STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5963

August 20, 1981

LIQUOR CONTROL:

Halls operated by commercial establishments selling food

Halls with food service operated by unions, fraternal organizations and churches as commercial establishments selling food

Alcoholic beverages may not be brought into unlicensed halls operated by commercial establishments seling food.

Alcoholic beverages may be brought into unlicensed halls furnishing food service operated by nonprofit unions, fraternal organizations and churches provided that no additional consideration is charged by such organization for the privilege of bringing alcoholic beverages on the premises.

Honorable Thomas Guastello

State Senator

State Capitol

Lansing, Michigan

You have made inquiry as to the effect of the Michigan Liquor Control Act, 1933 Ex Sess PA 8, Sec. 26c; MCLA 436.26c; MSA 18.997(3), as amended by 1980 PA 185, on allowing alcoholic beverages to be brought by patrons into catering halls, union halls, fraternal and church halls selling and serving food.

Prior to amendment by 1980 PA 185 effective July 2, 1980, 1933 Ex Sess PA 9, Sec. 26c, provided:

The above section was amended by the Legislature by 1980 PA 185, supra, following the decision by the Court of Appeals in Moraco v Wayne County Prosecutor, 98 Mich App 322; 296 NW2d 246 (1980). The Moraco case, supra, revising a Wayne County Circuit Court Declaratory Judgment, held that Moraco, owner of a French restaurant, could allow patrons to bring upon the premises wine which they could consume from plaintiff's glasses in conjunction with dinner served by the restaurant. The Court reasoned that the prohibitions of Section 26c, supra, were not violated because the plaintiff received no consideration for furnishing patrons with a place to consume alcohol. The Court held:

Although there may be some question as to whether the element of serving alcoholic drinks 'after normal, legal, closing hours' is necessarily included in the definition of a 'bottle club,' there is not much doubt that the prohibition as set forth in the Beacon case, supra, still applies to 'bottle clubs' in this State as defined in Beacon, supra, and elsewhere. The definition of a 'bottle club,' as set forth in Webster's Third New International Dictionary is:

In any event, the Beacon Club case, supra, did not involve 'after hours drinking,' but the issue was whether the 'Club' could furnish premises for hire whereon alcoholic beverages are stored or consumed.

In the next month following the decision in Moraco, supra, the Legislature amended 1933 Ex Sess PA 8, Sec. 26c by means of 1980 PA 185, to read:

Thus, with regard to 'promoting' the use of alcohol for a consideration as analyzed in the Moraco, supra, there is no longer any doubt that 1933 Ex Sess PA 8, Sec. 26c(2), supra, as now amended, prohibits consumption of alcoholic beverages in every commercial establishment selling food that is not licensed. A catering hall which sells and serves food for profit is a commercial operation and clearly comes under the prohibition.

Bona fide nonprofit organizations, whether union, church or fraternal, may qualify to obtain 'club' licenses, regardless of the quota for regular Class C licenses in the community. Of course, such licenses must be used only for the benefit of the members. Also, qualifying nonprofit organizations may obtain a special one day license to serve the general public.

It is understood, however, that unions, fraternal organizations and churches frequently make halls, with food service therein, available to the public for various special occasions such as wedding receptions and graduation parties and, of course, the income that is received therefrom goes to the benefit of the particular nonprofit organization which, in itself, does not make such organization a commercial establishment. Applying the rationale of the Moraco case, supra, to the case where food is being served by a nonprofit organization, as distinguished from a commercial establishment serving food, as long as there is no additional payment exacted for the food because the patron brings in wine or other alcoholic beverages to be consumed with the meal, there would also be no prohibition under 1933 Ex Sess PA 8, Sec. 26c, supra.

It is my opinion, therefore, that unlicensed catering halls, which are commercial establishments selling food, are specifically prohibited from permitting alcoholic beverages to be brought on the premises. It is further my opinion that nonprofit organizations, operating as union halls, fraternal and church halls may permit alcoholic beverages to be brought into such halls furnishing food service by persons attending, provided no additional consideration is charged by such organizations for the privilege of bringing the alcoholic beverages to the hall.

Frank J. Kelley