The Office of the Attorney General, on behalf of Defendants Lawson and Spicola (DBPR and ABT), filed its Motion to Dismiss the “growler lawsuit” this morning.  The incorporated memorandum of law in support of the motion generally lays out a history lesson of how the statute was originally enacted, provides some red herring arguments in support of dismissing the lawsuit and includes a semi-hilarious explanation of why the container size law is “rational.”

As discussed in a previous post, the defendants here must only prove that the challenged law is rationally related to a legitimate government interest. It is the most lenient standard for judicial review available. Plaintiff has the burden of proving that the law serves no conceivable legitimate purpose.

Defendants mostly skirt the issue of rationality. They do bring it up briefly on three separate occasions. They argue, for example, that “[g]iven that consumers are significantly more likely to attempt to consume an amount of beer greater than 32 ounces, but less than 128 ounces at one sitting if they can buy that amount at one time in one container, the prevention of intoxication and its collateral evils is a rational basis for such a restriction, especially given that an opened container of beer is a perishable commodity. This is the context in which the constitutionality of the statute concerned must be examined.” Well, what if they can buy that amount in 2 containers? 3 containers? 4 containers? Because they can. Or, what if, for example, they can buy MORE than that amount in one container? They can do that too. Also, this reads as though it’s an argument that they are just doing consumers a favor and making it less likely they get stuck with too much beer that they need to pour down a drain (or drink just to avoid wasting it) but also appears to make the faulty assumption that only one person will drink from a purchased growler. If four people are sharing a 64 ounce growler, for example, then each would get approximately 16 ounces (“approximately” because it’s relatively unlikely that everyone gets the exact same pour). If those four people want less, they could still go with a 32 ounce growler. If there is only one person, that one person can choose a 32 ounce growler. Granted, that one person could also just buy a bunch of 32 ounce growlers and drink them at one time if he or she so chooses or that person could purchase a 128 ounce growler. The fact that the 128 ounce growler exists make it hard to claim rationality.

They later point to Florida Statute §561.702, which lays out the legislative intent behind the Beverage Law.  Subsection 5 notes that it is the intent of the Legislature to “[e]ncourage alcoholic beverage vendors to implement responsible policies for serving and promoting alcoholic beverages and, by so doing, prevent the overservice of alcoholic beverages to customers and prevent the over-consumption of alcoholic beverages by customers while on the licensed premises of vendors.” There is no doubt that this is necessary and proper. Defendants then note that this “would certainly appear to be a rational reason for capping beer containers at 32 ounces.” That’s not right. Capping beer container size does not mean you are capping consumption.  It is not rational to say this while allowing 128 ounce growlers and while allowing people to buy multiple 32 ounce growlers or a 12 pack of cans and/or bottles or a 24 pack of cans, etc.

Any possibility of convincing people this is rational falls apart at the end of their memorandum when they argue as follows:

It is submitted it cannot be considered irrational that, if individuals may buy beer in bottles or jugs of over 32 ounces, but less than one gallon, they may assume that it is reasonable for an individual to drink such bottles or jugs. Further, they could honestly say, if asked by a spouse, friend or police officer about their drinking, that they had only had, “one beer”. It is inevitable that some persons who might have ordered a 64-ounce growler may decide, after consuming 32 ounces, that they have had enough. Therefore, the statute meets its rationale of helping to deter excessive drinking. The restriction is rationally designed to help discourage excessive drinking.

This law stops people from honestly telling a spouse, friend or even a police officer that they had only one beer.  Beyond being incredibly silly, it is just a strange thing to write, read and not delete. Obviously it would be intellectually dishonest to tell someone you had one beer if you had a 64 ounce growler. Consumers are most likely not drinking this directly out of the growler but hopefully, out of proper glassware. Anyway, that’s beside the point. In what world would a police officer rely on some intoxicated person saying he only had one beer? In what world is there some new regulation where blood-alcohol level is determined not by the amount of alcohol in the blood, but instead by the total amount of beers consumed based only on the amount of containers they were consumed from? I feel like even if a judge were reading this with interest and being somewhat convinced by the arguments, this would make his eyes fall out of his head. Again though, this completely ignores the fact that 128 ounce growlers are available.