FLORIDA DOES SOMETHING RIGHT|
The Wine Curmudgeon can't remember the last time he had such a big
smile on his face. A Florida circuit court judge ruled against the state's alcocops prosecution of a
Chicago retailer and a California-based wine-of-the-month type club.
The judge cited the U.S. Constitution (just as TWC has been doing on the same
issue for 25 years) in ruling against the state, specifically mentioning the Commerce and Due
The Commerce Clause has to do with interstate commerce,
something which these shipping ban laws certainly impede.
The Due Process clause says that citizens of one state cannot
be hauled into the courts of another state unless they have had what the
udge called "minimum contact" with the state asserting jurisdiction. According
to the judge, the State of Florida failed to prove such contact between it and
the out-of-state defendants.
Other reasons discussed in the decision include the fact that the out-of-state
merchants had no offices, agents, buildings or other properties in Florida, so Florida's
complaint that sales and excise taxes were being avoided were also ruled void.
The judge further opined that when the Florida buyer purchased the
goods via the phone or mail in the other state that the goods became his, the
shipping of same became a service to the new owner and therefore the seller
could not be charged with illegal shipping, since the buyer was in effect shipping
The case will be appealed, of course, but even there some interesting
facts come into play. The attorney general of Florida, Robert Butterworth, the
person who would ordinarily mount the appeal, seems to support the idea that
shipping bans are unconstitutional, at least he spoke out against the state's
passing of a felony shipping law and encouraged the governor's veto of same,
while sponsoring legislation to permit interstate shipping. For this reason the
wholesalers (who are the major movers behind the bans) petitioned the court to
be recognized as principals in the case, and permission was granted.
Because the charges in this case were filed prior to passage of the
felony legislation, the ruling does not apply specifically to that law, but the
wording would appear to apply to any and all bans on interstate shipping.
Any way TWC looks at it, this is a major shot in the arm for the Free
Trade advocates, small wineries and consumers everywhere. Even though
it's a state court ruling that doesn't apply anywhere outside of Florida, it is
still a decision that will be considered by other courts, looked at by regulators
and legislators, and might even motivate some more legislation along the
lines of the recent "Louisiana Compromise."
SPEAKING OF LOUISIANA
Last issue's good news item was the so-called "Louisiana Compromise," the forward
thinking legislation which instead of banning interstate shipping, licensed it and provided the
out-of-state wineries and retailers a means of paying Louisiana state taxes. (Most states claim
their bans against shipping have primarily to do with the inability to collect sales and excise
taxes from the out-of-staters, yet they make no provisions in law for them to pay those taxes.)
After closer examination, it might not be the perfect legislation after all, though no one
can deny that it was passed with good intentions and by honorable people looking for a solution
to a complicated problem.
The complaints? There have been several.
The most serious of which is simple fairness...while the law provides for the merchants
of 49 other states to ship wine into Louisiana direct to consumers, there is no provision in this law,
or any other existing law, to permit Louisiana merchants to ship to their own citizens. That has to be
fixed, both for the half dozen wineries in the state and the numerous retailers.
Another complaint lodged by many small vintners is that if they had to pay a $100 license
fee to every state, that would amount to $5000 and would cost more than their profits in interstate
shipping amount to, or would so severely cut into their profits that it wouldn't be worthwhile. These
small vintners say the LC is a non-solution, because it still locks them out of the marketplace.
Playing "Devil's Advocate," I don't see this problem as a reason to trash the law. Small vintners
could ban together and form co-ops which could do the out-of-state shipping, thereby dividing the
licensing fees to the point of being reasonable, or even if a winery couldn't justify the license for
some state where they did little business, the customer could always be referred to some retailer
who could sell the wine in that state.
The final issue raised is another very serious one and that is the question of why the wine
business should be treated any different than any other legal product. You can buy any other
kind of food or consumer product, even prescription drugs and narcotics, via the mails from
another state, without that merchant being forced to buy a license in a state in which he is not
doing business, and then pay sales taxes to boot. Simply put, is this a free nation where we are
guaranteed by our constitution the right to free trade across state lines, or not? If so, then neither
consumers nor businesses should be forced to deal with this kind of red tape and added regulation.
It isn't that TWC didn't think of this issue the moment he heard about LC, because he did.
TWC didn't raise the issue immediately, because if the licensed beverage industries (producers of
wine, beer and spirits, and the merchants who market those products) were willing to pay these
extra costs to do business, TWC figured it was o.k., and certainly preferable from a consumer
viewpoint to the outright bans. TWC decided not to be an idealist and stand on principle, when
so many folks were jumping up and down and cheering, and rightfully so.
So here's TWC's overall position on interstate wine shipping: The courts should, and we believe
eventually will, rule in favor of free trade and the Constitution of the United States of America, and
that all these arguments and discussion will then become moot and TWC will have to find something
else to bitch about.
TWC also believes that until the courts do so rule, anything that will allow consumers to
get the goods they want and merchants to do what they're supposed to do which is sell goods, is
a good thing...whether that is via reciprocity laws (states saying its citizens can receive shipments
from other states that will accept shipments), Louisiana type compromises, or the many inventive
and ingenious ways that consumers are finding to skirt the "unconstitutional" bans. The alcocops
call it "bootlegging," this carrying a bottle of wine home to the heartland from California wine country
or other of the 44 wine producing states. TWC thinks of it as more in keeping with the spirit of
Americans refusing to yield to unfair laws...think Boston Tea Party, segregation, and attempts at
censorship...Americans tend to break laws they don't respect until they get changed. TWC thinks
that's just "a-o.k."
GOOSE GETS FEATHERS PLUCKED BY TWC
For some reason TWC hasn't been able to figure out, one of the hottest categories in the
spirits world is upscale Vodkas produced in a variety of locales and bottled in unique and flashy
packages. Finland, Holland, Poland, wherever, and now from France. Vodka from France?!
The product is called Grey Goose and it does come in a pretty bottle. We can't comment
on its quality because we haven't tasted it, but that isn't the point of this item.
We're actually afraid this item might be successful because the creator is an old coot with
a track record, who has utilized dinosaur-era (read 50s and 60s) type marketing to great success.
Sidney Frank is the near octogenarian who made a success out of one of the worst tasting
spirits products ever formulated, a foul-tasting liquid called Jagermeister. It's success was built on
marketing that promoted and encouraged, in our opinion, overindulgence and abuse. This stuff is
actually sold on tap at bars catering to rowdy young males!!!
Frank is doing it again (using marketing and advertising of questionable taste). I hope he
restricts the ads to appearing in the trade publications where TWC has seen them, because if they
get out in public both the feminists and the anti-alcohol fanatics will have a field day with them.
The ad depicts a beautiful blonde woman, with her head thrown back in the obvious throes
of passion, wearing a sleeveless black dress with a cleavage revealing neckline. She has her hand
on a half full martini glass.
The man in the picture has either just kissed her on the chest, or is about to do so, and his
hair is slightly mussed. He appears to be wearing a coat and vest, but his shirt neck is open and he's
not wearing a tie.
Now the slogan: IF THE FRENCH CAN DO THIS WITH A KISS... (Imagine What They
Can Do With A Vodka!)
In other words, if you ain't much of a lover...get her loaded on Grey Goose and she'll be hot
The friends of wine, beer and spirits have enough problems without the enemies giving
them this kind of ammunition.
A Big Bronx Honk To Sidney Frank and His Goose.
ANOTHER GOVERNMENT SCAM
Small businesses beware. Most of you are alert for office supply companies that call and
act like you've been doing business with them right along, take orders for replenishing paper or printer
products, or whatever, and then a bill arrives for twice the usual price and from some company with
which you have never done business. Or the long distance phone service that tricks you into
switching companies by making you think you're talking to the company with which you usually do
Now, in addition to the usual business scam artists, you've got to beware of at least one
more level of government trying to get into your pocket.
A small winery of our acquaintance, recently received from the City of Seattle, a solicitation
to buy a Seattle city business license. Now this winery is one of the few thousand case size, is
located on California's Central Coast, has never done business is Seattle or even Washington
State (except through a wholesaler), and has definitely never had offices or warehousing there,
nor any employees based or living there.
But the City of Seattle, nevertheless, sent out a solicitation to buy a business license...and
not only that...they sent it to the home address of one of the owners...an address that has never been
published in conjunction with the business!????
The truth is, if the document is read carefully, it's pretty obvious it does not apply to our
friend/winery, but we can't help but wonder how many unnecessary Seattle business licenses are
purchased under this scam, by businesses too busy to read thoroughly, or which delegate this kind
of thing to employees who might just assume that a notice from a government agency to buy a
license meant that one should be bought. I mean, wineries constantly fill out separate forms and
paperwork for 50 different states, so why not one more?
But when you get right down to it...the City of Seattle is being just as deceptive and
crooked as those office supply and phone scams cited above. A scam is a scam, even if it is
perpetrated by one level of government or another.
UTAH BEING BADDER AND BADDER
Utah is a state of contradictions. It was Utah, after all, which made possible the Repeal of
Prohibition, by voting for ratification...even though it intended to remain dry.
These days Utah has legalized beverages containing alcohol, but insists they be sold in
state-owned monopoly stores, and has a five member Alcoholic Beverage Control Commission, of
which four members are also members of the Mormon Church and avowed non-drinkers. The fifth,
a woman, does take an occasional drink, we're told. This is the rough equivalent of having an
all-Amish board overseeing the Airport Commission, Auto Regulation and Cable TV.
Just as we were going to press, word came that a professional man in Salt Lake City had
received a phone call from the Criminal Investigation Bureau (CIB), advising that a package of wine
shipped to him from an out-of-state wine club had been confiscated, that his name was now on a list,
and that should he receive any more illegal alcohol shipments he would be prosecuted.
We were curious about several things. How did CIB come to know that a violation was
taking place?... that there was wine in a specific box? And what would the penalties be if our source
were prosecuted? And if I didn't like this person could I get him jailed by shipping unsolicited wine to
Just as I suspected, CIB had an informant...some might use the term "snitch." As explained
by Lt. Mitch Ingersol, "It is against the law to ship alcoholic products directly to consumers in Utah,
and when the shipping agents become aware of an alcohol shipment it is their duty to inform us. We
then go to the shipping agent's premises and take possession of the contraband."
But if there's nothing on the outside of the carton to indicate it is a wine shipment, how
does the shipper determine that it is indeed an alcoholic beverage inside and not olive oil, or grape
juice or soda pop? Lt. Mitch declined to speak for the shippers or how they know what they know.
One can only assume that the packages we think are secure and private really aren't, and
that the shippers are opening our packages without the knowledge of either sender or receiver and
examining the contents.
The shipper in this particular instance was "Airborne," the least cooperative of the shippers
I deal with in my own business, by the way. And TWC has personal know-ledge of the shipment,
which was handled by a freight-handling specialist and middleman, so there was no wine club or retail
name that would have indicated wine was inside.
When I asked Lt. Mitch about possible penalties for our Utah citizen, should he receive
another shipment and be prosecuted, he replied, "The last time I looked it was a Class B
Misdemeanor, punishable by up to six months in jail and a $1000 fine... but the penalty may have
increased since then."
Isn't that wonderful, folks? Six months in jail for receiving a bottle of fermented grape juice.
Lt. Mitch hastened to add that things would go much harder on the wine club that was
shipping the wine. While initially only guilty of a misdemeanor, if three violations can be documented,
CIB will charge them with "Racketeering, a felony," and seek to extradite if necessary.
What would be really interesting is to see if a California governor would extradite one of its
merchants for selling a bottle of its leading agricultural product.
Is this an empty threat on CIB's part? A scare tactic to keep merchants from shipping to
Utah citizens? Hardly. Just recently they filed such felony racketeering charges against the proprietor
of Beer Across America, a similar kind of mail order dealer. No one is sure when that case will come to
trial. With any luck, the judge will throw it out as a violation of the Club's constitutional rights.
Utah! Is this the state which will host an international audience at the 2002 Winter
Olympics? A lot of people are going to be very confused and disappointed at the level of hospitality
in this state that is running about 60-70 years behind the times.
Whether you're a consumer (and most of our readers are) or involved in the wine trade in
one way or another, and you believe in the concept of free trade and free enterprise and the
constitutional guarantees of unimpeded interstate commerce, and want to do more than bitch, bitch,
bitch like TWC...then get out your checkbook and a cut a check to the non-profit organization
known as the Coalition for Free Trade in Licensed Beverages (CFT).
It is CFT which engaged the top legal team which won the day in Florida in that recent
court case against out-of-state shippers. But money is needed to handle the appeals and make sure
the bad guys don't overturn this important decision and even more cases are going to have to be
mounted...probably going all the way to the supreme court. So if you're a merchant who would
make use of the right to ship wines for your customers to their corporate and personal gift lists all over
the U.S., who would like to be able to ship that bottle of Chateau Yquem to someone's mom on
Mother's Day, or a bottle of Phelps Insignia to dad on Father's Day (and remember gift givers usually
buy the good stuff), you should support CFT with financial backing...and what the hey...it's a write-off.
Or if you're a consumer who lives in a state where wineries and retailers, even wine and
beer clubs, will no longer ship because of repressive state laws, then you definitely ought to be
sending CFT some bucks. Hey! Even $10 or $20 will help, especially if there's a bunch of you.
And even if you live in a more liberal state, even a reciprocal state, your freedoms are still
being encroached upon, by way of restrictions on who you can ship gifts to, not to mention that some
states are turning from hospitable to inhospitable overnight. So you should pop with a few bucks for
You can contact CFT c/o the Law Offices of Hinman & Carmichael in San Francisco:
CFT, 244 California St. #300, San Francisco, CA 94111 (415) 362-1215;
Tell 'em The Wine Curmudgeon sent you and your bucks...
KENNEDY STILL A BAD GUY...GETTING WORSE
Last time, TWC warned you about California's Senator Barbara Boxer and her exposing
herself as an enemy of wine by endorsing the "Zero Tolerance" concept. Did I mention she's a
TWC gets tired of warning folks about Congressman Joseph Kennedy II (yeah, the one
who finagled an annulment out of the Catholic church after more than a decade of marriage and
whose granddaddy was one of the princes of bootlegging during Prohibition), but the folks in
Massachusetts keep reelecting him and the whole damned nation suffers.
Kennedy has been sponsoring legislation to ban licensed beverage advertising for many
years now, and in the current session alone he is sponsoring a minimum of seven anti-alcohol laws.
Consider this, not only are bans on wine, beer and spirits advertising a violation of the
constitutional rights of legal commercial products to free speech, but such bans would also stifle a
free press, voices like TWC, and all the publications that promote, review and inform about wine,
including Wine Enthusiast, Wine Spectator, Wine & Spirits and half a dozen others that could not
survive without advertising support. Advertising and free speech walk hand in hand in our society;
to strangle one is to destroy both.
IN THE NAME OF PRINCESS DI
TWC is absolutely disgusted at the way politicians and anti-alcohol fanatics have picked
over the bones of the beautiful princess killed in a tragic accident.
They are using the fact that the driver of the death vehicle was apparently under the
influence to promote any and every anti-alcohol agenda they might be in favor of. Most frequently,
they are using this tragedy to justify the currently fashionable campaign to lower the permissible blood
alcohol (b.a.c.) in drivers from the commonly used .10, to a lower figure of .08. There is currently
federal legislation being considered that would threaten the states with economic blackmail (the loss
of highway funds) if they do not adopt the lower standard, and Princess Di's name is being used to
justify this unnecessary law.
All the Princess Di incident demonstrated is what TWC and the statistics have been saying
all along, that most fatal accidents caused by drunken drivers are caused by alcoholic recidivists with
b.a.c.s of .16 and above.
National statistics from the federal government show that a only a very small percentage of
accidents are caused by folks with between .08 and .10 percent b.a.c.s, not even enough to
demonstrate any causal effect. Why, there are actually a higher percentage of accidents by drivers
with .01 to .03 b.a.c., which is virtually no alcohol at all.
So why are the MADD mothers and other anti-alcohol fanatics so intent on lowering
permissible b.a.c.s instead of tightening and stiffening laws and penalties for the real drunk drivers?
Because MADD and its minions are no longer about stopping drunks...they've switched to stopping
But don't take our word for it...listen closely to the propaganda, especially during the
upcoming holiday season. You'll hear phrases like "Zero tolerance," "Impairment begins with the first
sip," and "Don't drink and drive...ever." Please note that none of these terms are about drunkenness
or impairment, they are about drinking...anything.
And now these groups are even speaking out against "Designated Driver" programs,
because they just encourage people to drink.
Carry Nation is back...she's simply wearing 90s clothing and has made the "drunk driving"
issue the workhorse that the "saloon" issue was in the teens and 20's.
TWC thinks the fair-minded Princess must be turning over in her grave at the way her death
is being mis-used.
CHECK THE MEDIA
TWC gets so angry, and he wants to pass some of that anger onto you. It may seem kind
of strange for the media to be picking on the media, but that's what I'm about to do.
WARNING: DO NOT BELIEVE EVERYTHING YOU READ.
As obvious as that may sound, we all need to be reminded, a lesson TWC recently retaught
The local daily (the very one that runs TWC's alter-ego Mead On Wine every week) recently
printed a letter to the editor so full of false information, misleading statistics and inflammatory dialogue,
that he felt compelled to go beyond his usual fiery letter to the editor. He called and talked to the
Associate Letters Editor.
In the letter that inspired TWC to anger, some woman had railed on about the evils of drinking
drivers, the millions of people killed by drunk drivers every year, and how more than 17,000 had
been killed that week alone.
When I pointed out that according to the National Highway Traffic Safety Administration the total
fatalities from ALL causes for the latest year available were only 41,907, thereby making all of this
lady's claims worse than exaggerated, I asked if the paper did not have some standard for permitting
statistical claims? Were figures not checked? Or were the writers at least queried as to where they
got their numbers? I mean they do usually call to make sure you actually wrote a letter and that it isn't
a prank, so asking the basis of supposedly factual statements would seem a simple task. And if they
fact check the copy of reporters, why not of letter writers? Or maybe we can't trust anything we read
in the paper?
The editor's response? "Unfortunately, that's a weakness in the system."
I did write a letter setting the record straight. It is two weeks later. It has not yet appeared.
The Wine Curmudgeon
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Latest Update: December 10, 1997