Utah Lifts Wine Advertising Ban
OportoRAH's Editorial: Thank the lord that this Circuit Court is based in Denver and NOT in Salt Lake City. It is almost inconceivable that until now, servers were not able to actually ask customers if they want a drink nor leave wine lists for guest's to peruse. Who said you can't teach an old dog new tricks?
Florida Interstate Wine Ban Upheld:
Federal Magistrate Finds That Virginia's Ban on Interstate Wine Shipments is Discriminatory and Unconstitutional
The suit was filed in November, 1999 on behalf of consumers Clint Bolick and Robin Heatwole, both Virginia residents, and was joined by three wineries: Dry Comal Creek Winery of Texas, Oregon's Hood River Vineyards and Miura Vineyards in California. In his well-reasoned comprehensive recommendation, which addressed issues and discusses arguments not previously considered by the federal courts in Indiana and Florida in upholding similar bans in those states, Judge Dohnal ruled that Virginia statutes that "specifically authorize the states to erect absolute barriers to other states to trade in alcohol" are unconstitutional. He thus found that Virginia's statutory scheme was based on economic protectionism" designed to protect the interests of in-state wineries and alcoholic beverage sellers at the expense of out-of-state wineries. In doing so, Judge Dohnal declined to follow the rulings of the other federal courts because they were "inconsistent with the law as developed by the Supreme Court" and because he was required to follow the controlling law of the Fourth Circuit Court of Appeal (in which Virginia is located) and of the Supreme Court. "We are quite pleased that the constitutional rights of out-of-state wineries to directly sell wine to Virginia residents and of Virginia residents to receive it have finally been vindicated and protected," stated Matthew S. Hale, a Williamsburg, Virginia attorney representing the plaintiffs. His co-counsel, Daniel R. Ortiz, the John Allan Love Professor of Law, and Joseph C. Carter, Jr. Research Professor of Law at the University of Virginia Law School in Charlottesville, Virginia expressed a similar view: "While the fight to protect the constitutional rights of all Americans to engage in the interstate sale and purchase of wine continues unabated, I am heartened that the Federal Courts have finally recognized that States may not close their borders to direct sales of wine by out-of-state wineries under the dormant Commerce Clause and the Twenty-first Amendment of the United States Constitution."
In ruling on the law, Judge Dohnal agreed with plaintiffs and amicus curiae Coalition for Free Trade that the Twenty-first Amendment of the Constitution and other federal laws do not give the states unlimited authority over the importation of alcohol. Finding instead that the Twenty-first Amendment and federal law merely allow a "dry" state to remain "dry" by forbidding the importation of alcoholic beverages, Judge Dohnal ruled that "if a state, like Virginia, decided not to remain dry, it cannot 'hide behind' legislative history to protect any discriminatory scheme." As Judge Dohnal stated: "Given the law and the stated policy, Virginia cannot claim with a 'straight face' that its ban on direct shipment is for any reason than economic protectionism."
He also found that while Virginia did have a legitimate interest in temperance, collection of tax revenues from the sale of alcoholic beverages, and keeping wine out of the hands of minors, those "concerns are overshadowed by economic considerations" and that the State and Wine Wholesalers had failed to meet their burden of establishing "there exists no other means of promoting temperance, preventing diversion, and addressing the other legitimate public safety and health objectives involved" other than the complete ban on direct marketing by out of state wineries and breweries to Virginia residents. The next step in the process is that the parties may appeal Magistrate Judge Dohnal's decision to Federal District Judge Williams by the filing of objections by August 29, 2001.
CONTACT:
Matthew S. Hale, Esq. (757) 599-9261
Prof. Daniel R. Ortiz University of Virginia Law School (804) 924-3127
Coalition For Free Trade Tracy Genesen, President (916) 498-3500
Senator Wants Two Drink Minimum on Airplanes
You're settling into your long flight to Seattle and sipping the last of that Chardonnay, when you summon the flight attendant for another glass. "Sorry," she says, "but I'm afraid you've had enough. Two's the limit." Quotas in the cabin? It could happen. U.S. Senator Dianne Feinstein has asked airlines to limit the number of drinks they serve to passengers in an effort to curtail the number of "air rage" incidents.
Airlines have quickly rejected the idea, and flight attendants -- while saying they're alarmed by air rage -- also say they aren't eager to become the drink police. Nevertheless, in her letters to seven major airlines, the California Democrat urges their managements to set the limits voluntarily or face possible congressional action. "In view of the 5,000 'air rage' incidents each year," Feinstein wrote, "I believe it is time for the airline industry to set standards voluntarily, or else Congress may well step in." Her letter was sent to the CEOs of Delta, Continental, Northwest, US Airways, United, Southwest and American.
She said she's writing legislation that would limit passengers on domestic flights to two drinks. "I hope that introducing this legislation will not be necessary and you will be willing to voluntarily set limits on how many drinks a passenger can consume," said Feinstein, who could not be reached for comment. "Absent that, I am prepared to proceed with the legislation."
Airlines: 'Poor public policy'
Alcohol has been cited as a factor in some disruptions -- incidents that flight attendants and others say are on the increase. The Federal Aviation Administration listed 306 reported incidents involving unruly passengers in 1999 and 314 incidents in 2000, up from 146 in 1995. There have been 100 reported incidents so far this year. In one case earlier this year, a United Airlines flight from San Francisco, California, to Shanghai, China, was diverted to Alaska when twin sisters were accused of interfering with the crew. One was accused of choking a flight attendant and the other was accused of hitting two flight attendants and the plane's captain. Witnesses said the twins had been drinking.
The Air Transport Association, which represents the major airlines, maintains that Feinstein's proposal is the wrong way to address the problem. "This particular proposal represents poor public policy that would unfairly and unilaterally penalize the hundreds of millions of law-abiding, cooperative passengers simply because of the disruptive and unruly and oftentimes illegal conduct of a few," ATA spokesman Michael Wascom said. He said that airlines already limit alcohol consumption by not serving drinks to intoxicated or underage passengers, and may forbid some passengers from even boarding planes. "There are all types of safeguards already inplace," he said.
Flight attendants oppose limits:
A spokeswoman with the Association of Flight Attendants -- which is urging airlines and the government to do more to combat air rage -- said the organization agrees with Feinstein's objective but not her approach. It wants airlines to establish what it terms more responsible alcohol policies, including not serving alcoholic drinks before takeoff, serving only one drink at a time and never using free drinks as compensation for delays or cancellations. "The problems we see with a two-drink limit is that if a limit is imposed, then airlines need to make sure flight attendants have the tools to enforce that limit," spokeswoman Dawn Deeks said. She noted that with more than a dozen attendants on some larger flights, the staff would have a hard time monitoring how many drinks passengers were served. Fliers also might bring their own drinks on board or have a drink served to a traveling companion. The limit also might prompt some to drink more heavily beforehand. "It could potentially cause a lot more tension and a lot more problems on the aircraft," Deeks said.
An advocate for passengers also questioned the wisdom of the approach. "I'm not saying it's not a valid area to be concerned about, but we need to not isolate one particular component of a larger problem and think that's going to really help," said David Stempler, president of the Washington, D.C.-based Air Travelers Association.
Read about the International Wine Challenge and why the NW was not well represented.
The following article was written by Women For Wine Sense member Marlene Rossman. It appeared in Wine Business Monthly's April 2000 issue.
