The Difference is What They Steal From You

I did a short post on this for the "Abolish the PLCB -- Rewrite the Code!" Facebook group. If you missed it there (and you really should join), this is the full version.

I'm about to go out shopping for my Labor Day get-together (planning ahead, as the PLCB minions always nag about). Phone in hand, I'm checking prices, just on the rare case that the PLCB put something I want on clearance. Because that's the only way they ever beat Total Wine's pricing. No surprises: no clearance deals, and nothing I wanted was on sale, or the difference might have been greater.

I usually go to New Jersey, but the Total Wine in Towson, Maryland was closer, and even with the so-called "Free State" (what bitter irony) charging a 9% sales tax on alcohol it worked out to about the same total cost as New Jersey, but with less driving time. This is a big store at 30,000 sq.ft. A true Superstore unlike anything in Pennsylvania. They also sell beer — like any real liquor store would — and as a bonus (for me, at least), they sell cigars, too. If Total Wine has a variable pricing scheme, it at least appears to favor the consumer with lower prices, and not just the owners. Competition will do that.

Here's the Pennsylvania version of variable pricing at work. Jack Daniel's is the largest selling American whiskey nationwide, and in both Pennsylvania and Maryland. If you compare the prices on big brands like that, keep this in mind: every dollar difference is what the PLCB is stealing from you with variable pricing. You know that Total Wine isn't losing money. They're set to overtake the PLCB in total sales shortly, so they must be doing something right, even though they have to deal with competition and not the easy ride of a police enforced monopoly.

Dare to compare:

Kendall Jackson Chardonnay Vintner's Reserve California PLCB $15.99, Total $9.97 - $6.02

Maker's Mark Straight Bourbon Whisky 1.75L PLCB $59.99, Total $44.99 - $15.00

Kim Crawford Sauvignon Blanc Marlborough PLCB $11.89, Total $10.97 - $0.92

Apothic Red PLCB $12.99, Total $7.97 - $5.02!

Tito's Handmade Vodka 80 Proof 1.75L PLCB $34.99, Total $28.99 - $6.00

Jack Daniel's Old No 7 Black Label 1.75L PLCB $46.99, Total $39.99 - $7.00

These are common choices, big sellers. Nothing out of the ordinary or esoteric to skew the results. It does show how badly we are being treated, how badly the PLCB is managed, how badly variable pricing is being abused...and how much the PLCB lied to get it. We told you this would happen. And here it is, in black and white.

End the charade. Privatize.

What could Tennessee Wine and Spirits Retailers Association v. Thomas mean to Pennsylvania?

I am not a lawyer, and some or all of my thoughts could be right or wrong, so maybe this post should be filed under wishful thinking, but...there seems to be a crack in the control wall. It's from the hammer blow struck by the Supreme Court's decision in Tennessee Wine and Spirits Retailers Association v. Thomas, handed down on June 26. Take a look with me and see what you think. 

The future of the PLCB?

The facts of the case:

To sell liquor in Tennessee, you need a license from the Tennessee Alcoholic Beverage Commission (TABC). That's pretty normal...in states where private liquor stores are allowed. But there was a catch in Tennessee. Under Tennessee Code, to get a license, you must have been a resident of the state for two years. There was a ten year residency required to renew a license, so don't plan on leaving. And yes, the same requirements were there for corporations.

The case stems from two license applications that did not meet the residency requirement. The TABC was planning to approve their applications anyway...until the Tennessee Wine and Spirits Retailers Association informed TABC that if they did, they planned to sue. (You know...to protect their competitive advantage.) The TABC preemptively went to court to determine the constitutionality of the requirement. The district court ruled that it violated the dormant Commerce Clause of the U.S. Constitution (Been saying that about the PLCB for years! -- Lew). The Sixth Circuit affirmed, and it was off to the Supremes, because the Association wasn't giving up on their anti-competitive lawsuit. 

Cracking the wall around the 21st Amendment

The Supremes Say: 

In a 7-2 decision (Justices Gorsuch and Thomas dissenting), the court found that: Under the dormant Commerce Clause, notwithstanding the Twenty-First Amendment, a state may not regulate liquor sales by granting licenses only to individuals or entities that have met state residency requirements.

The 21st Amendment has long been held to allow states free rein on writing laws controlling the sale of alcohol within their borders. Section 2 of the Twenty-First Amendment states: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

But a number of Supreme Court decisions since the 1990s -- 44 Liquormart, Granholm, etc. -- have been chipping away at the absolute nature of such control. Tennessee Wine and Spirits takes that quite a step further. The Court’s Commerce Clause jurisprudence holds that “a state law that discriminates against out-of-state goods or nonresident economic actors can be sustained only on a showing that it is narrowly tailored to ‘advance a legitimate local purpose.’” Tennessee’s residency requirement clearly favors residents over nonresidents, hard to justify as a "legitimate local purpose" in the face of the Commerce Clause.

That's just what the Supreme Court found. The Court noted that at the time the Eighteenth Amendment (nationwide prohibition) was ratified, it had already been established that the Commerce Clause prevented states from discriminating against the citizens and products of other states. Against this backdrop, when the Twenty-First Amendment was ratified, “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.” Thus, while § 2 of the Amendment gives states latitude with respect to the regulation of alcohol, it does not allow them to violate the nondiscrimination principle.

(A discrimination, maybe, against every citizen and entity who would like to sell alcohol in competition with the state's police-enforced monopoly?)

The Court concluded that protectionism is not a legitimate local purpose and that the residency requirement “has at best a highly attenuated relationship to public health or safety.”

My Opinion
Our state law does discriminate against out-of-state citizens and out-of-state economic actors. It also imposes police powers to maintain and enforce protectionist measures. Read the beginning of the Liquor Code Section 104(a):"This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth and to prohibit forever the open saloon, and all of the provisions of this act shall be liberally construed for the accomplishment of this purpose."

In the above decision, the Supreme Court held that "Protectionism is not a legitimate local purpose" and stresses the REGULATORY authority, not monopoly authority of the state. But does that make Pennsylvania's Almighty Liquor Code invalid? That just might be the next question the Court will have to decide. How much does the 21st Amendment give the states the right to impose protectionist, monopoly, discriminatory measures, instead of regulation that allows the intent of the Commerce Clause? How much does it matter if the state allows private retailers or only state store sales?

As I said, I'm not a lawyer. But it does make me think of what might be coming down the road at some point. I think that Costco and Total Wine teaming up will have the resources to get it done and none too soon for me.

Privatize.