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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6455 July 22, 1987 BOTTLES AND BOTTLING: Redemption of returnable beverage containers by distributor A distributor may not refuse to redeem returnable beverage containers from a dealer when the containers are of the same kind, size and brand sold by the distributor, regardless of the quantity of containers to be redeemed. Honorable Michael J. O'Brien State Senator The Capitol Lansing, Michigan You have asked whether, under the provisions of the 1976 PA Initiated Law, MCL 445.571 et seq; MSA 18.1206(11) et seq, a distributor delivering beverages in beverage containers is required to pick up all empty containers or only the same number of empty containers as the number of full containers being deliv-ered. Section 2(6) of 1976 PA Initiated Law, MCL 445.572; MSA 18.1206(12), states: "A distributor shall not refuse to accept from a dealer an empty returnable container of any kind, size, and brand sold by that distributor, nor refuse to pay to the dealer its full refund value in cash, except as provided in subsection (7)." "Dealer" and "distributor" are defined in Sec. 1 of 1976 PA Initiated Law, MCL 445.571; MSA 18.1206(11), as follows: "As used in this act: ".... "(g) 'Dealer' means a person who sells or offers for sale to consumers within this state a beverage in a beverage container, including an operator of a vending machine containing a beverage in a beverage container. ".... "(i) 'Distributor' means a person who sells beverages in beverage containers to a dealer within this state, and includes a manufacturer who engages in such sales." In pertinent part, as last amended by the Legislature by 1986 PA 235, 1976 PA Initiated Law, Sec. 2, sets forth the requirements which a distributor must observe in regard to refunds of deposits and the pick up of returnable beverage containers. Although Sec. 2(10) contains a limitation upon the number of containers a consumer may redeem from a dealer each day, no limit on the number of containers which a dealer is required to redeem is mentioned. Other defining information of the same nature, such as size, kind, and brand is clearly indicated. Rules of statutory construction provide that where some items are included by specific mention, such as size, kind, and brand, other similar items, such as quantity, must be treated as having been intentionally excluded. Ficano v. Lucas, 133 Mich App 268, 275; 351 NW2d 198 (1983). Additionally, the word "shall" is used in the statute with regard to the duties of a distributor. "Shall" generally is used to state a mandatory provision, while "may" designates a provision which grants discretion. Law Dept Employees Union v City of Flint, 64 Mich App 359, 368; 235 NW2d 783 (1975). Taken together, these sections and rules of statutory construction indicate that a distributor is required to pick up from a dealer empty returnable containers of any kind, size, and brand sold by the distributor without regard to quantity. It is my opinion, therefore, that a distributor may not refuse to redeem returnable containers from a dealer when such containers are of the same kind, size and brand as those sold by the distributor, regardless of the quantity of containers to be redeemed. Frank J. Kelley Attorney General
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