STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5889

April 29, 1981

LIQUOR CONTROL:

Approval of tavern licenses

Effect of elector disapproval of sale of spirits on premises

A referendum disapproving the sale of spirits on the premises does not limit consideration and approval by a city's legislative body of applications for tavern licenses for selling beer and wine on the premises.

Honorable Joseph Forbes

State Representative

Capitol

Lansing, Michigan

You have asked me to respond to a request from the City Attorney of the City of Oak Park, who asked me whether the legislative body of the City of Oak Park may consider and approve applications for tavern licenses.

From the information supplied with your question, it appears that two referendums have been held in the City of Oak Park. The first election was held on November 2, 1954 and the second election was held on November 8, 1966. Each referendum was on the following question:

The language used in the referendum is prescribed by 1933 Ex Sess PA 8; MCLA 436.1 et seq; MSA 18.971 et seq, Sec. 56, which provides, in part, as follows:

In each election a majority of Oak Park voters voted against 'the sale of spirits for consumption on the premises in addition to beer and wine.' After the second referendum, the city council adopted a resolution on November 21, 1966, going beyond the issue which could be voted upon by the people of Oak Park, such resolution stating that the city would refrain from considering any applications for a license which would allow for the sale of either beer, wine or spirits for consumption on the premises. To resolve your question it must be determined whether the actions of the city electors and the city council prohibit the city from considering and approving a tavern license which would permit the holder thereof to sell beer and wine for consumption on the premises. Oak Park, of course, remains bound by the negative vote of its citizens with regard to the sale of 'spirits . . . in addition to beer and wine.'

Const 1963, art 4, Sec. 40, provides, in part:

It should be noted that the last sentence of Const 1963, art 4, Sec. 40, expressly applies to a 'county' as distinguished from a 'city.'

In Oppenhuizen v Zeeland, 101 Mich App 40; ---- NW2d ----, application for leave to appeal pending in the Michigan Supreme Court, (1980), the Court of Appeals reviewed an ordinance adopted by the City of Zeeland which prohibited the sale of all alcoholic liquor by all types of licensees within the City. The Court held:

1933 Ex Sess PA 8, supra, Sec. 57, specifically sets forth the procedure for an election to vote on one or more propositions prohibiting the manufacture, the sale or the manufacture and sale of alcoholic liquor in a county. The electors of Oakland County, in which the City of Oak Park is located, have not voted to prohibit any of these activities. Therefore, it must be concluded that the sale of alcoholic liquor is permitted in Oakland County, including the City of Oak Park.

In accordance with Const 1963, art 4, Sec. 40, supra, the Legislature created the Liquor Control Commission, with sole control over alcoholic liquor, by 1933 Ex Sess PA 8, supra. 1933 Ex Sess PA 8, supra, Sec. 1, states, in part, as follows:

It should be noted that the Liquor Control Commission's authority over the sale of alcoholic liquor is limited by statute. See Terre Haute Brewing Co, Inc. v Liquor Control Commission, 291 Mich 73; 288 NW 339 (1939). In this respect, pursuant to 1933 Ex Sess PA 8, supra, Sec. 17, the City of Oak Park must approve any application for a license to sell alcoholic liquor for consumption on the premises, including a tavern license, prior to its issuance by the Commission. Although in this section the Legislature granted cities, villages or townships authority over who may be licensed to sell alcoholic liquor for consumption on the premises within their respective boundaries, neither this section nor any other provision in 1933 Ex Sess PA 8 grants a city the authority to prohibit all sales of alcoholic liquor for consumption on the premises. The question still remains as to what effect the two referendums conducted in the City of Oak Park have on the possible issuance of a tavern license.

Alcoholic liquor, the terms 'beer,' 'wine' and 'spirits', as used in the Act, are defined in 1933 Ex Sess PA 8, supra, Sec. 2, which provides as follows:

1933 Ex Sess PA 8, supra, therefore, makes a distinction between alcoholic liquor which is all-inclusive and the individual types of alcoholic liquor such as beer, wine and spirits. The Michigan Court of Appeals in Steis v Liquor Control Commission, 28 Mich App 358, 360; 184 NW2d 364, 365 (1970), supports this conclusion wherein it held:

This distinction is evident in 1933 Ex Sess PA 8, Sec. 56, supra, wherein it states:

The Michigan Supreme Court, in Liquor Control Commission v Fraternal Order of Eagles, 286 Mich 32; 281 NW 427 (1938), also drew this distinction when it held that spirits, being a separate beverage, may be sold for consumption on the premises by a club licensee licensed to sell beer and wine for consumption on the premises without local approval.

It is apparent from the language expressed in 1933 Ex Sess PA 8, Sec. 56, supra, that the Legislature intended city, village or township control, by way of referendum, on the question of whether or not spirits, 'in addition to beer and wine' for consumption on the premises should be allowed. Clearly the Legislature did not intend the local referendum to control the decision regarding permission to sell beer and wine for consumption on the premises. If it had, such intention could have easily been expressed by use of the conjunctive 'and' between the three types of alcoholic beverages. However, this did not occur but instead the words 'in addition to' were employed to denote that 'something is added to what preceded it.' ⁽¹⁾

Thus, it must be concluded that when the Legislature required a city, village and township referendum on the question of spirits for consumption on the premises in addition to beer and wine (for consumption on the premises), the Legislature indicated that beer and wine (for consumption on the premises) was permitted and the vote was only to authorize spirits in addition thereto. This conclusion finds support by a review of 1933 Ex Sess PA 8, Secs. 18a and 19e.

1933 Ex Sess PA 8, supra, Sec. 25, defines tavern to mean:

When 1933 Ex Sess PA 8, Sec. 56, supra, is read in conjunction with Sections 1 and 56, supra, this section requires a city, by referendum of its electors, to approve the sale of spirits in addition to beer and wine for consumption on the premises before such sales are permitted. From the results of the referendums held in the City of Oak Park, it may be concluded that the voters refused to allow the sale of spirits for consumption on the premises. However, the referendums did not, because pursuant to statute they could not, prohibit the sale of beer and wine for consumption on the premises because they are treated separately from spirits in 1933 Ex Sess PA 8, supra. Neither 1933 Ex Sess PA 8, Sec. 56, supra, nor any other section of the Act allows a city, by referendum, to completely ban the sale of beer and wine for consumption on the premises.

Therefore, it is my opinion that the two referendums, while prohibiting the sale of 'spirits . . . in addition to beer and wine' on the premises could not limit consideration by, and approval of, the Oak Park City Council of applications for tavern licenses for selling beer and wine for on premise consumption, subject to the approval and issuance of such licenses by the Liquor Control Commission. It should be noted, however, that the City of Oak Park may consider and approve less than the maximum number of licenses permitted under 1933 Ex Sess PA 8, Sec. 17, supra. See Fuller Central Park Properties v City of Birmingham, 97 Mich App 517; 296 NW2d 88 (1980).

Frank J. Kelley