Could a South Carolina beer wholesaler give a retail permit holder a refrigerator for juice or water in 1995?

Plain-English summary

A legislator asked whether a licensed beer wholesaler could provide cooling or refrigerated equipment to a retail beer permit holder when the equipment would hold juice or water instead of beer. In April 1995, the Attorney General's office said no. It read Section 61-9-315's ban on furnishing any equipment to a retailer as applying regardless of the proposed non-beer use.

The opinion noted that the statute expressly allowed a short list of replacement draft-beer parts, temporary party wagons, advertising items and specified services. Refrigerators and coolers were not on that list. The office treated the listed exceptions as deliberate and refused to add one based on the purpose for which the retailer planned to use the equipment. The same statute barred the retailer from accepting prohibited equipment.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Beer wholesalers

Under the 1995 statute as the office read it, a wholesaler could not give, rent, lend or sell a refrigerator or cooler to a retail permit holder. The opinion found no exception for using the equipment to display juice or water.

Retail beer permit holders

The letter said the prohibition worked on both sides: the retailer could not accept equipment barred by the statute, except for the items and services specifically permitted in subsection (C).

Common questions

Could the wholesaler avoid the ban by calling the cooler a juice refrigerator? No. The opinion said the statute did not make the equipment's intended use a basis for allowing the transfer.

Did the law contain any equipment exceptions?
Yes. The office identified the statute's limited list of nominal-value draft-beer replacement parts, temporary party wagons and advertising items, along with certain services. It said cooling equipment was not included.

Could a retail beer permit holder accept the wholesaler's refrigerator? No under the 1995 reading. The letter said subsection (D) also barred a retailer from accepting equipment prohibited by subsection (B).

Background and statutory framework

The letter interpreted Section 61-9-315, the beer industry's three-tier separation rule. It emphasized the words covering any equipment provided directly or indirectly, and it read the listed exceptions narrowly. The specific request concerned refrigerators offered for non-beer drinks; the office answered that factual example rather than deciding every possible vendor arrangement.

Citations and references

• Section 61-9-315: restrictions and enumerated exceptions for equipment and services passed between beer wholesalers and retailers.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-10-1995-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995apr10fulmer.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CO'.'\DON
ATTORNEY GEl'.'ERAL

April I 0, 1995

The Honorable Ronald C. Fulmer
Member, House of Representatives
320C Blatt Building
-Columbia, South Carolina 29211
Dear Representative Fulmer:
By your letter of March 30, 1995, you inquire whether a licensed beer wholesaler may furnish equipment to the holder of a retail beer permit. You reference South Carolina's so-called "three tier" beer law, see, S.C. Code Ann. Section 61-9-315, which prohibits the giving, renting, lending or selling of any equipment between the three tiers of the beer industry (brewer, wholesaler, retailer). Specifically, you note that:
[t]here has been an outbreak in what I consider to be violations of this law. Some wholesalers are giving cooling and refrigerated equipment for the purpose of placing juices and or waters in them. The law did not provide any exceptions. My feeling is that if they are licensed beer wholesalers, any equipment is prohibited regardless of what it is used for. Section 61-9-315 specifies in pertinent part:
... (B) A manufacturer, brewer, importer, or wholesaler of beer, or anyone acting on their behalf, shall not furnish, give, rent, le!_ld, or sell, directly or indirectly, to the holder of a retail permit any equipment, fixtures, free beer or service.

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(C) Notwithstanding subsection (B), a wholesaler may
furnish at no charge to the holder of a retail permit draft beer equipment replacement parts of nominal value, including RE\1BLR1 C, Dr'\'-lS Bt-iLD:,1;

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The Honorable Ronald C. Fulmer
Page 2
April I 0, 1995
washers, gaskets, hoses, hose connectors, clamps, and tap markers, party wagons for temporary use, and point of sale advertising specialties. A wholesaler may also furnish the following services to a retailer: cleaning draught lines, setting boxes, rotating stock, affixing price tags to beer products and building beer displays. (D) The holder of a retail permit, or anyone acting on his behalf, shall not accept, directly or indirectly, any equipment, fixtures, free beer, or service referred to in subsection (B) from a manufacturer, brewer, importer or wholesaler of beer except as provided in subsection (C). In interpreting any statute, the primary purpose is to ascertain the intent of the Legislature. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Where a statute is clear and unambiguous, its terms must be given their literal meaning. Crown Cork and Seal Co .. Inc. v. S.C. Tax Comm., 302 S.C. 140, 394 S.E.2d 315 (1990). It is the duty of a court to give an unambiguous statute effect according to the clear meaning of its language. Helfrich v. Brasington Sand and Gravel Co., 268 S.C. 236, 233 S.E.2d 291 ( 1977). A statute which is remedial in purpose must be broadly construed to fully effectuate its purpose. South Carolina Dept. of Mental Health v. Hanna, 270 S.C. 210, 241 S.E.2d 563 (1978). Pursuant to the South Carolina Constitution, Art. VIII-A, Sec. 1, the General Assembly possesses plenary power to regulate alcoholic beverages in this State. By enacting the "three tier" law, the Legislature has expressed its desire that the sale and transfer of beer within South Carolina is comprehensively regulated. Moreover, the General Assembly has made it abundantly clear in Section 61-9315(B) that a beer wholesaler "or anyone acting on their behalf" shall not "furnish, give, rent, lend, or sell, directly or indirectly, to the holder of a retail permit any equipment, fixtures, free beer or service." (emphasis added). Such may not be done either "directly or indirectly." Through its use of the word "shall", the Legislature made this proscription mandatory, in keeping with the fundamental purpose of the comprehensive "three tier" legislation. S.C. Police Officers Retirement System v. City of Spartanburg, 301 S.C. 188, 391 S.E.2d 239 (1990). By its use of the word "any", the Legislature meant to make this proscription all-encompassing. Furthermore, so as to leave no doubt, the Legislature reiterated the identical prohibition in Subpart (D) as applied to the retailer; just as the manufacturer, brewer importer or wholesaler is forbidden from providing equipment, etc. to the retailer, the latter may not accept such.

The Honorable Ronald C. Fulmer
Page 3
April I 0, 1995
In addition, the Legislature carefully enumerated certain exceptions in subpart (C), including washers, gaskets hoses, hose connectors, champs and tap markers, among others. Nowhere, however, is cooling and refrigerated equipment mentioned in the list of exceptions. As we have stated previously, in construing another statute regarding beer and wme,
... where the General Assembly has expressly authorized a particular course of conduct or activity, this express authorization is intended to exclude activities or conduct that is not expressly mentioned. This rule is commonly referred to as "expressio unius est exclusio alterius." Little v. Town of Conway, 171 S.C. 27, 171 S.E. 447 (1933). This rule of statutory construction is applied to statutory provisions, such as Section 61-9-180, that prescribe or authorize a particular form of conduct and the persons and things to which it infers. Sutherland, Statutory Construction, Sec. 47.23. Further, this rule is a product of 'logic and common sense.' It expresses the learning of common experience that when people say one thing they do not mean something else. Id. Sec. 47.24. Op. Atty. Gen. , July 3, 1991. Likewise, our Court of Appeals has also emphasized the significance of the Legislature's specification of exceptions in a statute: Under the rule, exceptions made in a statute give rise to a strong inference that no other exceptions were intended. Pa. Nat. Mut. Cas. Ins. Co. v. Parker, 282 S.C. 546, 320 S.E.2d 458 (Ct. App. 1984). Finally, the argument has been made that the purpose here is not to violate the proscription of the "three tier" law, but simply to provide "water cooler" products or services to a retailei:. However, I agree with you that this argument is not persuasive. Section 61-9-3 I 5 does not specify nor suggest that the provision of equipment to a retailer by a brewer, manufacturer or wholesaler is, in certain instances, permissible, depending upon the purpose for which it is done. Instead, the statute proscribes "any" equipment from being given or provided, with certain limited exceptions, not relevant here. Where the statute is clear and unambiguous, as this one is, there can be no room for doubt.

The Honorable Ronald C. Fulmer
Page 4
April 10, 1995
In summary, I agree with you that a beer wholesaler's giving or providing of cooling and refrigerated equipment to a retailer for the purpose of placing juices and or waters in them is clearly proscribed by Section 61-9-315.

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