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Convenience store association says cold beer ban discriminatory

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Along with the usual reasons including giving consumers more options, providing price competition and sparking new investment in the state, Indiana convenience store owners have added a new argument to their push to sell cold beer – it’s their constitutional right.
 

beer-cooler-15col.jpg Scot Imus (left), executive director of the Indiana Petroleum Marketers and Convenience Store Association, and Jay Ricker of Ricker Oil Co., are advocating that convenience stores be allowed to stock beer in their coolers. (IL Photo/ Perry Reichanadter)

Three gas marts have joined the Indiana Petroleum Marketers and Convenience Store Association to file a complaint in federal court, charging that the state’s current practice of regulating beer by temperature is arbitrary and leads to discriminatory treatment that violates state and federal constitutions.

The complaint, Indiana Petroleum Marketers and Convenience Store Association, Thorntons, Inc., Ricker Oil Company, Inc., Freedom Oil, LLC and Steve Noe v. Alex Huskey, in his official capacity as chairman of the Indiana Alcohol Tobacco Commission, The Indiana Alcohol and Tobacco Commission and The State of Indiana, 1:13-CV-0784, was filed May 14 in the U.S. District Court for the Southern District of Indiana.

For nearly the last five years, the Indiana Petroleum Marketers and Convenience Store Association has lobbied the Legislature unsuccessfully to be able to sell cold beer. Now the organization is turning to the courts.

Changing alcohol laws through means other than the General Assembly is not uncommon, said Scot Imus, the association’s executive director.

As an example, he pointed to the 1963 bulletin issued by the Indiana Alcoholic Beverage Commission that authorized liquor stores to sell cold beer. The Indiana Supreme Court upheld the cold beer sales in 1964, and the Legislature finally followed suit when it incorporated the language of the bulletin into the 1979 Acts.

However, Attorney General Greg Zoeller maintains alcohol laws are the purview of the General Assembly rather than the judiciary. The attorney general’s office is representing the ATC and defending the statute, which as Zoeller pointed out, is the current decision of the elected members of the Legislature.

“This subject has been debated in the legislature for a number of years and it will be the state’s position that the legislature is the proper forum for any changes to our laws and not the courts,” Zoeller stated May 14 in response to the complaint.

Constitutional grounds

In their complaint, the Indiana plaintiffs focus on the single issue of whether the regulation of beer by temperature is constitutional.

“We are the only state in the union regulating who can sell beer based on temperature,” said John Maley, Barnes & Thornburg LLP partner, who represents the plaintiffs. “There is no rational basis for this 50-year-old disparate treatment, particularly when liquor stores adjoining the convenience stores can sell chilled beer and adjoining convenience stores can sell only warm beer but can sell chilled higher-content drinks such as wine.”

The group asserts the state’s limitations on sales of cold beer violate the equal protection clause and the equal privileges clause of the U.S. Constitution. Also, the filing charges Indiana’s practices violate the equal protection clause of the state’s constitution.

Finally, the complaint contends that the law also violates Article 1, Section 1 of the Indiana Constitution.

This section echoes the Declaration of Independence in its provision, noting that all people have the inalienable rights of life, liberty and the pursuit of happiness. The convenience store association then points to the Indiana Supreme Court decision in Herman v. State, 8 Ind. 545, 558 (Ind. 1855), which determined that “the right of liberty and pursuing happiness secured by the constitution, embraces the right, in each compos mentis individual of selecting what he will eat and drink.”

The complaint by the Indiana retailers comes several months after a similar group in Kentucky was successful in making their argument against a state statute. Those plaintiffs charged that barring grocery and convenience stores from selling liquor and wine while permitting drugstores and others to do so is differential treatment that violates the equal protection provisions of the U.S. and Kentucky constitutions.

In Maxwell’s Pic-Pac, Inc. v. Dehner, 887 F.Supp.2d 733 (2012), the U.S. District Court Western District of Kentucky at Louisville agreed.

“Here the attenuated or non-existent relationship between the Statute’s classification and any number of potential legislative goals leaves the Court with no other conclusion than that the Statute offends the Equal Protection Clause and, for that reason, must be struck down as unconstitutional,” Judge John Heyburn II wrote for the court.

The defendants in the Indiana case have until July 5 to respond to the complaint. A pretrial conference has been scheduled for July 24 before U.S. Magistrate Judge Debra McVicker Lynch.

To John Livengood, president and CEO of the Indiana Association of Beverage Retailers, the pivot to the judicial branch is the equivalent of a Hail Mary pass by a team that could not get to the 20-yard line.

States have the right under the 21st Amendment of the U.S. Constitution to make laws regarding how alcohol is sold, Livengood said. Consequently, he believes the convenience stores have an uphill battle ahead.

Legislature will act

Under Indiana law, package liquor stores with a liquor dealer’s permit can sell warm or cold: liquor, beer, wine and malt beverages. Yet, they cannot offer much beyond that other than tobacco products, bar supplies and lottery tickets.

Convenience stores, defined as selling goods that may include milk, bread, soda, snacks and automotive fuel, are allowed to sell alcohol under a beer dealer’s permit. Indiana statute prohibits holders of beer dealer’s permits to offer beer that has been iced or cooled.

Changing the Indiana Code to enable more retailers to sell beer cold always comes back to the basic question of “What is good public policy?” said Sen. Ron Alting.
 

alting Alting

The Lafayette Republican is the current chair of the Senate Public Policy Committee and served in a leadership position on the Interim Study Committee on Alcoholic Beverage Issues during the summers of 2008 and 2009.

In the end, the committee unanimously recommended to the General Assembly that only package liquor stores be allowed to sell beer cold.

“I just don’t buy this that we’re living in prehistoric times here,” Alting said, referring to a criticism of Indiana’s alcohol laws.

In fact, he said the businesses that are complaining do not realize how good they have it under current statute and, he warned, they should be careful what they wish for.

While some legislators have introduced bills easing the limits on cold beer sales, other legislators have floated bills that added restrictions on grocery stores, convenience stores and pharmacies. These attempts would have required the food and drug stores to segregate the alcohol into a separate area where access was restricted to adults 21 and older.

However, Imus said the previous measures proposed in the Statehouse included lifting restrictions on liquor stores. He called it absurd that liquor stores can’t sell limes to go with the Corona beer.

Livengood countered the loss of cold beer sales would be a devastating blow to Hoosier liquor stores. Other states that have a viable package liquor store industry typically provide something to those entities that is not available to the other retailers, he said. While some states may make liquor and wine sales exclusive to liquor stores, Indiana has chosen to make these stores the proprietor of cold beer.

Alting is doubtful the convenience store owners will prevail in their lawsuit. He sees the state as clearly having the right to regulate alcohol but concedes no one can be certain of what the court will decide.

And if the court agrees with the convenience store association, Alting said the Legislature will not just sit back and pop a cold one.

“It would bring a lot of bills drafted by a lot of colleagues in the House and Senate,” he said.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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