Attorney General: Honorable James T. Fleming, Department of Consumer Protection, 2001-008 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 22, 2001

Honorable James T. Fleming
Department of Consumer Protection
165 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Fleming:

This is in response to a request for an opinion from your agency on certain provisions of the Liquor Control Act concerning package stores and cafes. The questions are restated and discussed seriatim:

1.  Must a package store be open to the public?

This question concerns a proposed package store permit for a mail order business only. If the permit were issued, the permit premises would be positioned so as not to be visible to walk-in customers and would display only one bottle per item available. Its existence would be solely to satisfy the Department’s requirement that a mail order liquor business serving Connecticut hold a Connecticut package store permit1 and the Liquor Control Act's requirement of a physical premise for each permit issued. Conn. Gen. Stat. § 30-52(a). For the following reasons, it is our opinion that a package store permit premises must be open and accessible to serve the public and this permit proposal, therefore, cannot be allowed under the circumstances described.

Conn. Gen. Stat. § 30-52(a) provides, in pertinent part, as follows: "Every permit for the sale of alcoholic liquor shall specify the town and the particular building or place in such town in which liquor is to be sold, and shall not authorize any sale in any other place or buildings." Additionally, every package store permit "shall allow the retail sale of alcohol liquor not to be consumed on the premises, such sales to be made only in sealed bottles or other containers." Conn. Gen. Stat. § 30-20(a). The term "shall" as used in the Liquor Control Act requirements, is ordinarily deemed mandatory. State v. Zazzaro, 128 Conn. 160, 20 A.2d 737 (1941). If a package store must make sales from a particular location in a specific town, the ordinary and practical interpretation of these statutory requirements is that the package store must be open to the public and be sufficiently accessible and stocked in order to do so. Common sense dictates this result. The application of any technical rule of statutory construction which would defeat so obvious an intention would be a reproach upon the law. State v. Faro, 118 Conn. 267, 272, 171 A. 660 (1934). Moreover, a package store cannot discriminate against customers, at least not on the basis of protected classes. See, Conn. Gen. Stat. § 46a-51 et seq. (Public Accommodations Act); Craig v. Boren, 429 U.S. 190 (1970) (gender discrimination).

Additionally, package stores are allowed in towns only under strict ratio law limits. Only one is allowed for every twenty-five hundred residents, and many towns have reached their limit. Conn. Gen. Stat. § 30-14a. Also, package store applications must comply with local radius rules which prohibit package stores within a certain radius of other permit premises. Karp v. Zoning Board, 156 Conn. 287, 240 A.2d 845 (1968). Thus, if a permit for a package store were granted for a premises not open to the public, it would deprive a community of a permit premises which could be operated by others interested in making such service available. Sufficiency of service in a neighborhood is a factor in determining whether a permit may be allowed in a particular neighborhood. Conn. Gen. Stat. § 30-46(a)(3) 2 See, Rivera v. Liquor Control Commission, 53 Conn. App. 165, 728 A.2d 1153 (1998).

In the instant question, it is clear that the proposed permit premises would not be serving the local community; it would not even be known to that community. Its existence would be a mere pretext to get a permit that is not allowed. Guillara v. Liquor Control Commission, 121 Conn. 441, 446, 185 A. 398 (1936).

We understand that your agency previously ruled that a package store supporting a mail order business must be open to the public. We believe that your agency is justified in continuing that requirement.

2.  When does a cafe "regularly" keep food available to its customers?

Your second question asks whether a cafe, which serves food only from 12:00 to 3:00 p.m. daily, then closes its kitchen, satisfies the requirement of Conn. Gen. Stat. § 30-22a that a cafe "regularly keep food available for services to its customers for consumption on the premises", or whether it must be reopened for dinner from 5:00 to 9:00 p.m. to satisfy this standard. For the following reasons, we believe that more information is necessary, and such questions are best answered by your agency after hearing evidence in a particular case.

The statute in question provides as follows:

Cafe permit.   (a) A cafe permit shall allow the retail sale of alcoholic liquor to be consumed on the premises of a cafe. Premises operated under a cafe permit shall regularly keep food available for sale to its customers for consumption on the premises. The availability of sandwiches, soups or other foods, whether fresh, processed, precooked or frozen, shall be deemed compliance with this requirement. The licensed premises shall at all times comply with all the regulations of the local department of health. Nothing herein shall be construed to require that any food be sold or purchased with any liquor, nor shall any rule, regulation or standard be promulgated or enforced requiring that the sale of food be substantial or that the receipts of the business other than from the sale of liquor equal any set percentage of total receipts from sales made therein. A cafe permit shall allow, with the prior approval of the Department of Consumer Protection, alcoholic liquor to be served at tables in outside areas that are not screened from public view where permitted by fire, zoning and health regulations. If not required by fire, zoning or health regulations, a fence or wall enclosing such outside areas shall not be required by the Department of Consumer Protection. No fence or wall used to enclose such outside areas shall be less than thirty inches high. The annual fee for a cafe permit shall be one thousand seven hundred fifty dollars.

(b) As used in this section, "cafe" means space in a suitable and permanent building, kept, used, maintained, advertised and held out to the public to be a place where alcoholic liquor and food is served for sale at retail for consumption on the premises but which does not necessarily serve hot meals; it shall have no sleeping accommodations for the public and need not necessarily have a kitchen or dining room but shall have employed therein at all times an adequate number of employees.

Conn. Gen. Stat. § 30-22a (emphasis added).

The instant inquiry focuses on the requirement that food be kept available "regularly". The term "regular" means "customary, usual, or normal." Webster’s II New Riverside University Dictionary (1988).

This statutory requirement has long been a part of the Liquor Control Act for cafe permit premises, but, apparently, the requirement has never been interpreted by the courts. Although, the courts have interpreted the term "regularly" in the context of restaurant permit premises which must "regularly" serve hot meals under Conn. Gen. Stat. § 30-22(e),3 there are important differences between restaurants and cafes. Restaurants, under the requirement, must regularly serve hot meals while cafes need only have food regularly available, regardless of whether they have any hungry customers. In testing compliance with this type of requirement, the courts have required your agency to evaluate whether the activity is "sufficient in nature and amount... to evidence and afford assurance of a bona fide restaurant business instead of a mere pretext for obtaining a permit to sell alcoholic liquor as a principal purpose and enterprise." Guillara v. Liquor Control Commission, 121 Conn. 441, 446 185 A. 398 (1936); see also, Leograndis v. Liquor Control Commission, 149 Conn. 507, 511, 182 A.2d 9 (1962); Melarose v. Liquor Control Commission, 123 Conn. 318, 319, 194 A.725 (1937); Neubauer v. Liquor Control Commission, 128 Conn. 113, 115, 20 A.2d 669 (1941). In Guillara, the Connecticut Supreme Court held that a restaurant met the requirement where, during the hours when a restaurant is usually open, hot meals are served to all customers ordering them. Tailoring that to fit cafes, your agency should similarly test whether a cafe permittee is making a bona fide effort to make food available. A cafe which has food available during the hours when there are cafe customers usually requesting such items, such as lunch and dinner time, satisfies the requirement. However, as expressly stated in the statute, the food need not be substantial, and the premises need not have a kitchen. In discussing 1967 Conn. Pub. Acts No. 67-365 on introduction in the House of Representatives in 1967, Rep. Mizak stated, "This bill eliminates the necessity to serve hot meals, the necessity to have a kitchen and dining room but requires that sandwiches or precooked or frozen foods be available at all times." 12 H. Proc., 1967 Sess. pt 6 at p. 2695.

The resolution of this question depends on the facts and circumstances of each case and the veracity of witnesses, an exercise best resolved by the trier of fact after hearing. See, e.g., Caffey v. Bergin, 121 Conn. 695, 183 A.16 (1936). Consequently, we recommend that your agency conduct a hearing on these questions as they arise in particular cases and that it apply the tests articulated above to the evidence gathered at hearing. Of course, the agency need not assign for hearing frivolous or meritless allegations. Conn. Gen. Stat. § 4-184a(b).

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Robert F. Vacchelli
Assistant Attorney General

RB/FRV


1Your description is as follows: "The front of the location is closed, but can be accessed through the rear entrance. The location would appear closed to the average person. There is stock on the location, but it is limited to one bottle of each item on the shelves. The location has no register, no bags, and no daily records. The premises does business via a fax machine and it appears that the purpose of the package store is to allow mail order sale of liquor."

2Conn. Gen. Stat. § 30-46(a)(3) provides; in pertinent part as follows:

(a)  The Department of Consumer Protection may, except as to a store engaged chiefly in the sale of groceries, in its discretion, suspend, revoke or refuse to grant or renew a permit for the sale of alcoholic liquor if it has reasonable cause to believe: . . . (3) that the number of permit premises in the locality is such that the granting of a permit is detrimental to the public interest, and, in reaching a conclusion in this respect, the department may consider the character of, the population of, the number of like permits and number of all permits existent in, the particular town and the immediate neighborhood concerned, the effect which a new permit may have on such town or neighborhood or on like permits existent in such town or neighborhood . . .

3Conn. Gen. Stat. § 30-22(e) provides, in pertinent part, as follows:

(e) "Restaurant" means space, in a suitable and permanent building, kept, used, maintained, advertised and held out to the public to be a place where hot meals are regularly served . . .

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