Alcohol

Are Terrible State Alcohol Laws on the Way Out?

A South Carolina Supreme Court decision rejects rules based on economic protectionism.

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Liquor store
Viorel Dudau

Alcohol regulations in this country could improve dramatically if more state courts would reject bald economic protectionism as a valid basis for lawmaking. That's the conclusion of a new study published last week by the R Street Institute, a free-market think tank in Washington, D.C.

The new study, Could Economic Liberty Litigation 'Free the Booze'?, uses the hook of a recent South Carolina court case to suggest—hopefully—that we may be seeing the dawn of a new period of much-needed state alcohol deregulation.

The lawsuit in question concerned section 61-6-140 of South Carolina's Alcohol Beverage Control Act, which stated that "[n]o more than three retail dealer licenses may be issued to one licensee[.]" The case involved national alcohol beverage superstore Total Wine, which owns three locations in South Carolina but was rebuffed by the state in its efforts to open a fourth. Total Wine sued to overturn the South Carolina law.

The state, the court found, "offer[ed] economic protectionism as the sole justification of this extreme business regulation." The court determined the state's "only justification for these provisions is that they support small businesses."

Thankfully, the court was unwilling to accept that justification.

"The record does not contain any evidence of the alleged safety concerns incumbent in regulating liquor sales in this way," the court ruled. "Without any other supportable police power justification present, economic protectionism for a certain class of retailers is not a constitutionally sound basis for regulating liquor sales."

The court rightly concluded that "'it's just liquor'… is not a legitimate basis for regulation."

While it may seem trite for a court to conclude this, the truth is that in the seven-dozen years since the end of alcohol Prohibition in this country, courts have held time and again that the mere fact a law regulates liquor has indeed been a sufficient basis for that regulation.

But that view began to change after the U.S. Supreme Court ruled in a 2005 case that Michigan, New York, and other states cannot discriminate against out-of-state alcohol sellers. (Alas, I discussed "a new Michigan law that bars out-of-state retailers from shipping wine into the state" earlier this year.) More recently, in 2014, a federal court overturned Florida's inane ban on 64-ounce beer growlers.

The message: federal courts have acknowledged that "it's just liquor" may no longer be a sufficient constitutional basis for lawmaking. But state courts have been mostly loath to overturn alcohol laws within their borders, choosing instead to defer to state lawmakers for whom cronyism and protectionism are legitimate bases for lawmaking.

"From Virginia's food-beverage ratio law, which arbitrarily mandates how much booze versus food a restaurant can sell, to Indiana's cold beer law, which only allows liquor stores (but not gas stations or grocery stores) to sell refrigerated beer, the examples are legion," the R Street report notes.

That's why the South Carolina decision is such a big deal.

"Nearly every state in the country has oppressive alcohol laws that could be ripe for judicial review, and using a litigation-based model allows reformers to circumvent cronyist state legislatures that are often bent on protecting the status quo," said study author Jarrett Dieterle, a fellow at the R Street Institute and editor of DrinksReform.org, in an email to me last week.

"If this model of targeting irrational alcohol regulations through economic liberty litigation takes hold in other states, it could upend the booze world as we know it," Dieterle tells me. "The examples of protectionist alcohol laws across the country are legion and this could be one method of clearing away the antiquated post-Prohibition legal structure that the alcohol industry still labors under."

Dieterle kindly quotes me in the piece for the proposition that the Twenty-First Amendment, which ended alcohol Prohibition, is largely rubbish.

The Twenty-First Amendment "simply shifted much of the power to prohibit and incessantly regulate alcohol from the federal government to the states," I wrote in a column earlier this year. "The Twenty-First Amendment—particularly the language in its second section, and the way lawmakers and courts have interpreted that language—is why we have things like dry counties, happy hour bans, and a mandatory three-tier system in forty-nine of fifty states."

All of those laws must go. And courts should overturn awful alcohol laws that state legislatures fail to repeal.

"If more courts begin to conclude that some ends—such as promoting economic protectionism—remain beyond state governments' proper police powers, it could usher in an era of booze-related economic liberty litigation," reads an R Street press release on the study.

Given the sheer volume of awful state alcohol laws, alcohol producers, sellers, and drinkers alike should welcome that era's potential arrival with open arms.

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  1. Another citizen educated.

    http://abc6onyourside.com/on-y…..-hot-water

    1. That’ll teach her to live somewhere years after some criminal lived there. She should thank the cops for not killing her out of hand.

    2. “They thanked her for cooperating and left”

      Jesus, what more do you freedom freaks want from them??

    3. Borrowing from a DC cop: “Due diligence is whatever I say it is.”

    4. Small price to pay for the boys in blue keeping us safe from icky drug users.

  2. Not that it would have probably mattered but I’m sure if this girls parents would have been cops or one of the vanguard an Amber alert would have gone out immediately.

    http://www.foxnews.com/us/2017…..dfill.html

  3. ERSATZ EMULSION WOES

    Target Tosses Toxic Toppings

    Earlier Thursday, Target remotely disabled its cash registers from checking out Hampton Creek products, said the spokeswoman. This lock made it impossible for consumers to purchase items from Hampton Creek, she said. The company also sent an alert to its stores ordering employees to begin removing Hampton Creek products from shelves.

    1. What do they know?

      How many vegan victual victims are out there?

      Reason:Shameless Shills ?

    2. So the market works. We don’t need the FDA out the USDA. Shut them down.

      1. YES!

  4. I’m not sure the exact liquor laws here in Ohio. I do know that some years back we used to have to purchase from State run stores which always seemed to be located sparsely in the hood. We can now but our liquor at Kroger’s. The selection not that great though. They have your basic swill plus usually a

    1. Few top shelf brands of each type. But given the recent uptick in the number of high quality Bourbons and Rums I would like to see a much better selection.

      1. Try Weilands in Clintonville. Great selection, knowledgeable staff.

        1. Cool thanks! I’ve heard about Weilands. I’ll stop at Wildflower Cafe for some fried chicken and hit Vance’s to look at guns while I’m in the neighborhood.

          1. There is a gun shop north of Weilands on Indianola.

            1. Yeah, I stopped there last time I was at Wildflower. Last year some time.

      2. Well you won’t see a better selection at Kroger’s or any other national retailer. All you’ll see is different brands of the big national/global distillers/brewers. Whatever big companies are able to get IPO/mezzanine money from however the Wall St primary dealer cartel has divvied up the ‘alcoholic beverages industry’ into its own protected ‘nationally-financed alcoholic beverages industry cartel’.

        And their best way of protecting themselves is to make sure that no small non-privileged brewer/distiller ever gets shelf space. No shelf space – no sales competition. And even better – they can rely on Reason to produce periodic articles justifying THAT protectionism by calling it ‘free trade’ and blasting the other smallguy/state-level ‘protectionism’ as ‘protectionism’. And if that doesn’t work, then call for a global ‘free trade agreement’ with ISDS clauses so that the bigger protectionism gets conducted behind closed doors in smoke-filled rooms in Davos.

        Ain’t economics neat when it’s turned into just a 2-bit whore.

        1. Correct, after the retail level of protectionism is dismantled then it will be time to work on the production level protections.

          By the time that is accomplished I’m sure there will be a whole new retail cartel to dismantle. Rinse and repeat until the universe heat-dies.

          1. Or we can acknowledge that there is no such thing – in the real world – as a nice easy no-brainer Manichaean choice between ‘free trade’ and ‘protectionism’. Some choices may lean a bit one way but probably just as often the choice is decision between favoring a protectionism that calls itself such or is open – and a protectionism that calls itself free trade or is hidden. Or a protectionism that favors the small vs a protectionism that favors the large. Or a protectionism that favors decentralized decision-making v one that favors centralized/global decision-making.

            Resigning oneself to playing eternal whack-a-mole – or creating an ideology that favors whoever is able to buy the best words to frame the argument – well that’s no solution.

            1. Resigning oneself to playing eternal whack-a-mole is the only solution when the majority of the population is convinced the gov’t has a role in private transactions beyond prosecuting fraud, theft, etc.

              People “buying the best argument” is the end result of inserting legislation into commerce.

              1. Resigning oneself to playing eternal whack-a-mole is the only solution when the majority of the population is convinced the gov’t has a role in private transactions beyond prosecuting fraud, theft, etc.

                In the case of this SC law, if there is a ‘power’ behind it it is probably wholesalers or maybe local producers. If there is a ‘power’ behind getting rid of that law, it is a national wholesaler or national producer. And since this is part of a bigger ‘get rid of all state-level regs re liquor’, it also has Wall St’s fingerprints all over it.

                Anarchos find it very easy to pick sides and spout easy slogans directed at easy enemies. Libertarians shouldn’t be picking sides – esp since I can’t see where half the market (the consumer) is at all in this.

                Govt DOES have a role. Adam Smith saw that. Hayek saw it. The Constitution sees it. Are those three all just commie statists?

                1. Govt DOES have a role.

                  Yes, arresting someone when they walk out without paying for the merchandise, or when it turns out that’s Malk in the jug labeled “Milk”.

                  Prohibiting the lactose intolerant from purchasing milk, not so much.

    2. The laws are still the same. Kroger has simply become licensed as a state agent and wields their near-monopoly power ruthlessly,

  5. Does anyone else with an Android have the issue where the submit and preview buttons are inside the comment box and covers up the text instead of below it? This is a fairly recent phenomenon and quite annoying.

  6. There are so many snowflakes melting in this video that I’m expecting the oceans to rise by several feet.

    https://www.youtube.com/watch?v=tbmk10lrxy0

    1. Beyond awesome.

    2. Lol. That was great:)

  7. Alcohol is a gateway to sex trafficking, illegal immigration, opioid abuse and the Zika virus. We have a civic duty to engage in a moral panic over loosening the regulation of alcohol, but I’m sure you’re just fine with small children being able to just stroll into any convenience store and walking out with 5-gallon buckets of vodka for pocket change. What kind of monster advocates making liquor just as easy to acquire as assault rifles and meth?

    1. I won’t be happy until there is booze, drugs, and guns vending machines on every corner next to a nice selection of hookers. All legal and untaxed.

      1. Well, well, well. Look who’s gunning for McAfee’s 2020 running mate.

        1. Oh we would be quite the pair. As far as I know, I’m not under suspicion for murder though. Of course I don’t remember most of my late teens or early 20’s. Not sure I would even be able to refute any crazy stories. More than likely I would be saying I don’t remember but sounds like something I would do.

          1. That’s McAfee’s problem right there – hiding from the murder charge. He should come out and embrace it. After all, its not like there’s a single president *ever* who doesn’t have people killed while he’s in office.

            McAfee can point out that not only has he already popped his murder-cherry, but unlike several of our latest presidents, has actually done the deed personally so this is something he understands – how you can kill a man.

            1. “The man who passes the sentence swings the sword.”

              1. Don?t give some people ideas!

        2. Better McAfee than the coathanger abortion republican or the bomb-throwing anarchist. But there is another Gary Johnson of sound judgment in Austin Texas, whose libertarian credentials are impeccable–someone who has actually been party member for at least 40 years (as opposed to six months). The Gary Johnson brand has more than tripled our vote slice, and the name brand recognition could well be recycled to bring us up to 8 million votes or (heart attacks or strokes willing) actual de jure victory over and above the de facto law-changing clout the party now enjoys.

      2. You should see my sketches of my hooker vending machine. Gonna call it the HookerMatic 500.

        1. I’m picturing an 8×10′ uhaul trailer with a credit card scanner on the door, wifi antenna on the roof.

          1. An RV might be classier

  8. I guess you didn’t hear Pennsylvania governor and economic genius Tom Wolf informed everyone that competition causes prices to rise.

    1. Did the state learn everything it knows from the mafia or was it the other way around? I know the state doesn’t like the competition.

    2. Even a senile old fool like Bernie Sanders understands that competition = unnecessary, wasteful, expensive duplication of services. Who needs 23 different kinds of deodorant? Or more than one store selling deodorant? Monopoly providers can focus on efficiency and customer service rather than focusing on profits, which is why government services like the Post Office, the DMV and the public school system are held to be the gold standard of service delivery. Just imagine how awful utility delivery would be if your local electric or water or gas company had to compete for customers.

  9. I’ve noticed a few other court decisions coming down on the side of economic liberty in like ways; nothing huge, but enough for me to notice. Don’t know if it’s a real sea change, or if it’s just me being more woke liberty-wise. There could well have been previous economic liberty decisions which I didn’t pay attention to and which other courts and legislators also ignored, and maybe that’s the case here too.

  10. Including the 21st Amendment made this a good article, despite the whiff of monopolization by cartels. Even the non-communist Liberal Party included in its 1931 wet plank the abolition of the “saloon” –that dauntless competitor against the klaverns of brainwashing for mystical coercion. When that plank was copied by the Democratic Party for the first of five consecutive victories, denigration of the saloon–a wholesome family tradition in Austin, Texas–was kept intact. The current Democratic Party could learn by example that “repeal prohibition” carries more voter appeal than “ban electricity and tax the air we breathe!” Failing that, the Dems could profitably move their party to China or Europe and leave the Libertarian Party to slug it out with God’s Own Prohibitionists.

    1. Prohibition is proof that unbridled power is the most dangerous and addictive intoxicant known to Man.

      1. Hank Philips is proof that we waited too long to ban lead in paint.

        1. Did that ban really have an effect? Titanium is just so much better at being white, I assume it would have taken over regardless.

    1. Putting minors back to work? Isn’t that the platform of Epstein and Clinton?

  11. Must have closed down for, what? An early 5th for the 4th? My (former) contributions used to fund the weekend staff? The Gay Pride Parade blocked the way to the office?

    1. The Gay Pride Parade blocked the way to the office?

      You say that like it’s not a legitimate reason to take a sick day.

      1. Could always go in the back way

        1. And it’s obvious that the gay women get their licks in, right?

          1. Someone has to clean the carpet. Normally I’d volunteer to help but probably not with that crowd.

            1. Afterward they can go to the clam digging festival.

  12. I found a great site that focuses on stay at home mom’s complete guide to gaining a serious amount of money in very little time. While being able to earn an passive income staying home with your kids. If you are someone who needs more money and has some spare time, this site is perfect for you. Take a look at…

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  15. I see no mention here; someone at Glib did so:

    “Essential California: The dream of single-payer healthcare in California dies, for now”
    […]
    “The dream is dead – for now”
    http://www.latimes.com/newslet…..story.html

    Ah, yes, the dream of never having to pay for what you want! The dream that other people will simply hand over whatever you wish for!
    The fucking dreams of the slavers…

  16. This is why new Android applications are coming frequently. Developers always look for the suitable mobile technology to work upon. Android is that mobile technology which provides developers as well as users interesting & wider options.

  17. Only 57 comments over the weekend so far? That’s kind of fucking pathetic!

    I guess that’s what it’s like around here now when Tulpa, Weigel, and Crusty Citizen are off doing whatever it is that they do.

  18. There is now duplicate plus more regulation of wineries and breweries. A loophole was left in the FSMA (Food safety Modernization Act). So they are now inspecting breweries and wineries as food processors using food industry based GMP’s (Good [read as Government] Manufacturing Practices). Also they have given wine grapes a fresh use designation rather than a processing designation, meaning they will have to conform to the new produce rules. Wine kills human pathogens and has no history of food safety issues, and since licensing passed in an Ohio 2009 budget bill (by surprise) we have been subject to food processing licensing and regulation by the Ohio Department of Agriculture. This is duplicate of licensing and regulation as provided in Ohio and Federal TTB liquor codes. Many states exempt from this sort of duplicate licensing and regulation. Ohio’s and FDA’s regulation is superfluous, unnecessary, duplicate and in Ohio also discriminates against Ohio wineries by wineries from out of state that are not subject to the same food processing licensing and regulatory costs that sell wholesale in Ohio. As a traditional artisan winemaker that values microbial diversity in the winery environment I also find the regulation is in direct opposition to my winemaking principles. http://www.FreeTheWineries.com or http://www.facebook.com/FreeTheWineries

  19. I found a great site that focuses on stay at home mom’s complete guide to gaining a serious amount of money in very little time. While being able to earn an passive income staying home with your kids. If you are someone who needs more money and has some spare time, this site is perfect for you. Take a look at…

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  20. I’m certainly not in favor of excessive alcohol regulation, but I will point out that one of the unintended benefits of this Draconian system is that it’s become a cultural norm in some cities and states for restaurants not to carry a liquor license which has led to a huge upswell of BYOB restaurants. They encourage customers to bring their own bottles of wine, beer, or whatever else. No corkage fees. It ends up being a pretty great “feature” for most people, especially if you go to a nice restaurant and want to bring a nice bottle of wine without spending $250 at 10x markup.

    Cities that don’t have excessive alcohol laws typically don’t have the same atmosphere.

    Point is — humans do a remarkable job of adapting to stupid bullshit and trying to make it better. Reminds me of the Whos after the Grinch cleaned them out.

  21. Alcohol should not be regulated economically.
    Competition in ALL businesses is good for the consumer.

    ABUSE of alcohol, or any drug that impairs senses, should be regulated punitively to a degree comparable to the damage or rights infringement such abuse may cause.

  22. texas won’t repeal any of their alcohol laws because the bible thumpers won’t stop pushing jesus like heroin

  23. Some choices may lean a bit one way but probably just as often the choice is decision between favoring a protectionism that calls itself such or is open – and a protectionism that calls itself free trade or is hidden.

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