Professional Documents
Culture Documents
44 Liquormart v. State of RI, 1st Cir. (1994)
44 Liquormart v. State of RI, 1st Cir. (1994)
July 8, 1994
No. 93-1893
44 LIQUORMART, INC. AND
PEOPLES SUPER LIQUOR STORES, INC.,
Plaintiffs, Appellees,
v.
STATE OF RHODE ISLAND,
Defendant, Appellee,
RHODE ISLAND LIQUOR STORES ASSOCIATION,
Intervenor, Appellant.
____________________
No. 93-1927
44 LIQUORMART, INC. AND
PEOPLES SUPER LIQUOR STORES, INC.,
Plaintiffs, Appellees,
v.
STATE OF RHODE ISLAND,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Cyr, Circuit Judge,
_____________
Aldrich, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Island, that did not ratify the Eighteenth Amendment, and was
among the
it,
in
1956
adopted
promoting temperance,
intoxicating
within
two
statutes,
forbidding
liquor, except
the state.
at
assertedly
aimed
at
advertising the
price
of
the place
of sale
if sold
in
3-1-5.
3-8-7 provides,
3-8-7.
Advertising price of malt
3-8-7.
Advertising price of malt
beverages, cordials, wine or distilled
beverages, cordials, wine or distilled
liquor. -- No manufacturer, wholesaler,
liquor. -or shipper from without this state and no
holder of a license issued under the
provisions of this title and chapter
shall cause or permit the advertising in
any manner whatsoever of the price of any
malt
beverage,
cordials,
wine
or
distilled liquor offered for sale in this
state;
provided,
however, that
the
provisions of this section shall not
apply to price signs or tags attached to
or placed on merchandise for sale within
the licensed premises in accordance with
rules and regulations of the department.
Section
3-8-8.1, post,
____
forbidding making
"reference to
beverage,"1
defendant
that
Administrator,
strict
enlarges this
the price of
Rhode
Island
enforcer, construes
____________________
1.
language to
any alcoholic
Liquor
as
Control
including
attack
these
statutes
in
every
particular,
seek
unconstitutionality as contravening
Rhode
Island
Liquor
Stores Association
has
an
Defendants
the State
contended that
plaintiffs, in
order to
four part
whose
by the State,
prices were to be
participate
in
arena
and
obliged to
would
be at
a
who
-4-
that competitive
tend to
lower prices, and that "a more competitive market for alcohol
might be considered an undesirable goal."
We start
447 U.S.
ultimate
weigh "the
purpose
governmental
is
to
interests served
v.
557,
Public Service
_______________
566 (1980).
expression
by its
The
[and]
regulation."
the
Id. at
__
563.
I.
question.
In the present
II.
test raises no
of
promoting
alcoholic
beverages."
temperance
accordingly,
is
is such
whether
an
Plaintiffs
concede
interest.
The
forbidding
price
the
that
dispute,
advertising
-5-
is necessary."
and "is
not more
extensive
III.
burden
"Directly advances."
of proof.
The
burden
that
evidence,
the
on
an issue
correct, it failed.
for
the
seeking
S. Ct.
it to
decide, unfettered,
not persuaded
We do
party
court was
start with
the
it was
between competing
is
We
that the
State was
material degree");
York v.
____
See
___
Fox, 492
___
burden,
in California
__________
v. LaRue,
_____
fit").
109, 118-19
regulation in this
where the
Hudson, 447
______
evidence was
U.S. at
tenuous," Central
_______
nowhere
any kind,"
-6-
lack of studies
S. Ct. at 1800.
sufficient.
should
court do
either
way,
and
when
expert
plaintiffs' expert,
"advertising
has
there
is no
opinions
whom the
go
empirical2
both
court credited,
cumulative effects
that are
What
evidence
ways?
Even
admitted that
difficult to
is a difficult topic
to research."
Before answering
these questions we
observe
is necessary" inquiry
is
State's
expert
that
"the
objective
of
lowering
consumption of alcohol by
accomplished
increasing
an
by
establishing
minimum
prices
answer; the
State is
entitled to
and/or
by
This is not
a reasonable
choice.
____________________
2. This word is a summary of the court's findings that such
studies as were offered were too inconclusive to be relied
on.
-7-
that
some
effective.
other
e.g.,
taxation,
inherent merit
to
in the
advertising would
our
questions,
State's
are
sometimes
that
doubtless
lower prices,
many
be
less
would
seem
and that
competitive
with lower
buyers
there
contention that
would
price
method,
whose
money.
consumption
If
he not likely
is
a buyer learns
to go there,
more?
Correspondingly, if
he not
tend to buy
M.
Hanssens,
ignorant of
locally, at
would
(September 1985).
Alcohol
Control Laws
and the
__________________________________
Further,
the
lower
J. Consumer
if Association members
prices, as they presage,
be more
buys?
Even plaintiffs' witness
some
-8-
Advertising must
be generally
productive, or so
much money
would
not be
spent on
it.
Posadas,
_______
478 U.S.
Cable, Inc.
____________
v. Crisp,
_____
467
on, that
the
unreasonable.
Twenty-First
U.S.
Capital Cities
______________
691 (1984).
We do
not
district
court
In addition,
Amendment,
at 341-42;
was
free
to
hold
LaRue,
_____
supra, seems
_____
it
upon the
precisely
in
order.
Parenthetically, the State contends this discussion
to be unnecessary in view of the Court's action, 459 U.S. 807
(1982),
dismissing
an
appeal,
"for
want
of
substantial
advertising
rejected
limitation
this contention
case.
because
The
of a
district
"different
court
factual
As to the latter, it
precedental
effect,
identical reasoning
U.S. 173, 176 (1977).
statute
similar to
advertised,
although not
of the
court.
necessarily
Mandel v.
______
in a circular, 50
at bar.
the
Bradley, 432
_______
case involved a
Defendant
cent drinks --
on
restaurant
a markdown --
with meals.
-9-
The
was
entitled to
Hudson
______
tests
unreasonable"
some protection,
and
in
found
light
that
of
the
pursued the
the
four Central
_______
statute
Twenty-First
was
Amendment's
of alcoholic beverages.
It concluded as follows.
The
regulation
is
directed
toward
regulation of the intoxicants themselves,
rather than speech.
This is unlike the
case, e.g., in [Virginia State Board of
________________________
Pharmacy v. Virginia Citizens Consumer
________
___________________________
Council, Inc., 425 U.S. 748 (1976),]
______________
where the speech was the actual focus of
the regulation, since the aim of the
restriction
was
the
prevention
of
competition in pharmaceutical sales, not
the
discouragement of
pharmaceutical
purchases.
Ibid.
____
"not
690
Reliance
might raise
on
possible questions.
liquor.
the
Queensgate court?
__________
helped
wanting
by
to
its
was that
On the issue
friends.
as
the
if free
reasonable as a
purpose
however,
is whether
action was
intervene
conclusive,
We need not
primary
as
The first
been curtailed by a
Queensgate
__________
we have found
control.
eliminated
But
by
the
not
Association's
given
that
defendant,
reason
the
for
statute
protects the small vendor from the giants, could make logical
sense,
but might
not be
a lawful
use of
the Twenty-First
-10-
Amendment.
Cf.
__
(1984).
There
is a burden
to rebut
the
statutes'
declared purpose,
attempt.
We
conclude
and
plaintiffs
therefore that,
have
made
no
with Queensgate
__________
or
we observe that
Ass'n v. Evening Call Pub. Co., 497 A.2d 331 (R.I. 1985); S &
_____
_____________________
___
S Liquor Mart, Inc. v. Pastore, 497 A.2d 729 (R.I. 1985).
___________________
_______
have
not
mentioned
obligation
is
to
its
decide
decisions
for
hitherto
ourselves.
because
See
___
We
our
Watson v.
______
Estelle, 886 F.2d 1093, 1095 and n.3 (9th Cir. 1989).
_______
Peoples Super Liquor Stores, a Massachusetts vendor
that wishes
to advertise
in Rhode
-11-
3-
Rhode
Island can
regulate
quote
regulation
of
the
speech."
This is
precisely
higher
restricting
Massachusetts sales?
themselves,
the
rather
reasoning that
prices
sales.
sales because,
But
Action that
achieves the
State's
how
legislate
can
it
it could
purpose
to
assume a
legitimate paternalistic
v.
(1993),3 Rhode
prices for
any purpose.
As
113
of
limit
v.
Even
interest in
than
sustains
to
intoxicants
forbidding publication
maintains
Rhode Island
S. Ct.
cf. United
__ ______
2696,
2707
to control Massachusetts
the Court
said in
Collins v.
_______
Yosemite Park & Curry Co., 304 U.S. 518, 538 (1938), quoting
__________________________
from the court below,
[Twenty-First]
Amendment
may
have
increased
"[T]hough the
'the state's
power to deal
increase
jurisdiction.'"
acquire
its
power or
supervision over
another State
own
may
citizens
State. . . .
Thus,
be
[I]t may
affected
"[a]
, it did not
State does
the internal
affairs of
not, under
they
travel
the guise
not
of its
to that
of exercising
____________________
3.
a citizen of another
State."
Bigelow
_______
(1975) (abortion).
State from
v. Virginia,
________
This is a square
421
U.S. 809,
answer.
824-25
As to Peoples
_______
-13-