ILNews

Convenience store association says cold beer ban discriminatory

Back to TopCommentsE-mailPrintBookmark and Share

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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT