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Convenience stores continue fight for cold beer

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Indiana convenience stores are pushing forward with their effort to persuade the courts to upend the state’s restrictions on cold beer sales.

On Tuesday the Indiana Petroleum Marketers and Convenience Store Association announced it is appealing a federal court ruling that upheld Indiana’s alcohol law and has filed a complaint in Marion Superior Court.

“The fight for common sense, fair competition and rewarding – rather than punishing – responsible beer sellers continues,” said plaintiffs’ attorney John Maley of Barnes & Thornburg.

Patrick Tamm, CEO of the Indiana Association of Beverage Retailers, said he was not surprised by the notice to appeal, charging the convenience stores have already spent a considerable amount of money on this litigation.

“These plaintiffs are large corporate interests with deep pockets and have much to gain in overturning Indiana law – even as they admitted in their own testimony calling their gas stations and convenience stores that sell alcohol ‘profit centers.’”

In 2013 the convenience store association, along with Ricker Oil Co., Thornton’s and Freedom Oil, filed a complaint in federal court, challenging the constitutionality of the state statute which permits only liquor stores to sell beer cold. Richard Young, chief judge of the U.S. District Court for the Southern District of Indiana, granted summary judgment in favor of the state, finding the alcohol laws were rational.

The appeal to the 7th Circuit Court of Appeals argues the District Court committed legal error.
 
In the complaint filed in Marion County, the convenience stores revive the state claims that the federal court relinquished. In particular, the association argues that the cold beer prohibition violates the Equal Privileges Clause of the Indiana Constitution.

Maley maintained the purpose of the clause is to prevent state government from favoring one business over another. The Indiana Supreme Court has repeatedly upheld that precedent, most recently doing so in February when it overturned Evansville’s smoking ordinance, he said.

“That’s what the antiquated cold beer prohibition does in this setting. It picks a winner and establishes a monopoly,” Maley said. “Hoosiers pay more as a result and public safety is put at risk because a less-responsible retailer is given that privilege. The Indiana Constitution prohibits that.”

Maley’s reference to public safety highlights the main thrust of the association’s argument.

As in its original complaint filed in federal court, the association points to statistics from the Indiana Alcohol and Tobacco Commission that show liquor stores have been cited more time for selling to minors than groceries, pharmacies, and convenience stores combined. The plaintiffs assert that limiting cold beer sales to package stores is not rational because their compliance rate is poor compared to the other retailers.

However, Young found the statistics to be problematic. He said it is “pure speculation” to conclude the other businesses will maintain their compliance rates if they are allowed to sell cold beer. In fact, he points to testimony from Thornton’s, Inc., which noted the retailer has been cited for selling to minors in state’s were cold beer sales are permitted.

Maley and Scot Imus, association executive director, maintained the compliance rate would not fall if the retailers were allowed to put beer in their refrigerators. They argue convenience stores deter underage drinkers because the businesses are well-lit, filled with people and frequented by police. They say clerks will not forget to comply with the law against selling to minors once the beer is cold.

Moreover, they said, the beer would be removed from the shelves and floors, where it is easily seen by children and teenagers, and placed further away in the coolers where it would be less visible and accessible.

“The reason (convenience stores) do better is because of the nature of the industry,” Maley said of the plaintiffs’ compliance rate. “They are responsible sophisticated businesses, not one-off liquor stores that have an incentive to sell that next 12-pack because they need the three bucks profit.”

Early next month, Maley said the plaintiffs will be filing a motion in Marion Superior Court for summary judgment. Also, he said, the effort to get the Legislature to rewrite the state law will continue.

 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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