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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. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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