The day after Senator Latvala filed his straight-forward growler bill that would leave the container laws in place and specifically allow growlers of 32, 64 and 128 ounces, there are some updates on the growler litigation filed in Federal court.

First, Judge Robin L. Rosenberg quickly denied a motion for oral argument on the State’s motion to dismiss. Plaintiff sought the hearing as a strong opportunity to make the clear point that the statute in place is completely irrational and has no rational relationship to any government interest. The Judge will rule based upon the papers.

At the motion to dismiss stage, a court will accept all factual allegations contained in the complaint as true and construe the complaint liberally in favor of the plaintiff. Ultimately, if a complaint may give rise to the entitlement of relief that can be awarded by the court, it should not be dismissed. While it is a standard that favors the plaintiff, it is certainly not as favorable as the rational basis standard of review applicable to this law.

Plaintiff generally notes that the “[growler ban] does not promote sobriety, public health or safety, or prevent harm to consumers” but rather that it is simply a form of protection for large breweries against competition from small breweries. It further notes that the 64 ounce ban is arbitrary in the way it limits beer while not limiting the packaging sizes of other alcoholic beverages. This is correct and hard to argue. It’s difficult to imagine allowing large bottles of hard liquor but not large bottles of beer with much less alcohol by volume in any way promotes the public interest in sobriety and the like. Plaintiff notes that the law “is akin to a speed limit of 65 miles per hour to promote public safety, which nevertheless allows drivers to go at speeds above 100 miles per hour, or to ignore the speed limit entirely so long as they drive sports cars.”

They also quote the defendants’ claim that consumers “could honestly say, if asked by a spouse, friend, or police officer about their drinking, that they had only had ‘one beer'” despite drinking a half gallon of beer.  This is the one that a court might laugh out loud at if presented during an oral argument. Plaintiff wants, for example, an opportunity to present a law enforcement expert to testify as to whether a reasonable law enforcement officer would be fooled by a drunk driver that consumed a half-gallon of beer but claims to have had only one.  Of course, such drivers can already do this without the legalization of the 64 ounce growler. But with an entire gallon or more of beer. This is where the officer may respond with a simple “are you freakin kidding me?” and the court may better realize how ridiculous the State’s argument is. No such luck.

We will see what happens next. Plaintiffs seek the opportunity to introduce evidence to prove that the State has no rational basis to enforce the container size restriction. The State wants it to go away. It may also be mooted entirely by the legislation filed by Senator Latvala (and soon to be filed in the House by Representative Sprowls).