package Store Ratio Law, establishes a formula allowing issuance of new package store permits in towns based on the results of the decennial census. The statute provides as follows:

The department of liquor control shall not issue any package store permit for a period o five years from June 8, 1981, but may renew any such permit issued prior to said date and may allow the removal of premises operated under any such permit prior to said date. The provisions of this section shall not apply to any permit for which application was made to the department prior to June 8, 1981. A package store permit premises may be removed, or the permit may be renewed, by the person to whom it was issued or by any person who is a transferee or purchaser of premises operating under a package store permit and who meets the requirements of this chapter concerning eligibility for a liquor permit. Commencing five years after June 8, 1981, the department may issue one package store permit for every twenty-five hundred residents of a town as determined by the most recently completed decennial census. The department may authorize the holder of such permit to remove his permit premises to a location in another town provided such removal complies with the provisions of this chapter.

Conn. Gen.. Stat. 30-14a (Emphasis added).

For the following reasons, we believe that the January 24, 1991 data constitute the completed census for purposes of the Package Store Ratio Law.

By way of background, the legislative history of the Ratio Law demonstrates that it was enacted as apart of a package of revisions to the Liquor Control Act, the centerpiece of which was the elimination of minimum price markups to make the industry more price competitive, benefiting the consumer and generating increased sales tax revenues to the State of Connecticut. 1981 Conn. Pub.. Acts No. 81-294; Remarks of Rep. Carragher, 24 H. Proc. 1981 Sess. Pt. 5 at 1484-1491 As a counterweight to address the concern that the new competition would devour previously protected small businesses, the legislature imposed a five-year moratorium on the issuance of new package store permits (which moratorium expired in 1986) and thereafter additional permits would be allowed in eligible towns under the Ratio Law only if the population grew by 2,500 people. Remarks of Sen. Mustone, 24 S. Proc. 1981 Sess. Pt. 10 at 3403-3407. The increment of population eligible for an additional license is a full 2,500 persons, not a fraction thereof. 87 Conn. Op. Atty. Gen. 239 (19897). By its plain language, the statute measures population using the decennial census, which is taken once every ten years. U.S. Const. Art. I, Sec. 2.

As reported in the opinion request, on January 24, 1991, the state received from the federal Bureau of the Census the "official population counts" derived from the 1990 decennial census. However, in a cover letter accompanying those data, Barbara Everitt Bryant, Director of the federal Census Bureau, indicated, "As required by Stipulation and Order in t he New York adjustment litigation, these population counts are subject to possible correction for undercount or over count." See Cover Letter and Census Data, Attachment A. director Bryant's letter recited that corrected counts, if any, would be published no later than July 15, 1991. Id. The Stipulation and Order referenced was entered in City of New York, et al. v. Untied States Department of Commerce, et al., No. 88 Civ. 3474 (J McL) (E.D.N.Y. July 17, 1989), Attachment B. Corrected counts, if any, would involve all states, not just New York. Id. Several practical problems arise from this circumstance. For example, if the official figures are used and later adjusted, permit allowances might have to be changed. On the other hand, if the Department waits until July 15 for possible corrections, there is no guarantee that those figures will not be the subject of further litigation and delay pursuant to paragraph 11 of the New York adjustment litigation stipulation. Id. Moreover, package store license applicants are not permitted to maintain applications on a waiting list pending census results. 87 Conn. Op. Atty. Gen., supra. Clearly, shifting eligibility dates and drifting population counts would cause much confusion and might result in voidance of permits issued under incorrect data. Cf. Kopp v. Stat, 100 Idaho 160, 595 P.2d 309 (1979).

There is no specific federal statutory provision with reference to the time when a census becomes final, only that basic tabulations of population shall be "completed, reported and transmitted to each respective state within one year after the decennial census date", i.e. by April 1, 1991. 13 U.S.C. 141(c). The Census Bureau considers the data supplied on January 24, 1991 as fulfilling the requirements of 13 U.S.C. 141(c). See Letter from Census Redistricting Chief Marshall L. Turner, Jr. dated February 28, 1991, Attachment C. Across the nation, in various types of legislation which reference the results of the census, the effective date of the census is critical. The conclusions of the courts in identifying that date typically turn on the language of the state statute involved. See generally, Anno. 100 A.L.R. 2d 1353.

The leading case in Connecticut involved the redistricting formula in Conn. Const., Amend. XXXI, Sec. 2 (1901) which referenced decennial census data from the "completion of the next census". The court there concluded that once the census figures are broken down into counties, towns, wards, etc. and are released to the public by an authorized official, the census is completed for all practical purposes, notwithstanding the likelihood of subsequent adjustments. Cahill v. Leopold, 141 Conn. 1, 11-13, 103 A.2d 818 (1954) overruled (on other grounds), Butterworth v. Demsey, 229 F.Supp. 754, 760 (D. Conn. 1964); accord State of New Jersey v. Apportionment Commission, ___ N.J. ___, ___ A.2d ___ Nos . A-170o/174/175 (N.J. Sup. Ct. February 27, 1991), Attachment D; City of Rochester v. Monroe County, 114 Misc. 2d 191, 451 N.Y.S. 2d 359 (1982) aff'd 93 A.D. 2d 625, 462 N.Y.S. 2d 359 (1983); City of Detroit v. State Comm'r of Revenue, 330 Mich. 239, 47 N.W. 2d 4 (1951).

The language of the Package Store Ratio Law, referencing the "most recently completed" decennial census, is substantially the same as the pertinent language construed in the Cahill case and we find no significance in the difference in phrasing. The data supplied by the Census Bureau, described as official and completed by t hat agency, contains the break down by towns necessary for the Package Store Ratio Law and it satisfies the Cahill test. Thus, we conclude that the 1990 decennial census was completed when the Bureau of the Census issued, and the State of Connecticut received, the official population counts for all jurisdictions in Connecticut which occurred on January 24, 1991. These figures should be sued for determining package store eligibility until the 2000 decennial census is completed.

We acknowledge that the data supplied by the Census Bureau may change in the future, either as a result of the New York litigation, or as a result of any challenges permissible under 15 C.F.R. 90.1 et seq ., or pursuant to any current data release or special census issued pursuant to 13 U.S.C. 181 or 196. Whether any such changes will affect the number of permits eligible to be issued under Conn. Gen. Stat. 30-14a is speculative. Nevertheless, the completion date requires identification. In this regard, had the Connecticut General Assembly intended to recognize adjustments emanating from the Census Bureau, it could have written such a statute. See e.g. , Kopp v. State, supra (Liquor licenses issued based upon last preceding census, or any subsequent special census, be it decennial, biennial or annual). It did not, and we cannot, by interpretation, amend the law. That is a legislative function. Danbury v. Corbett, 139 Conn.. 379, 384, 94 A.2d 6 (1953).

For all the foregoing reasons, we believe that the January 24, 1991 data constitute the completed census for purposes of the Package Store Ratio Law.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL


Robert F. Vacchelli
Assistant Attorney General

RB/RFV/td


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