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.

Beer Wars Live Review

So we got about seven of the homebrew crew out for Beer Wars Live out at AMC Sunset Place in South Miami last night. All in all a pretty good time, stopped off at the Titanic before the show for dinner and, appropriately enough, mugs of Arrogant Bastard and Dogfish 90 Minute.

The entire Beer Blogosphere, such as it is, will no doubt be buzzing about this so I'll keep my thoughts short.

The Good.

It was reasonably well produced and, come on, for a movie about beer and corporate competition it was pretty darn entertaining. There were some good moments of humor interspersed throughout, usually by creative use of old advertising and industry videos. It was also fun to see various beer personalities get riled up. Greg Koch and Sam Caglione are further cemented in my Hall of Beer Heroes. The 25 or so people in the theatre seemed to be having a good time. (Yeah it sold out in Boston, but hey, 25 people who care about beer in South Miami is an incredible showing!) Also the live simulcast was great, purely because it was a bit spotty and unpolished. It made the whole thing seem more personal somehow, even though there were 400 theatres involved.

The Bad.

Ok. Anat grated on me a little bit, nothing serious but at times she's a bit like a shrill Michael Moore. That didn't bother me too much, though I'm sure many reviews will be less kind. And sometimes I felt the history behind all this was treated a bit too lightly, I'd like to have seen a bit more about the forming of the Three-Tier system after Prohibition.

But my biggest problem BY A MILE is with her premise: that we need to ditch, or at least seriously rethink, the Three-Tier system. No one doubts that there are some serious problems with the current wholesaler tier. Yes, the large breweries (and distilleries/wineries as well! This isn't just a beer problem!) have gained more control over distribution than they were ever intended to. Yes, the small number of powerful distributors often limit choice and create barriers to entry. Yes, they sometimes break the law by offering all kinds of illegal perks, such as bulk discounts, free merchandise, advertising freebies, and sometimes outright bribes. But the distributors are creatures of statute. The monopolies distributors enjoy are granted by the states under the 21st Amendment. And there are perfectly good reasons that the system was structured this way. Distributors are the choke point between retail and production, which makes monitoring all three easier for the state. Because there are relatively few distributors, and they are often geographically limited, there is little incentive to compete, meaning that there is little incentive to make alcohol dangerously cheap and plentiful. Because their licenses are expensive, and profitable, distributors are incentivized to stick to the rules. Usually they get a single warning, then their license is revoked. In practice, even a warning would make investors nervous enough to pull out, spelling danger (possibly doom) to the company.

State legislatures and LCBs could change/actually enforce the restrictions placed on the middle tier, if there was enough political will to overcome the mountain of money in the way. Hopefully this movie will help educate and inspire craft beer fans to start pressuring their legislatures to do just that.

I guess my biggest problem is that while she suggests some alternatives, she doesn't really address the reasons why we have a Three-Tier system and the problems and consequences of tinkering with it. For example, she suggests allowing self-distribution for small brewers. Ok fine, but it's not so simple. Just take a look at the current mess regarding wine shipping and self-distribution. Appart from the cost to the breweries of licensing and bonding, compliance with the complicated regulations concering distribution would take some serious effort. And it would create that much more work for TTB agents and state liquor control officers to monitor that many more distributorships.

Finally, in ignoring the problems that created the Three-Tier system she ignores the inevitability that removing the system will only cause those problems to resurface. If the tied house and antitrust problems that arose before prohibition were bad then, when there were a thousand regional breweries, none with clear market dominance, imagine what it would be like if AB In-Bev and SABMiller could start buying into retail and distribution chains now. That little sliver of grocery store shelf space devoted to craft beer would be gone forever.

I gather that some of the Fresh Beer crew (our local distributors of Shipyard, Avery, Stone, Dogfish, Rogue, etc. i.e. The Font of All that is Good and Holy) were out at South Beach Cinemas for this. I'd like to get their opinion on it, I'll see if I can.

News Updates

So yes I'm still alive, but with graduation approaching, final papers due, Bar applications, moving arrangements, etc. I've been pretty busy. Updates will probably be spotty for a couple months at least, certainly until after the Bar.

Ok so here's some legal and personal updates:

First up: I have registered to take the Washington State Bar Exam! We'll most likely be moving somewhere between Seattle and Tacoma after graduation. I cannot understate how excited we both are to be moving back to the Pacific Northwest.

Wine News

• EU suspends sales of US wine using controverted terms.

This is somewhat old news but if you haven't heard the EU has finally gotten fed up with the continued American use of semi-generic terms such as 'Clos', 'Chablis' and 'Vintage'. Last September the EU sent a letter notifying the US that it would not extend the grace period granted for such terms in the 2005 Agreement between the US and the EU regarding the trade in wine. EC Regulation 113/2009 came into effect March 10th, restricting future sales of all US wines using the controverted names to the existing stock on hand. Almost certainly US trade reps are meeting with the EU to work this out as we speak. Er, I speak. Or type.

• No wine in NY grocery stores.

A bill proposed to allow sale of wine in New York grocery stores is dead in the water. Originally it was part of a budget fund-raising move, the new license fees would have brought in millions of dollars. However, the bill was shot down by the liquor company lobby and a coalition of police, concerned parents, etc. It's another interesting example of the conflict between the ideals of the prohibition-era laws that set up the NY alcohol trade, and the entrenched power thus vested in the liquor stores. Does restricting wine (which in 1933 America was generally high-strength rotgut, compared to the "refined" table wines of today) sales to liquor stores still serve a temperance goal? Or does it just line the pockets of a protected business? Or both? A good question for any state to ponder, as I believe only 35 states or so allow wine sales in grocery stores.

Beer News

• Redhook/Widmer take a hit

Portland's Widmer Brewing turns 25 this year, but also took a serious hit from the recession. The Portland Business Journal reports that the company created by the Redhook/Widmer merger, Craft Brewer's Aliance, lost $30 million last year. The spike in raw materials costs that hit all brewers and the economic downturn seem to be the culprits. On the bright side, they still maintain their distribution agreement with AB/In-Bev (which also owns 1/3 of the CBA) and we've begun to see their Kona brand here in Miami. Anecdotal evidence indicates that it's refreshing and delicious.

• It's now legal to homebrew in Utah, Washington getting there.

Utah Senate Bill 187 and House Bill 51 passed, making it legal to homebrew in Utah and revamping the state's alcohol laws.

Washington State Senate Bill 5060 passed the House (90-3) and now goes back to the Senate for concurrence. The bill faced minor amendments involving wording in the House Labor and Commerce Committee. It would still allow removal of up to 20 gallons of homebrewed wine or beer, not for sale, and for private use including at events and competitions.

Beer Wars

Also a 400+ simultaneous theatre showing of the documentary Beer Wars is happening this Thursday, April 16th. I've got my tickets. Expect a review (and about a thousand others on the beer-bloggernets)

Sweet Lion of Zion! Utah Reforms its Liquor Laws

Over the last few weeks there's been a hubbub in Utah involving a serious reformat of the state's liquor laws. Utah has historically had the most stringent alcohol laws of any state. (Arguably at least, several other states are quite restrictive as well.) It's important to remember that roughly 2/3 of the residents of Utah are Mormons, with around 80% of the legislature being a member of the LDS. So alcohol is treated far more as a vice than as a tax source or domestic industry.

Here's some highlights:

• Utah is one of 18 monopoly states, and all wine and liquor for consumption off-premises must be purchased from state-run stores.
  
• "Beer" is limited to 3.2% Alcohol by Weight (so 4% ABV), and may be purchased for consumption on-premises at most restaurants, taverns, airport lounges, etc.
• Any beer over that is labeled "Heavy Beer" and regulated like liquor.
• Restaurants may be licensed to serve all liquors, but they must be served to patrons by waitstaff, for on-premises consumption, with food.
• Utah allows 'Private Clubs' where hard liquor and mixed drinks may be consumed on-premises, and maintains a byzantine system of temporary "memberships" allowing access for visiting patrons.
• Hours of Sale are restricted, usually Noon-Midnight, never past 1:00 AM.
  
• Utah's ratification made it the 36th and final state required to ratify the 21st Amendment.
• Utah's liquor licenses are distributed according to a ration based on the census, strictly limiting the number of licenses in many areas.

When the Winter Olympics came to Salt Lake in 2002, the tourist outcry over the scarcity of alcohol led to some liberalization, and now in 2009 the state seems to be going through a major overhaul. There are several bills going up, including:

• Senate Bill 187 - which would replace the private club system with an electronic ID registry, remove the "Zion Curtain" (a glass partition that servers must prepare drinks behind and then bring the drink around to bar patrons by hand) allowing service across bars, and includes a requirement for new restaurants to have a screened area where drinks are prepared out of sight of families and children. Existing restaurants will be grandfathered, and given up to $30,000 to remodel their premises should they wish.
  
• House Bill 349 - which would allow draught sales of Heavy Beer, and is controversial amongst Utah's growing craft brewing industry, who have made a name on the strength of their 3.2% beers and the monopoly granted by that restriction. Check out this article on Utah's craft beer scene. A few years ago we drove through and visited several of these breweries and they were quite good. Mmmm Polygamy Porter ("Bring Some Home To The Wives!")
  
• House Bill 51 - a homebrewing bill that will bring Utah in line with most of the states in the country, allowing production of 100 gallons of homebrewed beer and wine without a license.

Here's some more posts and articles:

• Another alcohol reform bill passes in legislative committee
• Liquor Law Reform: Private Clubs on the Verge of Extinction?
• Utahbeer.blogspot.com
  

Economic Downturn = End of Blue Laws?

Interesting Time article about efforts in several states to alter or eliminate bans on Sunday sales of Alcohol. What I find most interesting is that the arguments raised on both sides represent a very current debate about alcohol regulation and consumption.

On the one hand the repeal argument centers around increased tax revenue for states with ailing budgets, coupled with a modern consumer mindset of "I want what I want and I want it NOW". These forces are heavily at work in modern alcohol control policy. So for example many of the states contemplating repealing Sunday Blue Laws are in New England, and they are doing so because people are hopping the border to states that allow sales on Sunday. States are therefore losing tax revenue to neighboring states. On top of that, to many people these laws just seem silly. In an age of 24/7 supermarkets it seems ridiculous that one can't buy booze whenever one feels like it.

Which is where the counter-argument comes in. The article frames it as a sortof dogmatic Christian Right stance, and perhaps there is an element of that, but it is more than just the old warhorse of "Alcohol Bad! Family Good!" Many cities and/or states restrict the hours that alcohol is for sale, even if they allow sales on Sunday. And there are good social policy reasons for this. It's generally better if people who drink a little too much have to go sleep it off, rather than popping down to the corner store at 4:00 AM for another fifth of tequila.

At the heart of Sunday Blue Laws is an appeal to what the Supreme Court has called in its more recent cases the "Core Purposes" of the 21st Amendment. These are supposed to be the original goals of the Amendment, including things like taxation, orderly markets, and temperance. (And these 'goals' are not without criticism, Justice Stevens called it "a totally novel approach to the 21st Amendment" in his dissent in Bacchus v. Dias. Even today it's not entirely clear what these purposes are or are not).

Here it looks like we have a conflict between taxation and orderly markets on the one hand, and temperance on the other. If people are jumping borders on Sunday, states lose both tax revenue and control over the time, place and manner of the sale. And there is the problem of "Blood Borders", where consumers cross the border, drink alcohol, then drive back home while intoxicated. So the state's core purposes can be aided by a repeal of the Blue Laws and subsequent regulation of Sunday sales within the state's three-tier system.

On the other hand, the arguments for Temperance ignore the economic realities on the ground and speak to more idealistic social engineering. Some people won't bother driving across the border for a six-pack, and if they run out of alcohol they just won't drink. And a day where people drink less, maybe spend some time with their families, get some work done around the house, go out for a movie, etc. can't be all bad for society. Not only that, by forbidding sales on a specific day the state subconsciously reinforces the idea that a) it controls alcohol and that alcohol is not just another consumer good, and b) alcohol is in some sense still a vice, which is why it is regulated the way it is.

But ultimately such arguments seem a bit antiquated, and the problem for modern temperance control is crafting laws that keep the evils of excessive consumption down, but that don't make you look like some hatchet-wielding, saloon-smashing, "Demon Rum" shouting nutcase. And perhaps the repeal of Blue Laws, with a subsequent absorption of the market demand into the state three-tier, accomplishes this better than the unstated "Don't drink, go to Church." of existing Sunday Blue Laws.

Happy Repeal of Prohibition Day!

Seventy-five years ago today, December 5th, 1933, the 21st Amendment was ratified and the national experiment in Prohibition officially came to an end. Interestingly Utah was the final state needed to ratify the amendment, though Mississippi would be the last to do so, in 1966.

This didn't end prohibition for everyone of course. National prohibition was over, but around 2/3 of the states elected to exercise their "local option" to allow voters to choose to remain dry, and for a time around of 1/3 of the population of the U.S. chose to do so, either on a state, county or local level. Even today dozens of dry counties remain, including, famously, Moore County, Tennessee, home of the Jack Daniel's Distillery.

Here in Florida there are five dry counties, Lafayette, Liberty, Madison, Suwannee and Washington County. What's most interesting about the dry county phenomenon is the interaction between state and local governments. In many states it's actually illegal for a city or county to go dry, meaning control of alcohol policy is firmly within the state's hands. For example, Oregon's Liquor Control Act, is "designed to operate uniformly throughout the state," and replaces and supersedes "any and all municipal charter enactments or local ordinances inconsistent with it." Others are simply given the option, for example New York allows local municipalities to exercise the option via a public referendum. In others control is handled almost entirely on a local basis. North Carolina may have the most complicated system, setting up dozens of independent local boards to create and administer alcohol policy within their small jurisdictions.

Well, here's to the diamond aniversary of the 21st Amendment! Now back to studying for my Intellectual Property final...