Oregon Homebrewers Stymied by New Interpretation of Law
By Guest Blogger, Summer Associate
The Oregon Liquor Control Commission and the Oregon Department of Justice recently opined that, under a post-prohibition-era law, homebrewed beer and homemade wine must be consumed at home. This opinion, reportedly in response to a question regarding the permissibility of public competitions involving homebrewed beer, is in effect a reversal of the OLCC’s previous policy permitting public competitions and understandably has caused great concern within the Oregon home brewing community. One immediate effect has been the cancellation of the amateur beer and wine competitions at the Oregon State Fair after more than 20 years of such contests.
The law in question, ORS § 471.403(1), reads
No person shall brew, ferment, distill, blend or rectify any alcoholic liquor unless licensed so to do by the Oregon Liquor Control Commission. However, the Liquor Control Act does not apply to the making or keeping of naturally fermented wines and fruit juices or beer in the home, for home consumption and not for sale.
Apparently, the OLCC and DOJ determined that “for home consumption” does not include public tastings and competitions, and therefore any out-of-home consumption is subject to OLCC control.
However, a few questions remain. First, what will the Oregon courts say that the statute means? The OLCC and DOJ have changed their view of the law and may therefore choose to enforce its provisions more broadly, but in the absence of a new administrative rule codifying the revised interpretation, the courts may not come to the same conclusion as OLCC. Second, specifically which provision of the Act would a homebrewer violate by participating in a competition? Arguably, a homebrewer would violate ORS § 471.405(2), which reads
No person shall purchase, possess, transport or import, except for sacramental purposes, an alcoholic beverage unless it is procured from or through the Oregon Liquor Control Commission, except as provided otherwise in the Liquor Control Act.
That said, because ORS § 471.403(1) permits the “keeping” of homebrewed beer in connection with home consumption, it is not clear that participating in a public competition amounts to more than this.
In the meantime, some homebrewers have organized the Oregon Homebrewers Alliance to urge the Oregon Legislature to update the law during its next session in January 2011. Reportedly, Rep. Mike Schaufler, D-Happy Valley, and Sen. Floyd Prozanski, D-Eugene are working on a draft bill that would change the law to explicitly allow home brewers and winemakers to take their products outside their homes. Stay tuned.
States that Regulate . . . and Control
Taxes and One-Stop-Shopping
As we all know, Washington is not the only state that controls the sale and distribution of alcohol. Each of the 19 (1) “control states” have different practices that distinguish them. Here, and in future posts under “States that Regulate . . . and Control” we will provide bits of information on the control states and how they operate.
- IDAHO – What is distinguishing Idaho from other control states right now?
TAXES. There has reportedly been an influx of Washington customers who are traveling to Idaho to avoid paying the higher liquor taxes in Washington. This has long been a customary practice in the Northeast, where a shorter commute can make a trip across state lines worth the few dollars of savings. Here in Washington, however, only the eastern-most residents benefit. - PENNSYLVANIA – With the current drive to privatize in Washington, it is interesting to remember that the state could always impose more control: the Pennsylvania Liquor Control Board recently rolled out its new wine kiosks, where one must scan an ID, pose for the video camera, and take a breathalyzer before purchasing wine from an automated machine. In Pennsylvania, wine and liquor are sold from state stores, so this provides consumers the “opportunity” to buy wine in a grocery store – one stop shopping at its best?
(1) Alcohol is regulated at the county level in Maryland; Worcester and Montgomery counties both control alcohol sales.
