Nationalize liquor laws…Straight up!

I am arguing in favor of nationalizing liquor laws, by which is meant laws pertaining to the hours of service licensee liability and the taxation of beverage alcohol.  These regulations are currently a mish-mash of Federal, state, local and regional dictums which are very contradictory yet serve entrenched interests.

My argument is not against the serving of commercial interests but rather that these interests should be brought together under one national doctrine.

Nor am I advocating alcohol consumption per se.  I am arguing in favor of national law regarding the sales hours and taxation of beverage alcohol.

Additionally I advocate a national policy regarding licensee liability.  Massachusetts follows the doctrine of Dram Shop liability which can make defendant licensees civilly liable for a claim by a plaintiff.  Additionally, this responsibility extends to the license itself as any crime permitted on premises is applied to the licensee.  I am in favor of Dram Shop liability on a national basis.

In 1984 Massachusetts(MA) adopted a phase-in, known as the “step years,” twenty one(21) for legal drinking with those already franchised as twenty(20) year-old legal drinkers “grandfathered” as legal with the age being increased annually until all in the state of MA were 21 or required to be so in 1986.

Even more than thirty years ago the contradictory nature of liquor laws was apparent as the N.Y. Times noted that MA governor Michael Dukakis said “we have to” change the drinking age so as not to lose an estimated $25.5 million in Federal funds.

  http://www.nytimes.com/1984/12/05

Even more contradictory is that in 1973 MA had made eighteen(18) the legal drinking age following 18 year-olds getting the right to vote in 1971 via the Amendment XXVI.

  https://constitutioncenter.org/interactive-constitution/amendment

Taxes on beverage alcohol are often cited as the rational for local liquor laws.  “Sin taxes” boast the advantage of being a voluntary sales tax for a product that is not essential.  Here in MA taxes are levied on wholesalers and passed along to on-premise providers and retailers.

MA currently taxes at a rate of $4.05 dollars per gallon of wholesale sales which ranks MA 34th. among all states.  On a more practical level this means that a one liter, 33.8 fluid ounce bottle is paying 33.8/128 ounces=$2.64 in MA state tax.  This example applies to 40% alcohol by volume distilled spirits.

However, neighboring New Hampshire has no state liquor tax and is thus able to undercut the prices of MA retailers close to the N.H./MA state line.

  https://taxfoundation.org

Has a MA person become a better person for not participating in what some describe as MA “confiscatory” liquor taxes by visiting N.H?

I think not.

Has the New Hampshire retailer done anything illegal?

No.

Has the Massachusetts purchaser done anything illegal?

No.

However, the mere expedient of crossing a state line should not result in a price that is any lower or higher than what wholesale prices and the market dictates.

Indeed, an examination of tax rates on distilled spirits reveals Washington to have the highest rate at $33.54 a gallon in stark contrast to N.H’s tax-free policy.  MA ranks 34th. in per-gallon rates as of 2016.

  ibid tax foundation

Another area of differences between states lies in closing hours for venues which serve alcohol.

However, even within states local laws differ.  New York City allows bars to open at 7 A.M. and serve until 4 A.M.

  http://www1.nyc.gov/nyc-resources/faq/482/how-late-can-a-bar

However, my hometown of Port Washington, Long Island, N.Y. permits 8 A.M. for opening and 2 A.M. for weekdays while restricting 4 A.M. to weekends and the nights before legal holidays.  (No citation available).

As per MA and N.H. with their taxation policies what we have here is an arbitrary set of laws established for no defined purpose whose effect is dismissive of consistency and hurts commerce.

While Port Washington is hardly the urban behemoth of New York City this is not morally sufficient to deny folks access to a legal product while burdening New York City with potential public safety issues.

New Orleans offers 24 hour alcohol service which is among the attractions of Mardi Gras.  Certainly, the New Orleans adult beverage business benefits from 24 hour service but folks not wanting to be subjected to non-stop revelry will be disinclined to reside in a city that might otherwise be a good location.

Yet, Baton Rouge, Louisiana restricts service to 2 A.M.

Once again there does not seem to be any substantive reason for such an extreme variance in service time.

It is worth mentioning that Louisiana ranks 43rd. in taxes at $2.50 per gallon of distilled spirits.

  ibid resources

In this way 24 hour service enables increased consumption thus enabling a relatively low tax rate.

It might be objected that varying laws are acceptable and even morally worthy as the Constitution specifies that unenumerated rights return to the states.

  https://constitutioncenter.org/interactive-constitution/amendment

However, states’ rights were the basis for slavery and segregation, surely an ignoble tradition.

Moreover, drinking is not a ‘right’ in the Constitutional sense so nationalization would not be needlessly restrictive.

Yes, states have the right and the need to levy taxes but this should not be at the expense of legitimate commerce or circumventing Federal authority.

Indeed, the debate over ‘unenumerated rights’ of the IX Amendment have been going on since the ratification of the Constitution in 1787.

ibid constitution center

Additionally, both honest confusion and deliberate malfeasance are encouraged by this crazy quilt of regulation and anarchy simultaneously.  Localities desiring to make themselves appealing need to develop attractions other than unbridled drinking.

Conversely, there is scant moral justification in barring access to a legal product legitimately obtained.

Yet, all states abide by a 21 year-old requirement for legal drinking thus contradicting the argument of nationalization being too difficult to create and maintain.

  My argument is for the nationalization of all drinking legislation regarding liability, taxation and hours of service.

This national reform would yield benefits both tangible and moral.

A national liquor tax would remove onerous mandates that both stifle and increase business thus permitting market forces to prevail.

I argue that a national liquor tax have its proceeds divided by the proportion of sales tallied by each state and distributed per those percentages.  The digital technology of our 21st. century makes this a practical technique which would be implemented via the indirect subsidy provided by the lower taxed states having to meet one national standard.

Hours of service would be set nationally as well.  While drinking isn’t a ‘right’ in the Constitutional sense, I argue that it is immoral for authorities at the state or local level to set guidelines that grant or deprive drinkers access to beverage alcohol by the dubious virtue of location.

Public safety is best served by setting a consistent moral tone in the writing of laws that are clear and easily understood by all concerned parties.

I will speculate that the elimination of 24 hour drinking in New Orleans may well reduce that city’s homicide rate even as Mardi Gras tourist traffic would likely diminish.

  http://nola.com/crime/index.ssf/2017/01/shootings

I propose national hours of 8 A.M. to 3 A.M. with no exceptions for legal holidays.  Establishments would be free to close earlier but state or local legislation would not be able to impose a change in hours.

Consistent standards would enable tax collection, serve legitimate guests and lessen the excesses of the adult beverage industry.

Justice is best served straight up.

WORKS CITED

  AP.  “Bill to Set Drinking Age at 21 In Massachusetts Is Signed.”  nytimes.com New York Times 5 Dec. 1984. Web. 27 March.  2017

  http:www.nytimes.com/1984/12/05/us/bill-to-set-          drinking-age

  Tax Foundation.  “How High Are Taxes on Distilled Spirits in Your State?”  2016

  https://taxfoundation.org/how-high-are-taxes-distilled-spirits

  Constitution Center.  “Amendment XXVI Right to Vote at Age 18.  Constitution Center.  Web. 28 March 2017

  https://consitutioncenter.org/interactive-constitution/amendment

  Constitution Center.  “Non-Enumerated Rights Retained by People” Constitution Center.  Web. 28 March. 2017

  https://constitutioncenter.org/interactive-constitution/amendment

  Lane, Emily.  “With spike in violence, new Orleans had more shootings per capita than Chicago in 2016.”  NOLA.com.  The Times-Picayune, 27, Jan. 2017, Web. 28 March. 2017

  http://nola.com/crime/index.ssf/2017/01/shootings

 

 

 

 


 

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  1. January 28, 2018 at 10:38 pm

    Reblogged this on Steve Gallanter's Blog and commented:

    Cheers!

    Like

  2. FeRDNYC
    March 3, 2018 at 2:52 am

    So, here’s my honest question, after having read this. (Which, honestly, was a real chore at times — please don’t center entire paragraphs of text, that’s just cruel to the reader. And go easy on the colored text — the “ransom note” style was praised for its anonymity, not for its pleasant appearance and comfortable readability. Also, lines between every paragraph?)

    Anyway, my question: How would you propose to actually DO any of this? WITHIN the framework of our existing system of government, I mean, and without having to rewrite the Constitution. (And keep in mind: To pass national Prohibition, they had to literally rewrite the Constitution with an Amendment.) You can’t declare something “too logical” to be made into law, when the reality is that it will never be made into law because it’s completely unworkable and would be declared Unconstitutional the moment anyone tried. Congress isn’t really big on passing laws that they know beyond a shadow of a doubt will be struck down. It feels like a waste of their time, and their time is precious because they already do so little work.

    You’re clearly aware of the states’ rights doctrine, but misunderstand its application. For starters, it has nothing to do with the unenumerated rights clause of the Ninth Amendment. That’s a statement protecting personal, individual rights of American citizens. States’ rights are governed by the TENTH Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    It’s a pretty fundamental mechanism in how our government(s) function, at the various levels, and it is iron-clad. If the CONSTITUTION does not grant the Federal government the power to do something, it can’t. And if it doesn’t prohibit the States from doing something, they can. No Federal law has the power to override that, it can only be done through a Constitutional Amendment. (Hence, Prohibition.) And while the states’ rights doctrine has been abused in the past (including, yes, to justify both slavery and segregation), it’s also the mechanism by which New York City can make the red-light right turn illegal, due to the City’s heavy traffic. It lets the flat Midwestern states set higher highway speed limits than they have in twisty, hilly Northeastern states. Literally *EVERY* difference in laws between the various states, however large or small, is an application of the states’ rights doctrine.

    Where there’s overlap, the Federal government’s law is primary, and no State can pass a more permissive law, but there’s nothing to prevent them from passing more *restrictive* laws. So, for instance, the Federal drinking age of 21 is *only* adhered to nationwide because it’s the highest age anyone WANTS to set. Any State could pass a law setting the drinking age *higher* than 21, and absolutely nobody could prevent them. They just can’t set it *lower* than 21, because drinking under that age would still be illegal (Federally) even if the State said otherwise. When you Federalise a restrictive law, States will always have the power to make it *more* restrictive, but not more permissive.

    By the same token, while you could absolutely pass a national liquor tax, you CANNOT prohibit the States from also levying their own state and local taxes on liquor, in *addition* to that Federal tax. You simply cannot. Not without Amending the Constitution. BTW, disparate taxation levels from state to state is something that’s present in all forms of commerce, it’s hardly isolated to liquor prices. And the practice of going across State lines to take advantage of lower taxes is similarly common. New York Drivers who live near the New Jersey border regularly cross it to fill their gas tanks, as a combination of lower local gas taxes and no local sales tax make New Jersey’s gas prices much lower than New York’s.

    I’m personally not as bothered by the differences in liquor laws from state to state or municipality to municipality. I feel like it’s not really a problem the Federal government needs to be solving at all. But it can’t be solved the way you’re proposing, simply because the Constitution says so, and everything done at the Federal level has to remain within the bounds of what’s laid out in the Constitution. The other Federal reforms you mentioned were very carefully undertaken to ensure that they stayed within those parameters. Your proposal completely ignores them.

    Liked by 1 person

    • March 10, 2018 at 7:25 am

      Hello FeRDNYC, Thank you for reading and your thoughtful reply.

      1) “…center entire paragraphs…” Some folks like it, some not so much.
      2) “Lines between paragraphs..,” was in response to several requests from readers of my GREAT GATSBY blog which cam in at over 4500 words.
      3) Yes, my reference to the 9th. Amendment should be to the 10th. Amendment. My bad. Kudos for your observation. I will change this.

      Yes, I am in favor of a Constitutional amendment regarding the taxation of alcohol. I agree that as a practical matter this would be very difficult but not impossible. Right now we are in a time when the marijuana industry, enabled by Atty. General Holder feels free to flout Federal law and alcohol is falling out of favor.

      I am well aware of the way state and municipal taxation creates disparity and I am not fond of it.

      Yes, I am aware of the doctrine that state/municipal law can be “within” Federal dictums. i consulted with an attorney prior to writing this and he assured me that it would be difficult but “too logical” to implement, hence the title.

      I have been tending bar for the better part of 35 years.

      Once again thank you for your thoughtful response.

      Cheers,
      Steven Gallanter

      P.S. This was my contribution to Black History Month.

      Like

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