7th Circuit can’t find cold beer in Constitution

Cold beer and the U.S. Constitution. Linking together these revered but distinct foundations of America seems a bit off.

More traditional pairings might involve opening a Coors Light and a Sports Illustrated or uncorking a 2007 Côté Tariquet, Côtes de Gascogne while reflecting on the 21st Amendment (ending Prohibition).

Not today. It’s finally time to join two relics of the colonial era, a cold brew and the nation’s founding document, or better yet, report on the federal appellate court doing it.

If only the 7th U.S. Circuit Court of Appeals had a better sense of timing, it would have issued its decision in Indiana Petroleum Marketers and Convenience Stores Association v. Cook, No. 14-2559 (7th Cir. Dec. 14, 2015), for the Fourth of July, not Christmas, when the American public might better appreciate and even celebrate the unique union of these two national treasures.

On tap before the 7th Circuit was the constitutional validity of imposing limits on selling cold beer. More precisely, the issue at bar involved whether the 14th Amendment prevented a state from bottling up cold beer sales for certain stores but not others.

An association of Indiana convenience stores asserted the equal protection clause was violated by a state regulation permitting package goods stores to sell cold beer, while banning its sale in grocery and convenience stores.

Curiously, warm beer sales are permitted by all, but the Indiana Alcohol and Tobacco Commission permitted only package liquor stores to offer chilled (aka drinkable) beer.

Flowing through the court’s consideration (last bad pun, I promise) of the stores’ challenge was that under accepted equal protection standards, no suspect classifications were raised by Indiana’s cold-beer statute, and no red-hot issues commanded the court’s attention. The appropriate judicial level of review was a cold one (sorry, that one slipped through), meaning the rational basis test was all that would apply here.

As many lawyers not currently practicing constitutional law might recall from law school, rational basis review required the convenience store plaintiffs to show that Indiana’s cold-beer scheme not only treats similarly situated stores differently, but that the different treatment is not rationally related to a legitimate state interest.

Under established case law, a statute subject only to rational basis review begins with “a strong presumption of validity,” and a challenger must “negate every conceivable basis which might support it” to carry its burden. The statute will be upheld if a court finds reasonable facts that provide a rational basis to support the regulatory scheme.

The regulation’s defense featured its purported goal of curbing underage drinking by limiting the sale of “immediately consumable cold beer.” Package liquor stores face tighter control in Indiana, including barring those under 21 from entering or working at the premises and operating during prescribed hours.

“[B]eer is beer, and grocery and convenience stores already sell it, just not cold,” responded the convenience stores, and besides, “grocery and convenience stores are permitted to sell chilled drinks with higher alcohol content (like wine coolers) so why not chilled beer,” they reasoned.

The policy arguments didn’t stop there.

The record of compliance by Indiana grocery and convenience stores with state alcohol laws is better than liquor stores, they noted, and their stores are frequented by the police and by adult customers, which operates to deter underage buyers.

Last call for the convenience stores (blame that one on my editor) was that placing the beer in refrigerators made it less accessible to those under 21 than its positioning in a store when sold warm.

The 7th Circuit chose not to challenge any of these reasonable, common sense positions, nor was it required to do so.

The convenience stores’ “mode of argument doesn’t suffice under rational basis review.” Restricting cold-beer sales to package goods stores was rationally — if imperfectly — related to the legitimate goal of limiting access to consumers over 21.

Unable to defeat “every conceivable basis” of support for the statutory scheme, the stores’ challenge could not sustain the “heavy legal lift” they faced.

As with many strong policy arguments against a statutory scheme, the 7th Circuit concluded those advanced by the convenience stores were better directed to the legislature than to the federal courts. Cheers!

To view this article as it appears in the Chicago Daily Law Bulletin, click here

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