This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The stakes are high enough, the outrage fresh enough and, given the unpredictability of our current U.S. Supreme Court, the law fuzzy enough that the flyer the Utah Hospitality Association is taking by suing the state of Utah over one of its most recent, and most ridiculous, liquor laws is well worth the effort.
Understandably peeved over SB314, a new law that treats adult customers as children and honest merchants as drug pushers, the professional association that represents clubs, restaurants and such has given up trying to talk reason to the Legislature, governor and the Alcoholic Beverage Control Commission and has taken the lot of them to federal court.
Common sense and modern times are on the side of the barkeeps and restaurateurs. But, in Utah, that and five bucks will get you a beer. If you can find one. The law limiting the number of bar and dining club licenses by not only the size of Utah's population, but also by the number of law enforcement officers it hires, has left the supply of licenses trailing far behind demand. That damages the state's economy for no reason other than a groundless claim to be saving innocent Utahns from the clutches of Demon Rum.
The lawsuit argues that those provisions, as well as the one banning daily drink specials, violate the federal Sherman Anti-Trust Act, which is in turn based on the exclusive power granted to Congress by the Commerce Clause of the Constitution to regulate interstate trade.
The hurdle is the widespread theory that liquor is different. The 21st Amendment to the Constitution, the one that repealed Prohibition, replaced the federal ban on alcohol with a provision that it would remain illegal to import liquor into any state in violation of the laws of that state. That has long been read to mean that states can make any law they like about alcohol, and the courts will back them up.
Or maybe not. Two key cases decided by the U.S. Supreme Court, both in 2005, might undermine the supposed superiority of the 21st Amendment. In one, the court struck down laws in two states that banned the mail order purchase of wines from other states. In another, it held that the sale of even small amounts of marijuana affected interstate commerce, and thus allowed the congressional ban on the substance to trump all state laws.
In both cases, the Supreme Court ruled the Commerce Clause supreme. Even the chance that it might do so in the case of Utah's antediluvian liquor laws would be worth the effort to take the matter to court.
And, if taxpayers are upset about how much it costs to defend those laws, they should know to blame the Legislature.