Sunday, July 19, 2009

South Carolina Judge Rules State Ban On Underage Possession Unconstitutional

After today I'm dropping off the face of the Earth until the Bar is over. But saw this and decided on a quick post.

A magistrate in South Carolina has ruled that a state statute prohibiting underage alcohol sale, consumption, and possession is unconstitutional. At the heart of the matter is Article 17, Section 14 of the SC Constitution (emphasis added):

SECTION 14. Citizens deemed sui juris; restrictions as to sale of alcoholic beverages.

Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one. (1973 (58) 864; 1975 (59) 13.)

So technically it does seem that the restriction is limited to sale under the state constitution. But let us not forget Section 2 of the 21st Amendment:
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
The 'delivery and use therein' language has been a headache for the courts since the amendment's adoption. Is a sale a "delivery"? A "use"? Generally though, underage restrictions on sale, use, and possession have been found valid exercises of state 21st Amendment power.
In WA underage possession and consumption is prohibited:
§ 66.44.270. Furnishing liquor to minors -- Possession, use -- Penalties -- Exhibition of effects -- Exceptions
(2)(a) It is unlawful for any person under the age of twenty-one years to possess, consume, or otherwise acquire any liquor. A violation of this subsection is a gross misdemeanor punishable as provided for in chapter 9A.20 RCW.
However, there are always exceptions. And WA is big on protecting in-home privacy.
(3) Subsections (1) and (2)(a) of this section do not apply to liquor given or permitted to be given to a person under the age of twenty-one years by a parent or guardian and consumed in the presence of the parent or guardian. This subsection shall not authorize consumption or possession of liquor by a person under the age of twenty-one years on any premises licensed under chapter 66.24 RCW.
Underage children may be given alcohol by their parents if consumed in their presence. And that 66.24 reference refers to bars and restaurants, so it has to be in a non-licensed premises like their home, or presumably some other private place. Section 2(b) prohibits underage public intoxication, and the only exceptions are for medical and religious use. So presumably parents can't serve their kids at, say, a park BBQ.

And I'm sure that if you started giving little Jimmy his morning bowl of Whisky n' Cheerios, Child Services would be on your case.

The South Carolina case is being appealed. I'm sure they'll find a reason to reverse.

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The Twentyfirst Amendment Meets the 21st Century by Russell Hews Everett is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. The opinions expressed on this page are purely my own, and should not be taken to constitute legal representation or advice.