The Thirsty Beagle: RLAO may consider legal challenge to SJR 68

Monday, March 28, 2016

RLAO may consider legal challenge to SJR 68

It's been almost a month since the last petition for an alcohol law reform state question was filed, and longer since the state Senate approved Senate Joint Resolution 68 and sent it along to the House.

But that doesn't mean that all has been quiet on the alcohol law front. Quite the contrary.

On Thursday, the Retail Liquor Association of Oklahoma filed a legal challenge against the initiative petition (State Question 786, if it were to make it on the election ballot) submitted by the Walmart-backed Oklahomans for Consumer Freedom.

That moved smelled of retaliation, as two weeks earlier, the Oklahoma Grocers Association filed a challenge against the petition (State Question 785) filed by the RLAO.

In the latter case, the Grocers Association claims the RLAO petition is "misleading" and "deceptive." I've expressed my misgivings about the RLAO petition as well. While the petition seeks wins for craft beer, for me, it is simply too restrictive for grocery and convenience stores.

The grocers claim the petition actually usurps the authority of the ABLE Commission by allowing liquor stores to sell their wine licenses to grocery stores.

RLAO President Bryan Kerr dismissed that concern, telling The Oklahoman that, "Nobody is usurping anybody's power. We are just asking for a little capitalism to be involved."

If there was any doubt about just how high the rhetoric meter can go, that statement proves there may be no limits.

The old trick of trying to woo voters and stoke public sentiment by evoking capitalism is fine, but such a tactic rings hollow coming from the RLAO, whose petition would limit the number of stores that would be allowed to sell wine in order to give existing liquor stores protection from new market forces.

I don't say that in an effort to anger liquor store owners. I count the liquor stores owners that I know as some of the nicest, best people involved in the craft beer industry. I'm just puzzled by some of the statements from the RLAO specifically, and I feel like when any side in this deal -- be it RLAO, Budweiser or whoever -- makes statements that don't hold up, they should be called on it.

Needless to say, it was not a surprise when the RLAO filed a challenge against the petition from Oklahomans for Consumer Freedom. In its challenge, the RLAO claims the OCF petition violates the 14th Amendment of the U.S. Constitution by denying liquor store owners equal protection under the law.

"Our opinion is basically that it creates an uneven playing field and puts retail package stores at a seriously unfair advantage," Kerr told The Oklahoman.

The RLAO argument is that liquor stores owners are only allowed to hold one license/operate one store, while the OCF petition would allow grocery and convenience store owners to sell beer and wine in as many stores as they want.

It's worth noting that liquor stores would still have one decided advantage over grocery and convenience stores, that being the ability to sell liquor. But that's an aside, and the RLAO would tell you that Walmart eventually will have its eyes set on liquor, too. That's an argument for another time.

The arguments to be concerned with right now will be heard in court, where each group will have to defend the challenges to their petitions. If you're unfamiliar with the initiative petition process, these challenges are not unexpected. 

Filing a challenge is actually a very common tactic when you want to stop an initiative petition. If you can't have it stricken by a judge, the next best thing is tying the matter up in court so that the petitioner runs out of time to collect the 120,000-plus signatures needed to get an item on the ballot. 

So would I be surprised if neither the RLAO or OCF ended up getting their petition on the ballot? No. Many more initiative petition efforts are unsuccessful than the other way around. Of course, that doesn't mean Oklahoma can't pass alcohol law reform. Don't forget about SJR 68.

Of course, also don't forget that SJR 68 is almost identical to the OCF petition, which the RLAO challenged and called unconstitutional. It raises an obvious question: Will the RLAO also challenge SJR 68?

I sent Kerr a message asking that question. His response:

"Our lawyers say it has the same issues that Walmart's petition does. We hope to see those problems addressed through amendment in the House. If they aren't, we'd certainly consider asking the Oklahoma Supreme Court to determine SJR 68's constitutional validity."

Sit tight everyone. It doesn't appear any of this is going to get done the easy way.

Pints and Pins

-Your Monday pint nights at the McNellie's pubs: Magic Hat #9 in Oklahoma City; Harp Lager in Norman; Goose Island Matilda in Tulsa; and Bavik Pils at Tulsa-South.

-The Patriarch will tap a keg of Avery Tweak this Thursday at 6 p.m. This strong beer (17.8% ABV) is an imperial stout with coffee added and aged in bourbon barrels. Also a reminder that The Patriarch's Founders Tap Takeover is this Wednesday night.

2 comments:

  1. What I find curious here is that the grocer's petition seeks to get rid of the ABLE commission altogether, and yet their argument against the retailer's petition is for supposedly invoking authority in place of the ABLE commission. It's all a tangled web, for sure.

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  2. Nick, thanks again for keeping your readers informed about the potential changes in alcohol laws. You are leaving out one big piece of the picture however when speaking about our petition...although we do have a limit on the number of stores that can sell wine; that number is still four times higher than the number of licenses a locally-owned retail package store can get to sell that same product, or strong beer for that matter.

    Additionally, Oklahoma currently has one retail package store for every 5,600 residents (not drinkers, residents). Texas has one for every 10,800. What SJR68 ("The Texas model") advocates is replacing half of these local outlets with chain and corporate stores that will sell only the most popular products; products that will crowd out craft beer and local producers. In effect, the consumer would have fewer places to shop for spirits, most wines and craft beers under SJR68; much fewer than implementing a 2500ft distance restriction between outlets.

    In our proposal we still give up much. Every retail package store will lose money. Some retail package stores will still not survive. Eventually Walmart and their allies will be back at the legislature with their army of lobbyists and lawyers to ask to remove that 2500ft restriction as well as anything else that creates a more equitable playing field and/or helps to minimize the negative social consequences of strong alcohol at too many places.

    We intend on moving forward with our petition and are confident that it will withstand the challenge from the Grocer's Association. We want to give Oklahomans the best possible plan for alcohol reform that takes into account the desire for convenience and diversity of products, the concerns for safety as well as the recognition that local businesses bring value in both of these areas.

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