Opinion letter to The Honorable George P. Dames

JOHN ASHCROFT ATTORNEY GENERAL dttm~u;y :ffenmr?b£c/ e_/l/0.dotbn; JEFFERSON CITY 6S101 January 30, 1978 The Honorable George P. Dames No. 8 Boxwood O'Fallon, Missouri 63366 Dear Representative Dames: OPINION LETTER NO. 21 This letter is in response to your request for an opinion. The question reads as follows: "May the Supervisor of Liquor Control by regulation establish simplified pro- cedures for the issuing of permits autho- rized under Section 311.200(7) Tsic], RSMo 1969, to include the delegation of authority to District Supervisors to is- sue such permits in his name?" (314) 7S1-3321 The statute referred to in the opinion request is errone- ously enumerated. Obviously, the request pertains to Section 311.215, RSMo Supp. 1975. Section 311.215, RSMo Supp. 1975, provides as follows: "Notwithstanding the other provisions of this chapter, a permit for the sale of malt liquor as defined in Section 311.200, chapter 311, RSMo 1969, for consumption on premises where sold may be issued to any church, school, civic, service, fraternal, veteran, political Honorable George P. Dames Page 2 or charitable club or organization for the sale of such malt liquor at a picnic, bazaar, fair, or similar gathering. Said permit shall be is- sued only for the day or days named therein and it shall not au~horize the sale of aforesaid malt liquor for more than seven days by any said organization as described above in any fiscal year. For each such per- mit issued, the licensee shall pay to the director of revenue the sum of ten dollars. No provision of law or rule or regulation of the supervisor shall prevent any wholesaler or distributor from providing customary storage, cool- ing or dispensing equipment for use by the holder of the license at such picnic, bazaar, fair, or similar gather- ing." With respect to the Supervisor's rule-making authority, Section 311.660, RSMo 1969 provides: "The supervisor of liquor control shall have the authority . . to make the fol- lowing regulations, .. * * * "(3) Prescribe all forms, applications and licenses and such other forms as are necessary to carry out the provisions of this chapter; * * * "(10) To make such other rules and regu- lations as are necessary and feasible for carrying out the provisions of this chapter, as are not inconsistent with this law." Honorable George P. Dames Page 3 The question which you have raised concerns the ability of the Supervisor to delegate to his district supervisors the power to issue the permits referred to in Section 311.215, RSMo Supp. 1975. Public officers can delegate those powers and duties which are ministerial in nature, while discretion- ....:: ~ .... :. '-" c .:..... - ~ - -::: -- , ,_: .... -- ~ --~~~----~----=----- tion Co. v. Reber, 126 S.W. 397, 399 (Mo. 1910). Therefore, the determination must be made as to whether or not the issu- ance of a permit under Section 311.215, RSMo Supp. 1975, is discretionary or ministerial. According to the court in Yelton v. Becker, 248 S.W.2d 86, 89 (St.L.Ct.App. 1952), "Ministerial duties are th~se duties of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obe- dience to the mandate of legal authority, without regard to his own judgment or opin- ion concerning the propriety of the act to be performed." On the other hand, "When the lmv, in terms or impliedly, com- mits and entrusts to a public officer the affirmative duty of looking into facts, reaching conclusions therefrom and act- ing thereon, not in a way specifically directed, [i.e., not merely ministerially] but acting as the result of the exercise of an official and personal discretion vested by law in such officer and uncon- trolled by the judgment or conscience of any other person, such function is clearly quasi judicial. 1 • Usually a dis- cretion that is within the power granted to an officer cannot be controlled by other officers. 1 " State ex rel. Griffin v. Smith, 258 S.W.2d 590, 593 (J:-1o. Bane 1953). Honorable George P. Dames Page 4 At least one qualification is so clearly within the discretionary function that delegation of the power to is- sue licenses vwuld not be proper. Section 311.060 .1, RSMo 1969, provides that, "No person shall be granted a license hereunder unless such person is of good moral character " This requirement admits of the "exercise of an of- ficial and personal discretion" of the Supervisor of Liquor Control and that discretion "cannot be controlled by other officers", State ex -~"" 'l, Griffin v. SEl..i th, su?ra. Section 311.210, RSMo 1969, provides that: "1. All applications for all licenses mentioned in this chapter shall be made to the supervisor of liquor control. 11 2. The supervisor of liquor control shall have the power and duty to deter- mine whether each application for such license shall be approved or disapproved. II The Supervisor has the exclusive power to issue permits. The exercise of discretion is involved in the granting of permits. For example, see State ex rel. Bismark Grill, Inc. v. Keirnan, 181 S.W.2d 798, 802 (K.C.Ct.App. 1944), where the court held that the Director of Liquor Control for the City of Kansas City exercised a judicial discretion in granting or refusing permits. Therefore, it is the view of this office that the issuance of permits under Section 311.215, RSMo Supp. 1975, is a discre- tionary power of the Supervisor which may not be delegated to district supervisors or any other persons. Very truly yours, ~~c.A--e3--- JOHN ASHCROFT , - - -:;_g--., Attorney General