Could someone build and display a working water-distillation unit in South Carolina without alcohol-still restrictions?

Plain-English summary

The South Carolina Attorney General did not issue a blanket approval to fabricate, transport, and display working water-distillation units. It reaffirmed a 1974 AG opinion about a model liquor still because state and federal law continued to restrict apparatus that could be used to make alcoholic liquor. The office said the person proposing the units could ask the responsible authorities about the proposal or, if possible, make the units incapable of distilling spirits.

The opinion also explained a limit on its answer: deciding a particular person's legal liability was outside the usual scope of an AG opinion. Its discussion of the statutes and earlier opinion did not supply a permit or an individualized immunity determination.

Currency note

This opinion was issued in 2013. 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.

Common questions

Q: Did calling a working still a “water-distillation unit” settle whether it was lawful? A: No. The opinion focused on whether the apparatus could be used to manufacture alcoholic liquor and noted state and federal restrictions on such equipment.

Q: Did the AG give written permission to build or display the units? A: No. The opinion reaffirmed earlier advice to approach the relevant authorities about the proposed fabrication and display.

Q: What did the opinion say about a model that could not distill alcohol? A: It repeated the earlier opinion's suggestion that making the model incapable of distilling spirits might resolve the concern. It did not decide the legality of any particular design.

Background and statutory framework

A legislator asked about a constituent's proposed working units. The AG cited S.C. Code Ann. § 61-6-4100 (2009), which addressed stills and other apparatus for manufacturing alcoholic liquor, and federal still-registration requirements including 26 U.S.C. § 5179(a). The office concluded that those continuing restrictions were reason to retain its 1974 analysis.

Citations and references

The opinion cites S.C. Code Ann. § 61-6-4100 (2009) and 26 U.S.C. § 5179(a) in its discussion of state and federal restrictions.

Official title

Regarding the fabrication, transport and display of working water distillation units.

Requester

The Honorable Murrell Smith, District No. 67-Sumter-Clarendon Counties

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-25-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/smith-m-os-9691-11-25-13-working-water-distillation-units.pdf

Original opinion text

ALAN WILSON
A TIORNEY GENERAL

November 25, 2013

The Honorable Murrell Smith
District No. 67-Sumter-Clarendon Counties
420-B Blatt Building
Columbia, SC 29211
Representative Smith:
By your letter dated October 22, 2013, you have asked for the opinion of this Office regarding the fabrication, transport and display of working water distillation units. Per your letter you explain a constituent, Mr. Sid Singleton, owns a steel fabrication company in Sumter and, as a result of numerous inquiries, has started fabricating water distillation units for both display and sale. Continuing, you state that during the fabrication process, Mr. Singleton was advised "that there may be some special laws and/or regulations" regarding distillation units as they can be used as liquor and/or beer distilleries. Your further indicate, "Mr. Singleton wants to make sure that he is not running afoul of any Federal or State Laws or Regulations" and have attached a letter in which Mr. Singleton asks us to advise him on what is required in order to
·acquire written permission to fabricate, transport and display water distillation units. Our response follows. Law/Analysis As an initial matter, we note Mr. Singleton's question appears to involve a request for legal advice as opposed to a legal opinion, and thus could be construed as outside of the scope of the questions typically addressed by this Office. See Op. S.C. Atty. Gen., 2013 WL 3960434 (July 19, 2013) (explaining that questions related to legal liabilities of an entity are questions of legal advice and are outside of the scope of an opinion request). Nevertheless, we will address this issue by providing a previous legal opinion on a similar matter and discussing what we believe to be the relevant legal authorities. As indicated above, a similar issue was previously addressed by this Office in 1974. Op. S.C. Atty. Gen., 1974 WL 27958 (September 17, 1974). In our 1974 opinion, which relates to the display and construction of a prototype liquor still, we noted South Carolina law "makes it unlawful to manufacture a still or any other similar device to be used for the purpose of making REMBERT c. DENNIS BUILDING • POST OFFICE Box l 1549 • COLUMBIA SC ?921 l 1549 '
•
.• TELEPHONE 803-734-3970 • FACSIMILE 803-251-6?R1

The Honorable Murrell Smith
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alcoholic liquors." Id. Wy further explained that federal law "requires the issuance of a permit prior to setting up a still, the registration of a still" and imposes "criminal penalties" for failing to comply with such requirements. Id. As a result, our 1974 opinion concluded, "[i]t would be advisable to approach both the Federal Bureau of Alcohol, Tobacco and Firearms and the State Alcoholic Beverage Control Commission with your proposal and learn what specific objections, if any, either has to the construction of a 'model' still which will not be used for distilling purposes." Id. We further advised, "[a]lthough I cannot speak for either agency, it is possible that these questions might be resolved if your 'model' still is constructed in a manner so as to be incapable of distilling spirits." Id. We now reaffirm our previous opinion because, while the law has been revised insofar as the relevant versions of both the South Carolina and United States Code have been updated, state and federal law continue to place restrictions on distillation units that could be utilized to manufacture alcohol, and as such, our advice remains the same. See Op. S.C. Atty. Gen., 2013 WL 3762706 (July 1, 2013) ("[W]e stand by our previous opinion regarding this issue since this Office will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law."); Op. S.C. Atty. Gen., 2009 WL 959641 (March 4, 2009) ("This Office recognizes a long-standing rule that we will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law."); Op. S.C. Atty. Gen., 2006 WL 2849807 (September 29, 2006) (same); Op. S.C. Atty. Gen., 2005 WL 2250210 (September 8, 2005) (same); Op. S.C. Atty. Gen., 1986 WL 289899 (October 3, 1986) (same); Op. S.C. Atty. Gen., 1984 WL 249796 (April 9, 1984) (same). Similar to Section 4-97 of the 1962 version of the South Carolina Code, which was relied upon in-our 1974 opinion, Section 61-6-4100 of the South Carolina Code states, "[i]t is unlawful for a person in this State to manufacti.ire, sell, give, or have in his possession a distillery, commonly called a still, or any integral part of a distillery, or an apparatus, appliance, device, or substitute therefor to be used for the purpose of manufacturing alcoholic liquors, in violation of the laws of this State." S.C. Code Ann. § 61-6-4100 (2009). Section 61-6-4100 further adds, "[t]he unexplained possession of any part of a still, apparatus or appliance, or any device or substitute therefor, commonly or generally used for or that is suitable to be used in the manufacture of prohibited alcoholic liquors is prima facie evidence of the violation of this section." S.C. Code Ann. § 61-6-4100. Thus to summarize, South Carolina law still prohibits the manufacture, sale and possession of an apparatus which could be used "for the purpose of manufacturing alcoholic liquors" and "the unexplained possession" of such a unit is, under state law, "prima facie evidence" of a violation of state law. S.C. Code Ann. § 61-6-4100. 1

Moreover, federal law also continues to place restrictions on stills. For example, Chapter 26, Section 5179, subsection (a) of the United States Code requires that any distilling 1

Notably, the Supreme Court of the United States has explained that the federal tax statutes "proscribing the canying on of the enterprise of illegal distillation, is one of the most comprehensive of criminal statutes designed to stop production and sale of untaxed liquor." U.S. v. Gainey. 380 U.S. 63, 67 (1965).

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apparatus be registered upon "set up" with the type of still, its capacity, owner, place of residence and purpose declared. 26 U.S.C. § 5179(a). Further, Section 5601(a)(l) of the Internal Revenue Code also speaks of registration requirements. 26 U.S.C. § 5601(a)(l). Additionally, Section 5601(a)(2) penalizes a failure to file an application seeking registration of a still. 26 U.S.C. § 5601(a)(2). Thus, as was the case at the time of this Office's 1974 opinion, federal law continues to place restrictions on distillation units such as those referenced in Mr. Singleton's letter. In light of the existence of the aforementioned authorities, we decline to ovem1le our previous opinion on this matter. Rather, we reiterate the advice contained in our 1974 opinion and advise Mr. Singleton that the most prudent way to "acquire written permission to fabricate, transport and display" distillation units would be to approach the appropriate authorities and simply ask. Op. S.C. Atty. Gen., 1974 WL (September 17, 1974) ("It would be advisable to approach both the Federal Bureau of Alcohol, Tobacco and Firearms and the State Alcoholic Beverage Control Commission[.]"). Alternatively, as mentioned in our previous opinion, if the design of the distillation unit could be modified in such a way that it would be unable to "distill spirits," it would seem Mr. Singleton' s questions would be resolved. Op. S.C. Atty. Gen., 1974 WL (September 17, 1974) ("[I]t is possible that these questions might be resolved if your 'model' still is constructed in a manner so as to be incapable of distilling spirits."). Conclusion

In conclusion, because state and federal law continue to place restrictions and regulations on distillation units, we reaffirm our 1974 opinion on this issue. As a result, it is our continued belief that the best way for Mr. SingletOn to acquire permission to fabricate, transport and display such units would be to either: (1) approach the appropriate authorities and ask; or (2) if possible, modify the distillation units to where they could only be utilized to distill water as opposed to alcohol.

s~~~
Brendan McDonald
Assistant Attorney General

Solicitor General