It’s Christmas Eve, so the State filed its reply in support of its motion to dismiss the growler lawsuit. The State generally built some straw men and knocked them down with ease.

Defendants began by arguing simply that the statutory purpose of avoiding excessive consumption cannot be refuted by plaintiff. Defendants state that “[t]here is certainly no question that the intent of precluding the sale of beer in containers between 32 ounces and 1 gallon was to decrease the likelihood of excessive drinking and to encourage alcoholic beverage vendors to be prudent in their serving practices.” There is certainly question. Without such question, Florida wouldn’t be mocked for having this law on the books and for continuously defending the restriction while reality and the rest of the country prove that more containers sizes do not lead to excessive drinking. Defendants probably wouldn’t have been sued if there was certainly no question (granted, some lawsuits are obviously without merit – this isn’t one of them).

The defendants note that Senator Tom Lee said previously that “[t]he cap is for a reason you might expect, and that’s moderation. Larger beer sizes, especially for high-alcohol beers, could lead to overconsumption and impaired drivers.” There you have it. A politician said it. It must be true. That’s fine, except even if we assume now that this was the rationale for the container size restrictions when the law was put in place, we don’t have to accept that it is in any way logical or rational. The easy-to-satisfy standard is that the law must be rationally related to a legitimate government purpose. The standard is not that somebody must later be able to say that those who implemented the law say it makes sense and therefore it does. Just because the Senator says they had a reason for their decisions does not in turn make that reason rational. The law that Lee changed was implemented to punish Miller for choosing Georgia over Florida. Those who implemented that law had a reason for it. It was a silly reason.

Those who worked to implement the sugary drink ban in New York had a reason for doing so. However, much like the situation here, when considering reality and the loopholes inherent in the restriction, the restriction was irrational. A court determined it was unconstitutional.

Even the logical points made by the State are ultimately refuted by their own arguments. They note, for example, that consumers are more likely to drink a growler in one sitting due to its perishable nature, which is not necessarily the case for wine and liquor. They also argue that six packs are not comparable because consumers may just open a bottle or two and stop rather than having to get through an entire growler.  However, like the sugary drink case, consumers can buy multiple 32 ounce growlers (granted they might be less likely to open a second) and they can buy gallon growlers (again, perhaps given the ability to buy too little or too much, consumers go for too little to avoid waste). That’s also like saying we don’t want you to drink too much, but if you do, we want you to drink what we perceive to be way too much. Perhaps they’ll do something similar with drugs. Don’t take these drugs, but if you do, make sure you overdose. Then they can somehow put it in the ensuring public safety category?

To some other arguments:

  • Defendants claim that plaintiff’s assertion that the 32-ounce cap has created confusion for its customers does not establish a lack of any possible rational basis for the legislation concerned. That’s true. But plaintiff didn’t argue that was the case. Plaintiff simply noted this to be true and that it causes some economic hardship for the bar.
  • This is the best one so I will quote the entire thing. “Plaintiff’s assertion that the state must prove by evidence that a consumer is more likely to attempt to drink 64 ounces at one sitting than 128 ounces approaches the absurd. Plaintiff’s claim that they may be able to show that a consumer who had drunk 64 ounces of beer wouldn’t fool a police officer by saying he had only had one beer is irrelevant where the state of mind concerned is not that of the officer, but of the drinker.”  This goes back to the hilarious argument put forward by the defendants that, golly, a consumer could drink an entire 64 ounce growler and tell a friend, a spouse or even a police officer that he only had one! Plaintiff simply noted how ridiculous such an argument is, because it is a ridiculous argument. Looks like the defendants agreed and may have felt embarrassed by it so they used it to attack plaintiff. Or defendants made the argument in the first place as a joke so they could then say, “Ha! Why would you even waste your time arguing against such a ridiculous thing?!” If that’s the move, touché. They seem to have stuck by their argument. Since a consumer COULD claim to have only had one beer, that consumer is more likely to drink too much. May as well just say, “hey consumers, you’re dumb”.

Defendants also argue that “[i]t is undisputable that a purpose of the 32-ounce cap was to discourage excessive drinking and not to send the wrong message to young people” by citing to the interim project report that led to the recommendation to allow all container sizes up to 32 ounces and 128 ounces or greater.  There, the Committee on Regulated Industries, chaired by Senator Lee, considered the following factors:

  • Beer prices may increase with more competition. Large breweries would want to sell in the same size bottles as new industry entrants, so consumers would be charged extra for new costs/equipment for those large breweries.
  • Consumer protection. New sizes would cause consumers to be confused about which brand represented the best deal on a per ounce basis. (really?)
  • Encouraging moderation. Container sizes larger than 32 ounces may encourage the opposite. (128 ounces is larger, whoops).
  • Impact on breweries, distributors and retailers.

Interestingly enough, the Committee noted the cost-efficiency of 22-ouncebottles and that those bottles are in common use in other states early in its analysis. Sounds familiar.

The Committee ultimately recommended that the law should permit the sale of malt beverages packaged in containers containing not more than 32 ounces. That seems fair. It would make an argument about excessive consumption rational. But the carve-out allowing sales of gallon containers makes that argument a difficult one. If anything, this demonstrates that the law is simply written wrong and should be more specific about containers that may be for individual use for an argument about excessive consumption to make sense.

It seems clear that the defendants realized this was the case. Immediately before the conclusion, defendants argue that “the 32-ounce cap on malt beverages does [encourage moderation] and to speculate otherwise would approach abusurdity.” There is no 32 ounce cap. To avoid that issue is absurd.