Department of Transportation; Ferries; Concessions

Subject:

Department of Transportation; Ferries; Concessions

Requested By:

E. H. McEntire, P.E.
State Highway Chief Engineer

Question:

Does N.C.G.S. § 136-82, which provides for concessions on ferries to provide for refreshments and "personal comfort items" to the passengers, authorize the sale of shirts, jackets, hats, visors, ash trays, coffee cups, post cards, and key chains?

Conclusion:

No.

This is in response to your request for our opinion concerning N.C.G.S. § 136-82, which authorizes the Department of Transportation to provide certain items at concessions on ferries and at ferry facilities. You specifically ask if the sale of souvenirs, such as ash trays, coffee cups, post cards, key chains, jackets, hats, visors, and T-shirts are authorized by the statute. The pertinent language of the statute reads as follows:

"To provide for the comfort and convenience of the passengers on the ferries established

and maintained pursuant to this section, the Department of Transportation,

notwithstanding any other provision of law, may operate, or contract for the operation of,

concessions on the ferries and at ferry facilities providing food, drink, other refreshments,

and personal comfort items for those passengers." (emphasis added) N.C.G.S. 136-82.

North Carolina has established statutory and case law that indicates that it is against public policy for the State to engage in commercial activities in competition with private enterprise. N.C.G.S. § 66-58(a) states that it is "unlawful for any…agency of the State government, …to engage directly or indirectly in the sale of goods, wares or merchandise in competition with any person, firm or corporation for the operation or rendering of any such business or service…or to purchase for or sell to any person, firm or corporation any article of merchandise in competition with private enterprise." The North Carolina Supreme Court has stated that "the rule in North Carolina is that it is not the function of government to engage in private business." Mitchell v. North Carolina Industrial Development Financing Authority, 273 N.C. 137, 156 (1968). N.C.G.S. § 136-82, must be read in conjunction with the clearly expressed public policy that prohibits government agencies from competing with private industries in business.

There are a number of exceptions to N.C.G.S. § 66-58. In these cases, the authorization language is explicit. For example, the Wildlife Commission can sell wildlife memorabilia, N.C.G.S. § 6658(b)(19); college bookstores can sell "educational materials and supplies, gift items and miscellaneous personal use articles" to employees and students, N.C.G.S. § 66-58(c)(3); and, the Museum of Art is expressly authorized "to provide auxiliary services at the North Carolina Museum of Art…including the sale of books, periodicals, art works, art supplies…", N.C.G.S. § 140-5.14(13).

The meaning of the term "food, drink and other refreshments" as used in N.C.G.S. § 136-82, is clear. The Legislature contemplates the sale of coffee, soft drinks and snack items at the concessions on ferries and at ferry facilities. However, the definition of "personal comfort items" is not clear from reading the statute. The federal government used these words, "personal comfort items," in the Medicare Act to describe items for which the federal government would not reimburse patients. The federal district court stated that the phrase "personal comfort items" is an unclear phrase; at best it is an ambiguous phrase. St John’s Hospital v. Harris, 535 F.Supp. 751, 763 (N.D. Ill., E.D. 1981).

Exceptions to a statute, as a general rule, should be strictly, but reasonably construed in conformity with the purpose and meaning of the statute. 82 CJS, STATUTES, Par. 82, p. 891. The Legislature in this case, after authorizing concessions for refreshments to ferry passengers, authorized "personal comfort items" to be included. As already indicated, other exceptions to

N.C.G.S. § 66-58 include "wildlife memorabilia" (Wildlife Commission), gift items and miscellaneous personal use articles (colleges), books, periodicals and art supplies (Art Museum). Had the Legislature intended to authorize the sale of the items in question they could have clearly done so by authorizing the sale of souvenirs and items of clothing. However, the statute is restricted to "personal comfort items." Usually, words of a statute will be given their natural, approved, and recognized meaning. Black v. Littlejohn, 312 N.C. 626, 638 (1985). We believe the term should be given its ordinary meaning in the context of the status as a passenger on the ferry, i.e., such items that passengers on a ferry would usually or normally expect to be available to ferry passengers for sale for their personal comfort. While the enumerated articles may come within the meaning of other terms that have been used by the Legislature to make exceptions, i.e., personal use items, gift items, souvenirs, memorabilia, the Legislature chose to use the term "personal comfort items" which is more restrictive.

When N.C.G.S. § 136-82 is read in conjunction with the clearly established public policy and the generally accepted rules of statutory construction are applied to give the words their natural, approved and recognized meaning, we do not believe T-shirts, jackets, hats, visors, coffee cups, key rings, and post cards are included within the term "personal comfort items" for ferry passengers. In the context of the sale to ferry passengers at the concessions, we believe such items as handkerchiefs, fingernail clippers/files, combs, tums, aspirin, first aid items, such as band-aids, merthiolate, and sun burn lotion could provide for their personal comfort. Therefore, except for the sale of refreshments at concessions on ferries and at ferry facilities, the Department of Transportation is limited to selling to ferry passengers "personal comfort items," that in the opinion of this office excludes shirts, jackets, hats, other such items of clothing, ash trays, coffee cups, post cards, key chains and other such souvenirs.

Lacy H. Thornburg Attorney General Eugene A. Smith Senior Deputy Attorney General

Elaine A. Dawkins Associate Attorney General