ILNews

Convenience stores continue fight for cold beer

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT