Opinion
No. 99CA2265
November 24, 2000
Appeal from the Division of Administrative Hearings, Honorable Marshall A. Snyder, Judge, OS 99-04.
ORDER AFFIRMED
Frie Arndt, LLP, Robert G. Frie, Stephen C. Fauver, Arvada, Colorado for Plaintiff-Appellant
Ken Salazar, Attorney General, Maurice G. Knaizer, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
Plaintiff, Ginny's Kids International, Inc., (GKI) appeals the determination of an Administrative Law Judge (ALJ) that upheld the decision of the Colorado Secretary of State, denying GKI's application for a bingo-raffle license under § 12-9-104, C.R.S. 2000. We affirm.
In 1982, an unincorporated group decided to create a program called "Ginny's Kids" to raise funds to send children with cancer and other life-threatening diseases on "dream vacations." Soon thereafter, Ginny's Kids became a program of the Arvada Kiwanis Club. The club raised money for the Ginny's Kids program through raffles and placed the proceeds in a separate account to be used solely for the purposes of Ginny's Kids.
In 1988, the club formed the Kiwanis Club of Arvada Foundation (Foundation) as a tax-exempt charitable organization. The creation of the Foundation allowed individuals who contributed to Kiwanis activities to deduct their contributions from their income tax returns. The articles of incorporation and by-laws of the Foundation gave it authority to raise and expend money in the name of Ginny's Kids and all money so raised was likewise kept in a separate account.
In 1996, some members of the Foundation wanted to expand the use of Ginny's Kids' funds for purposes other than "dream trips." Those that opposed such expansion formed GKI as a separate charitable organization to pursue the original objectives of the group, and the Foundation thereafter transferred to GKI all of the funds in its bank accounts that were attributable to Ginny`s Kids activities. The Foundation amended its by-laws to exclude any reference to Ginny's Kids, but continued to operate as a charitable organization.
In 1998, GKI filed an application with the Secretary for a bingo-raffle license. The Secretary denied the application, asserting that GKI had not existed for five years as required by § 12-9-104, C.R.S. 2000. GKI then requested a hearing before an ALJ, who upheld the Secretary's decision. This appeal followed.
GKI contends that the ALJ erred in concluding that it was not entitled to a bingo-raffle license because it had not been in existence for five years. Specifically, GKI argues that it is a successor organization to the Foundation and that, therefore, § 12-9-104 permits it to add the time its predecessor had been in existence to its own time in existence to meet the five-year requirement.
Alternatively, GKI contends that it is essentially the same organization that began in 1982, with the same people, purposes, and functions, and that during the time it was affiliated with the Kiwanis Club and the Foundation it operated independently. Therefore, it argues that the time before its incorporation should be counted toward the five-year requirement. We disagree with both contentions.
A reviewing court may reverse an administrative agency's determination if the court finds that the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the evidence in the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority. Section 24-4-106(7), C.R.S. 2000; McClellan v. Meyer, 900 P.2d 24 (Colo. 1995).
When presented with an issue that involves statutory construction, our review is de novo. Fogg v. Macaluso, 892 P.2d 271 (Colo. 1995). Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly.Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997).
To discern that intent, we look first to the plain language of the statute and interpret statutory terms in accordance with their commonly accepted meanings. Sears v. Romer, 928 P.2d 745 (Colo.App. 1996). A strained or forced construction of a statutory term is to be avoided, and we must look to the context in which a statutory term is employed. Miller v. Byrne, 916 P.2d 566 (Colo.App. 1995).
Further, we must construe the statute as a whole so as to give consistent, harmonious, and sensible effect to all its parts and, if possible, give effect to every word in the statute. City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo. 1998).
Section 12-9-104(1), C.R.S. 2000, provides that a bingo-raffle license may be issued to:
Any bona fide chartered branch, lodge, or chapter of a national or state organization or any bona fide religious, charitable, labor, fraternal, educational, voluntary firefighters', or veterans' organization or any association, successor, or combination of association and successor of any of the said organizations that operates without profit to its members and that has been in existence continuously for a period of five years immediately prior to the making of application for a bingo-raffle license. . . .
The statute thus limits the type of organizations to which a license may be issued. Under the statute, there are three distinct groups of organizations that can receive a license: (1) bona fide chartered branches, lodges, or chapters of national or state organizations; (2) bona fide religious, charitable, labor, fraternal, educational, voluntary firefighters' or veterans' organizations; or (3) any association, successor, or combination of association and successor, of any of the preceding types of organizations. In addition, the organization must also operate without profit to its members and have been in continuous existence for the five years immediately prior to making its application.
A.
Addressing GKI's contention that it is a "successor" organization to the Foundation, we note that the term "successor" is not defined in the statute. We interpret the statute's reference to a successor organization to mean an organization that either: (1) completely takes the place of another already qualified organization; or (2) comes into being through a consolidation or through combining multiple qualified organizations. We so conclude for several reasons.
Black's Law Dictionary 1446 (7th ed. 1999) defines "successor" as one who "succeeds to the office, rights, responsibilities or a place of another; one who replaces or follows another," and with reference to corporations, "successor" is defined as another corporation which through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation.
These definitions speak not only to entities or persons, but also to functions or activities. However, in our view, we are required to limit the definition here to those that pertain to entities or persons. We so conclude for a number of reasons.
The statute speaks in terms of granting licenses to organizations, not to licensing their functions or activities. It describes the types of entities that may receive licenses. If the General Assembly had intended to grant licenses with reference to particular functions or activities of organizations, it would have so stated, and would have structured the statute differently.
This interpretation is confirmed by reviewing the five-year requirement contained in the statute. The term "has been in existence continuously" logically refers to the existence of organizations, not to functions or activities thereof.
Further, to construe the license as pertaining to functions and activities rather than to organizations would allow multiple licenses, in violation of statutory and constitutional provisions.See Northern Colorado Chapter, American Historical Society of Germans from Russia v. Meyer, 794 P.2d 1025 (Colo.App. 1989) (provisions limit organizations to one license each).
Hence, we do not perceive that we should read the term "successor" to include an assumption of certain functions, activities, or parts of an organization.
Applying the definition we have chosen here, we conclude that a person who "succeeds to the office" of another, or "to the place of another," to use the dictionary terms, necessarily succeeds to the whole office or place, not simply to part of its function or activities. We note that one cannot be a successor to an organization, as opposed to succeeding to its functions, without completely taking its place.
GKI did not completely replace the Foundation. Rather, it broke away from the Foundation and assumed one of its previous functions or activities. The Foundation continues to exist for other charitable purposes. Further, GKI was not the result of a consolidation or combination of charitable organizations, but rather it incorporated after disassociating itself from the Foundation and the Arvada Kiwanis Club.
Thus, we conclude that GKI is not a successor organization as contemplated by the statute. Hence, it cannot count the years it existed as part of the Foundation or the Arvada Kiwanis Club to meet the five-year requirement.
GKI nevertheless argues that it should qualify as a successor because it completely took over the Foundation's role with respect to the resources, members, and activities that carried out the mission of Ginny's Kids. However, this emphasis on the function of the organizations is again misplaced. As noted, the statute refers exclusively to organizations, not their functions. Thus, because the Foundation continues to exist, even though its functions have been diminished, GKI cannot be considered a successor to the Foundation.
B.
We likewise reject GKI's contention that the years prior to its incorporation should be counted toward the five-year requirement because it has operated continuously as an independent association since 1982.
It is undisputed that GKI is a bona fide charitable organization and, thus, is one of the types of organization that are permitted to have a bingo-raffle license under the statute.
It is also undisputed that the same group of people who now operate GKI began the Ginny's Kids program in 1982 with the same charitable purposes. However, the record indicates that, until it incorporated in 1996, the program operated as a committee or sub-group of the Arvada Kiwanis Club or the Foundation. Prior to incorporation, the program did not have its own by-laws. The Foundation's by-laws, however, made specific reference to Ginny's Kids.
In addition, although the funds were segregated from other Foundation money, all funds raised by the Ginny's Kids program were held in the Foundation's bank accounts. Further, the press clippings recounting various trips that Ginny's Kids sponsored always referred to it as part of the Arvada Kiwanis Club.
Therefore, we conclude that, contrary to GKI's assertion, Ginny's Kids was not an independent organization until it incorporated in 1996. And, although GKI is a bona fide charitable organization, it cannot count the time the Ginny's Kids' program operated as a part of the Arvada Kiwanis Club or the Foundation toward the five-year statutory requirement.
Consequently, we perceive no error in the denial of GKI's application for a bingo-raffle license.
The order is affirmed.
JUDGE MARQUEZ concurs.
JUDGE TAUBMAN dissents.