NCSLA 2019 Louisville, Part I: Is Temperance Dead or Dormant?

This panel looked at whether temperance was dead or dormant as a justification for liquor regulations and statutes.

The panel consisted of Lester Jones an Economist with the National Beer Wholesalers Association; Sean O’Leary (The Irish Liquor Lawyer), President of O’Leary Law and Policy Group, LLC; Alyssa Wolfe, Acting Counsel to the Director of the New Jersey ABC; and Christine Trout Van Tatenhove, Special Counsel to the Kentucky Speaker of the House.

The Moderator was Jenna Giguere, Deputy Chief of Legal Services, Rhode Island Department of Business Regulation. Jenna did a wonderful job and congratulations to her and her husband who will be welcoming a baby son near the end of August.

 

Lively discussion

This was a lively discussion that invoked a great debate amongst not only the panel but also invoked a lively response from the audience.

Lester believed temperance was dormant and would one day come back with a vengeance.

Sean thought temperance was dead.

Alyssa agreed with him.

Christine did not know whether temperance was dead and coming to that conclusion was very difficult.

 

Lester:

Lester provide an economic and statistical analysis to the temperance question. He showed statistics that the availability of alcohol is increasing and that we are demanding more access. Alcohol sales are spreading to barbershops, beauty salons, and many other nontraditional places.

In addition to the spreading of access, governments are also passing laws that loosen alcohol restrictions. For example, many states passed legislation allowing Sunday sales. They also passed legislation allowing sales of wine and spirits in grocery and convenience stores.

So, with this statistical analysis it would seem that temperance advocates are fighting a losing battle.

But then Lester unleashes the beast that he believes will bring back temperance.

With alcohol he believes there are some underlying societal problems such as liver disease and cirrhosis, suicide, and homicides. Since 2010 the chronic liver disease/cirrhosis numbers have gone up, which shows a troubling trend. Although alcohol-impaired driving fatalities have remained roughly the same since 2010, the incidents of these events offer a troubling side of alcohol.

The conditions that result from alcohol, affect a wide range of health risks and outcomes, these conditions are known as social determinants of health (SDOH). Lester believes that alcohol is a big part of SDOH.

What he believes will drive temperance is when the cost of alcohol starts affecting governments, health insurance plans, and businesses. The dollars spent to fight the affects of alcohol will force these entities to implement temperance-oriented policies.

Lester also brought up the point of how technology could help with temperance. The iPhone and other tracking devices could show employers whether an employee is spending an abundant amount of time in the bar, thus hurting productivity at work and causing the business to lose money. This tracking could hold employees accountable for their drinking.

In Lester’s point of view, temperance could come roaring back as the effects of alcohol become a concern.

 

Sean:

Temperance is being killed by legislation and case law.

Legislation: Virginia passed a law to make the whole state wet. Previously, there were several dry counties in Virginia. If a county wants to become dry, it is required to setup an election and vote itself dry. The state imposes a burden on any county that wants to become dry.

In Illinois legislation was introduced to make home delivery a state wide law and take away the discretion from the local governments to control how liquor is delivered inside their borders. Many localities in Illinois restrict the delivery of alcohol, this bill would negate their powers.

The bill is yet to pass but it shows a trend towards the local control of liquor issues becoming disseminated.

Case law: In the Retail Digital Network case out of California, the 9th Circuit rejected temperance as a justification for a law that restricted 1st Amendment rights. The 9th Circuit rejected its own precedent in the Actmedia case which held that temperance could be utilized as a justification for restricting 1st Amendment rights. The 9th Circuit although upholding 1st Amendment restrictions based on tied-house concerns, shot the temperance justification. Retail Digital Network, LLC v. Prieto , 861 F.3d 839 (9th Cir. 2017).

In the Missouri Broadcasters Association case, out of the Federal Western District of Missouri, the court shot down the state’s advertising restrictions. The State posited that the advertising restrictions were necessary to curb underage drinking and overconsumption.

The court held that the plaintiffs successfully showed that even though alcohol advertising dollars went up, consumption of alcohol went down. However, the most important point of the case is that the state could not provide evidence to back up its point that the speech restrictions were necessary to advance its goal of temperance. Hence, this case stands for the proposition that if the state can’t provide evidence for its temperance theory, then the law will be shot down!  Missouri Broadcasters Association v. Taylor, Case No. 2:13-cv-04034-MDH (Western District of Missouri, 2018)

 

Alyssa:

New Jersey made the switch from temperance being a main part of their law, until the 1980s where it completely disappeared from the language of the liquor laws. The state decided to modernize its statutes in the 80s and took temperance out of the statute.

Temperance was replaced by ten legal principles that guide liquor legal decisions.

This new system has worked because it gives New Jersey a framework on how to decide difficult issues from Ax throwing to a mall that wants over 10 liquor licenses. The framework takes care of serious issues like overconsumption and under aged drinking. The regulatory framework principles work effectively without temperance.

In New Jersey they look at what is the evil we are protecting against, then the state has to articulate some rational basis for why they are protecting against it.

So, New Jersey looks at what is their purpose in regulating the activity. They look at whether the solution furthers that purpose and are there other alternatives to achieve that purpose that might be less burdensome.

New Jersey somewhat uses a Central Hudson type of approach for regulating. They want to do something that makes sense and is not temperance, they look at balancing the needs of the industry versus responsible policy.

Alyssa thinks the framework of the 10 principles provides New Jersey with a sound regulatory scheme.

 

Christine:

Christine didn’t come to a hard conclusion. There is evidence in Kentucky that temperance is alive and evidence that temperance is losing some steam.

There are 15 counties in Kentucky that are completely dry and numerous counties that are partially dry. The majority of counties in Kentucky are dry or partially dry. This would lead one to believe that temperance is alive and well in Kentucky.

However, alcohol proliferation is increasing in Kentucky. 31 brewers have expanded and added an additional $22 million in investment. 25 additional breweries are in expansion mode and adding an additional $6.9 million dollars.

The Bourbon business is expanding rapidly in Kentucky with more than $1.1 billion in capital projects that have been completed or planned over the next five years.

Kentucky law changes have allowed distillers expanded privileges. They may now sell drinks at fairs and festivals and they can ship souvenir packages to visitors, members, and subscribers.

In the retail sphere Kentucky has utilized Entertainment Destination Centers as a way for economic revitalization. Municipalities can now obtain EDCs and minors can enter these areas, even though alcohol is served. The presence of alcohol is a main driver for these EDCs.

For stand alone retail stores, Kentucky now allows delivery of alcohol for grocery/convenience stores. Further, it allows consumers to accumulate points for malt beverage purposes.

But even with this expansion, the laws still provide power for the local communities to limit or deny liquor sales. Local communities can deny Sunday sales, liquor by the drink, and election day sales.

So, Kentucky has a mixed picture on temperance. The laws pertaining to dry counties and towns are still on the books and their power is strong. Yet alcohol sales and opportunities to sell are expanding. Based on this and the previously mentioned factors, it is difficult to come to a hard conclusion on this issue.

 

The Audience’s View

The audience pushed back on the concept of whether temperance is dead. Some members believe that the plethora of public health initiatives against the dangers of liquor show that temperance is not dead. They believe that it is under another name.

They also believe that language that statutes that mentioned public health, safety and welfare are really temperance-oriented laws.

 

Conclusion

This was a lively panel with differing viewpoints and initiated a great discussion. Further, the audience became activity involved.

With all the discussion what is clear is that some think temperance is dead, some think its coming back, and some think it never left!

Not everyone is interested in whether temperance is dead or dormant

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