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August 7, 2013

Indy liquor store chain wants to intervene in beer lawsuit

Dispute over cold suds in gas stations, other businesses heats up issue

INDIANAPOLIS — An Indianapolis-based liquor store chain wants to intervene in a federal lawsuit filed by gas stations and other businesses seeking to overturn a state law banning them from selling cold beer.

Attorneys for 21st Amendment have filed a motion seeking to intervene in the suit filed in May by the Indiana Petroleum Marketers and Convenience Store Association and several store owners.

The 19-store chain’s motion says that if a federal judge in Indianapolis overturns Indiana’s ban, pharmacies, gas stations and grocers should face the same host of restrictions liquor stores do, including allowing only customers age 21 and older and being closed on Sundays.

Michael Wukmer, an attorney for 21st Amendment, told The Indianapolis Star the courts need to consider the entirety of Indiana’s liquor laws, not just one provision.

He said the plaintiffs might find the rules liquor stores operate under cumbersome.

“The retailers association wants all of the benefits of selling alcohol without any of the restrictions,” Wukmer said.

Lou Anne Brennan, the chief financial officer at 21st Amendment, said the costs for those restrictions add up quickly, starting with permits that average $250,000 at auction in central Indiana.

“If they want to have the privilege of selling cold beer, they should also operate under the same restrictions,” Brennan said.

Both the state and the retailers group are trying to keep 21st Amendment out of the dispute. They filed motions Monday seeking to prevent the liquor store chain from intervening in the suit.

In the state’s response, Deputy Attorney General Kenneth L. Joel said his office is best equipped to handle the defense.

“21st Amendment, Inc., has no authority to assert control over the defense of a lawsuit against the State of Indiana, has no legally recognizable interest in presenting a separate defense of the constitutionality of state statues, regulations, and policies, and has no basis to ask this court to rewrite Indiana law as it relates to the regulation of alcohol,” he wrote.

The plaintiffs’ lawyer, John R. Maley, said 21st Amendment should file its own suit if it wants to change Indiana’s liquor laws. But he agrees with Joel that the courts aren’t the arena for that discussion.

The suit Maley filed in May is more narrow and contends that the law regulating the sale of alcohol by temperature is unconstitutional. He notes that the amount of alcohol in beer doesn’t change if it’s warm or cold.

“We’re challenging a particular provision as unconstitutional,” he said. “They are effectively asking a federal court to write new state legislation. That’s not a possibility.”

Indiana’s restrictions of cold beer sales are among a mix of laws the state has adopted in the 80 years since Prohibition ended based on religious, social and economic concerns.

Indiana residents also face the nation’s broadest restrictions on the sale of carry-out alcohol on Sundays.

Grocery stores, gas stations and convenience stores argue the state’s liquor laws in essence pick winners and losers. Grant Monahan, president of the Indiana Retail Council, said the state is catering to liquor stores and that “public policy based on temperature doesn’t make any sense.”

John Livengood, president of the Indiana Association of Beverage Retailers, which represents package liquor stores, said the restrictions those stores face coupled with the loss of their control of the cold-beer market would doom their industry.

Livengood said that most shoppers would simply stop making the extra trip to buy cold beer.

“It would destroy the package liquor store industry in the state,” he said. “There would be very few survivors.”

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