# Question of legal construction and "primary purpose" **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 29, 2015, 10:07pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849 "2015-04-29T22:07:42Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 29, 2015, 10:07pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/1 "2015-04-29T22:07:42Z")
I have a probationer who has a term of his probation that he may not “frequent any establishment whose primary purpose is the sale of alcohol…sold for consumption on the premises.” State law, case law, or code of state rules provide no definition. Liquor licenses are either on premise or off premise consumption. Tell me, legal scholars, a good test for a place that has a “primary purpose” of the sale of alcohol. I have one that seems unquestionably correct to me: A place with minimal food service of which a physical bar is the dominant part, or one that clearly makes most of its revenue from alcohol sales has a primary purpose of the sale of alcohol. Chain restaurants like Applebees, Chilis, or Buffalo Wild Wings which serve a wide range of food choices but also sell alcohol as a minority of their revenue do not have a primary purpose of selling alcohol. The Prosecution says: Buffalo Wild Wings applies. Beer is listed prominently in their advertisements, so alcohol is “a” primary purpose along with food. Tell me your answer and we’ll see if I am off base here. Case law would make you my hero for the day… ---
**Author:** ![vd](https://avatars.discourse-cdn.com/v4/letter/v/b19c9b/32.png) [@vd](https://boards.straightdope.com/u/vd)\ **Post date:** [April 29, 2015, 10:31pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/2 "2015-04-29T22:31:11Z")
The phrasing certainly makes me think of a singular primary purpose, rather than one of the primary purposes. And I would assume that an establishment that allows minors for at least part of the day (and BWW even has a kids’ menu), and has largely the same menu after that, is OK. But I concede that once the kitchen closes, the primary purpose _during those hours_ is the sale of alcohol. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 29, 2015, 10:34pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/3 "2015-04-29T22:34:04Z")
I agree with your definition more than the prosecutor’s, and I’d be surprised if a judge revoted probation if the probationer went ot Buffalo Wild Wings or Applebees. The most important thing, I would suggest, is that someone give the probationer clear guidance as to what he can and cannot do. If you told him the local mexican place is off limits because they serve beer, then he would be wise to follow your advice. ---
**Author:** ![Spiderman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spiderman/32/230_2.png) [@Spiderman](https://boards.straightdope.com/u/Spiderman)\ **Post date:** [April 29, 2015, 10:44pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/4 "2015-04-29T22:44:19Z")
> [@Procrustus](#): > > The most important thing, I would suggest, is that someone give the probationer clear guidance as to what he can and cannot do. If you told him the local mexican place is off limits because they serve beer, then he would be wise to follow your advice. Who is ‘someone’? If you were his counsel & told him that Applebee’s is okay, is that a viable/mitigating defense if the prosecutor goes after him? ---
**Author:** ![Isilder](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@Isilder](https://boards.straightdope.com/u/Isilder)\ **Post date:** [April 30, 2015, 12:43am UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/5 "2015-04-30T00:43:41Z")
Its a silly clause anyway, what the hell does “Frequent” mean ? ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 30, 2015, 12:59am UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/6 "2015-04-30T00:59:54Z")
IANAL, but I’ll use what I’ve learned from here to give different ways of deriving the answer. From a textualist standpoint, I would argue that, absent a clear definition, you go with the common meaning, where “a primary” and “primary” used by itself mean two different things. If you wanted to allow for multiple primary purposes, you’d have do say something like “frequent any establishment with a primary purpose of the sale of alcohol…sold for consumption on the premises.” From an originalist point of view, I’d say that the idea was to prevent him from consuming alcohol, with the idea that if he’s at a place that primarily serves liquor, it’s going to be much harder for him not to drink. If they’d intended to say he should not go to any place that sells liquore, the word “primary” seems superfluous. Finally, from my own “the rules should be clear” point of view, it only makes sense that you should adhere to the least restrictive reasonable definition. If you want him to avoid places that advertize alcohol, you need to tell him that. You can’t expect someone to know you mean a more restrictive definition. That would just be setting the person up to fail. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 30, 2015, 1:33am UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/7 "2015-04-30T01:33:09Z")
> [@Spiderman](#): > > Who is ‘someone’? If you were his counsel & told him that Applebee’s is okay, is that a viable/mitigating defense if the prosecutor goes after him? Someone is the court, or more likely the PO. as his lawyer, I’d tell him to errr on the side of freedom. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [April 30, 2015, 1:30pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/8 "2015-04-30T13:30:25Z")
> [@Procrustus](#): > > Someone is the court, or more likely the PO. as his lawyer, I’d tell him to errr on the side of freedom. Is the “side of freedom” him exercising more freedom by going to marginal places like BWW perhaps resulting in his re-incarceration, or is it him exercising more self-restraint by avoiding BWW, _et al_, and thereby remaining out of jail? Not being a jerk here; I genuinely can’t tell which position you intend to support. ---
**Author:** ![GaryM](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/garym/32/241_2.png) [@GaryM](https://boards.straightdope.com/u/GaryM)\ **Post date:** [April 30, 2015, 2:11pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/9 "2015-04-30T14:11:46Z")
Some states prohibit concealed weapons in bars. They are often defined as obtaining 51% or more of their income from alcohol sales. Perhaps your state has a similar law? ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [April 30, 2015, 2:15pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/10 "2015-04-30T14:15:29Z")
One potential aid could be the [Rule against surplusage](http://en.wikipedia.org/wiki/Statutory_interpretation#Textual). If the rules really were meant to be interpreted as “frequent any establishment that sells alcohol…sold for consumption on the premises”, then it would have said that, and dispensed with the “primary purpose” surplusage. > [@BigT](#): > > … > From a textualist standpoint, I would argue that, absent a clear definition, you go with the common meaning, where “a primary” and “primary” used by itself mean two different things… > From an originalist point of view, I’d say that the idea was to prevent him from consuming alcohol, with the idea that if he’s at a place that primarily serves liquor, it’s going to be much harder for him not to drink. If they’d intended to say he should not go to any place that sells liquore, the word “primary” seems superfluous… Yeah. Consider the gas station on the corner. I don’t know about yours, but the one here clearly exists for the primary purpose of selling gas, but it also happens to sell cigarettes, chips, sodas, and lottery tickets. Considering BigT’s originalist point of view, consider the difference between going to a gas station that happens to have a few lottery tickets available versus going to a casino with slot machines everywhere and the constant sound of roulette wheels spinning. Are they the same thing? Of course not, seeing one shelf of lottery tickets is not the same as being in a casino in terms of temptation and whatnot. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [April 30, 2015, 2:19pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/11 "2015-04-30T14:19:33Z")
Does your probationer appear to be having trouble with temptation, etc. by going to BWW, or does he (or she) perhaps appear to be using BWW as a more pro-social alternative to going to seedy back-alley bars and notorious gang hangouts? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 30, 2015, 3:34pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/12 "2015-04-30T15:34:21Z")
> [@LSLGuy](#): > > Is the “side of freedom” him exercising more freedom by going to marginal places like BWW perhaps resulting in his re-incarceration, or is it him exercising more self-restraint by avoiding BWW, _et al_, and thereby remaining out of jail? > > Not being a jerk here; I genuinely can’t tell which position you intend to support. You’re right, I wasn’t clear. The probationer’slawyer should always advise the safest course, and then perhaps seek clarification from the Judge or probation officer. I often asked the court at the time conditions were imposed to make something more clear. The language in the OP probably was the result of some dufus arguing “I wasn’t in a _bar_, your honor, I was in a tavern.” So the judge started telling people after that, “just stay out of establishments by whatever name, which have as a primary purpose the serving of alcohloc beverages.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 30, 2015, 5:21pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/13 "2015-04-30T17:21:04Z")
The State of Washington indignantly denied any ambiguity in a similar condition in _State v. Traylor_. I can’t find a Pacific Reporter cite for the case, but it’s State v. Traylor, No. 68349-7-I (Wash. Court App. Aug. 12, 2013). > [@](#): > > Traylor challenges two of his conditions of community custody: > > Do not possess or consume alcohol and do not frequent establishments where alcohol is the chief commodity for sale. > Traylor argues that the term “chief commodity for sale” is unconstitutionally vague because a reasonable person can neither quantify what constitutes a “chief commodity” nor describe a standard necessary to avoid arbitrary enforcement. We disagree. > > The dictionary definition of “chief” is “marked by greatest importance, significance, influence.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 387 (2002). It is a synonym of “principal,” “main,” and “leading.” Id. The dictionary definition of “commodity” is “an economic good.” Id. at 458. An establishment where alcohol is the chief commodity sold is an establishment where alcohol is the main or most important good for sale. It connotes an establishment whose primary purpose is the sale of alcohol. > > Traylor’s arguments fall into two broad categories. First, he argues that the condition’s ambiguity is highlighted by the fact that it is unclear if he is prohibited from entering sports venues, stores that sell liquor but are not liquor stores, or a given restaurant. An ordinary person would not perceive selling alcohol to be the main or most important aspect of a sports venue, a theatre, or another similar entertainment venue. The chief commodity of those establishments is entertainment, and Traylor is not prohibited from attending a sporting event at a sports venue or a show at a theatre. He is, however, prohibited from entering a beer garden or bar area within those venues. Likewise, despite the privatization of liquor sales, an ordinary person would not perceive liquor to be the chief commodity at grocery stores, convenience stores, or gas stations, even though they may sell a significant quantity of alcohol. **Traylor’s complaint that it is unclear whether he could enter a given restaurant is similarly unpersuasive. Alcohol is the chief commodity of a tavern or a lounge or bar area of a restaurant. He is prohibited from being present there, but would not be prohibited from the separate food service area of a restaurant.** Some uncertainty is inherent in any condition. For example, even if the condition specified in detail that he was banned from any facility holding specific types of liquor licenses, he would have to make an inquiry about the license of the establishment to be certain. Again, we note that a “condition `is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct.'” Valencia, 169 Wn.2d at 793 (quoting State v. Sanchez Valencia, 148 Wn. App. 302, 320, 198 P.3d 1065 (2009), reversed by, 169 Wn.2d 782)). > > Second, Traylor argues that there are a variety of tests that could be used to determine whether alcohol is the chief commodity of a given establishment. Failure to designate one of those tests or some other more concrete test, he argues, prevents him from ascertaining which establishments he is prohibited from entering and creates a potential for arbitrary enforcement. He argues that an establishment’s “chief commodity” could be measured, for instance, as a percentage of income that comes from alcohol sales or from the gross quantity of alcoholic units sold. Thus, Traylor claims he may violate the condition if he enters an establishments whose sales receipts show that 25 percent of its sales are alcohol related, or a store that sells more alcohol than any other “commodity class.” > > While including such a parameter might exclude other imagined means to determine a violation, it would provide little real guidance. Those conditions would fail the vagueness test, because sales data is not widely available. It would not be possible for an ordinary person to tell what conduct is proscribed without a specific inquiry of the establishment. Further, the information would vary over time. It could mean that presence one day was a violation and another it was not, and the condition would have to include a temporal element as well as a quantity element to be accurately interpreted. That additional requirement would make it even more difficult for an ordinary person to tell what conduct is proscribed. Such parameters are not necessary for an ordinary person to understand when alcohol is an establishment’s chief commodity. > > The vagueness doctrine is aimed at preventing the delegation of “basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). This condition adequately addresses that concern. Its ordinary meaning provides both sufficient guidance for an ordinary person to understand what conduct is proscribed and ascertainable standards of guilt. (bolded emphasis added) What do I win? ---
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [April 30, 2015, 5:29pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/14 "2015-04-30T17:29:33Z")
Two of the biggest arguments that occured to me have already be expressed. Does the restaurant derive more than half it’s income from the sale of alcohol? Do bars in your city/state allow minors in even though they’re not permitted to drink? If BWW allows children in while they couldn’t be in a bar strongly argues against alcohol being a primary purpose. Out of curiosity, what brought your probationer to the attention of the prosecutor? ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [April 30, 2015, 5:48pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/15 "2015-04-30T17:48:06Z")
There is no more sense on having more than one primary purpose than in having two winners in a game that does not allow ties. Primary means #1. Still courts often say illogical things. When I moved to Montreal, it is illegal for any store whose primary function was selling food from opening Monday mornings. (Why? Damned if I know.) One of the downtown department stores had a small food department. They took them to court and the judge ruled that, being a department store, they had no primary business and it might was well be food as anything. In the end they paid a fine and roped off the food section Monday mornings. Utterly illogical since the law said it had to be their primary business. But go figure. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [April 30, 2015, 7:27pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/16 "2015-04-30T19:27:22Z")
I actually work in community supervision ( in a different state, I’m sure) and we basically go along with your definition , **jtgain**. Applebees, BWW or really any restaurant or catering hall would not be prohibited. A baseball game where you can buy a beer would not be prohibited- but an actual bar within the baseball stadium would be. Places that call themselves bars or taverns would be prohibited and so would many clubs, as they make most of their money by selling alcohol. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2015, 10:07pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/17 "2015-04-30T22:07:04Z")
> [@Bricker](#): > > The State of Washington indignantly denied any ambiguity in a similar condition in _State v. Traylor_. I can’t find a Pacific Reporter cite for the case, but it’s State v. Traylor, No. 68349-7-I (Wash. Court App. Aug. 12, 2013). > > (bolded emphasis added) > > What do I win? Coffee mugs. 🙂 That’s a great case for two reasons. One, it says that my view is correct, and two, it says that my view is so clear and correct that it cannot be rationally argued otherwise. But nonetheless I disagree with the court in its distinction between sitting at the bar area of a restaurant versus the food area of the restaurant. The condition in that case speaks of the chief commodity of the establishment as a whole, not the individual subsections of it. It seems silly that although I can sit at the bar and have exactly the same options of food or drink that I would have at a table in the dining room, that one is okay and the other may get me in trouble. So maybe the court’s test isn’t so clear. To answer some other questions, he got caught because someone who doesn’t like him saw him there and called the prosecutor…who also doesn’t like him. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 1, 2015, 12:22am UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/18 "2015-05-01T00:22:42Z")
> [@jtgain](#): > > Coffee mugs. 🙂 > > That’s a great case for two reasons. One, it says that my view is correct, and two, it says that my view is so clear and correct that it cannot be rationally argued otherwise. Yes, that’s my favorite part of finding this – it’s not a revocation hearing. It’s a void-for-vagueness challenge to a substantially similar restriction, and the court not only comes down on your side in general but says that no reasonable person could possibly reach the opposite conclusion. Of course, I think I remember you’re not in Washington. I could not find anything useful in West Virginia decisions, alas. > [@](#): > > But nonetheless I disagree with the court in its distinction between sitting at the bar area of a restaurant versus the food area of the restaurant. The condition in that case speaks of the chief commodity of the establishment as a whole, not the individual subsections of it. It seems silly that although I can sit at the bar and have exactly the same options of food or drink that I would have at a table in the dining room, that one is okay and the other may get me in trouble. So maybe the court’s test isn’t so clear. Unless your guy was in the bar area, who cares? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 2, 2015, 2:21pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/19 "2015-05-02T14:21:39Z")
> [@Bricker](#): > > Yes, that’s my favorite part of finding this – it’s not a revocation hearing. It’s a void-for-vagueness challenge to a substantially similar restriction, and the court not only comes down on your side in general but says that no reasonable person could possibly reach the opposite conclusion. > > Of course, I think I remember you’re not in Washington. I could not find anything useful in West Virginia decisions, alas. > > Unless your guy was in the bar area, who cares? Right, nothing in West Virginia. I deal with many probationers and have never seen a violation filed for something as minor as this. Usually they let one failed drug test fall away with a strong lecture from the probation officer–never sees a judge. I agree that it doesn’t apply here whether he was in the bar area because it doesn’t apply here. It might apply to the next case. Also, as I was thinking, suppose they find him in a dive strip club. An argument could be made that the primary purpose of the place is not alcohol sales but exotic dancing. I think I know the outcome. Whether the judge agrees with me or not, he will just amend the terms of the probation to say no place where alcohol is served PERIOD and dismiss the matter. When that happens, we might have the same void for vagueness argument that the petitioner in the Washington case had: a probationer could walk into a restaurant but then find that beer is one of the drinks offered for sale on page 9 of the menu. Would it then matter if the ABC stickers were prominently posted near the entrance? Or that the pizza place in the mall food court sells beer, so where are the outer limits of where he can be? The tables near the pizza place? The whole food court? The whole mall? The mall parking lot? What about fairs and festivals not related to alcohol but where a single booth has a wine tasting? Ditto for sports venues. It’s even more frustrating when this condition applies to offenses that were not alcohol or drug related, nor committed while under the influence of alcohol or drugs. It doesn’t seem to further a rehabilitative purpose; just to have a blanket rule which could trap the unwary, or in the alternative, find a violation that doesn’t actually further the goals of the justice system. ---
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [May 5, 2015, 4:44pm UTC](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849/20 "2015-05-05T16:44:36Z")
Let us know how it all shakes out if you don’t mind. Is there an appearance date? [Next page](https://boards.straightdope.com/t/question-of-legal-construction-and-primary-purpose/718849.md?page=2)