Cindi Ross Scoppe

The Legislature’s gift to the liquor industry

The Wichita Eagle

I’VE BEEN TO Total Wine once; walked out with a lovely Pinot noir that would have cost me a good bit more money — but a good bit less time — if I had picked it up at the grocery store.

Of course, I only buy wine as a gift and liquor as an ingredient for my amazing amaretto pound cake or other decadently delicious culinary concoctions. Which is to say that it would be fine with me if there were no big-box liquor stores in South Carolina

What is not fine with me is our Legislature passing bad laws, constitutionally suspect laws, knee-jerk laws. And yes, I realize this is not a rare thing, but there are lessons here about the oft-confused distinction between bad court rulings and bad lawmaking.

Since forever, South Carolina limited liquor stores to three per owner, apparently worried that concentrating more stores in a few hands would lead to more advertising, more price cutting and, most important, more drinking. Perhaps that was true when it was hard to find a liquor store, but with one on practically every block — 75 in Richland County alone — it’s hard to believe that’s true today. So the limitation no longer holds water.

Total Wine, with stores in Columbia, Charleston and Greenville, challenged the limit, and in March the state Supreme Court declared it unconstitutional economic protectionism. Independent liquor stores, facing the prospect of the same Wal-Mart-style competition that has driven other local businesses out of business, ran crying to the Legislature.

It’s not clear that the court was constitutionally correct; Justice John Kittredge makes a strong case in his dissent that the majority used the wrong legal standard to reach its conclusion. But the case is decided, so the question now is what the Legislature ought to do. Or not do.

I was in the Senate the day senators bobtailed onto the state budget their rescue-the-local- liquor-stores amendment: They created a “supplemental fee” equal to 100 percent of a company’s annual proceeds from one of its three existing stores if it opens a fourth. My gracious, I thought: I had no idea so many senators were held so tightly in the clutches of the liquor industry.

The Senate declared its clearly confiscatory fee “necessary to fund additional law enforcement, regulatory measures, health care costs, and associated impacts on the health, safety, and welfare of the State’s residents resulting from the anticipated additional sales of liquor.”

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Read the court order and the dissent

SC Senate wants to reverse court’s liquor-store decision

Read the Senate amendment, 109.12

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I understand the dangers of alcohol; I am a persistent proponent of tougher laws against drunken driving. But the Senate’s justification is ridiculous.

Does anyone seriously believe that another really big store in a large-enough-to-support-it community is going to measurably increase consumption? Or increase crime? Or endanger the “health, safety, and welfare” of our citizens?

Last week, the House replaced that ridiculous language, and the fee, with a more straight-forward gift to local liquor stores: It prohibits the Revenue Department from issuing a fourth license to anyone.

I’d imagine there would be constitutional problems with ordering the state to ignore a Supreme Court order. As for the Senate’s fee? Well, I would hope the state would need something more than legislators’ pulled-from-thin-air justification to assert its constitutionality. But as Justice Kittredge pointed out, states have extraordinary leeway when it comes to liquor. (My favorite part of his opinion, quoting from an 1894 state Supreme Court order: “liquor, in its nature, is dangerous to the morals, good order, health, and safety of the people, and is not to be placed on the same footing with the ordinary commodities of life, such as corn, wheat, cotton, tobacco, potatoes, etc.” Tobacco, an ordinary commodity of life. My, how times have changed.)

Constitutional or not, the three-store limit makes no sense. And a confiscatory tax on any industry is only good public policy if it actually protects someone other than the competition.

Sen. Larry Grooms, who was joined by Sens. Katrina Shealy, Vincent Sheheen and John Scott in proposing the fee, said he wasn’t defending liquor stores but rather the sanctity of legislative power.

“I’m not opposed to considering unlimited licenses,” he said, calling the three-store limit ridiculous. “But it’s also ridiculous for the courts to write the laws of the state.”

Yes, it is. That doesn’t happen as often as critics suggest — as they do whenever a court strikes down a law they like. But it does happen. Justice Kittredge says it happened here, and he might be right.

It certainly happened last year, when our Supreme Court said, essentially, “we don’t believe the Legislature intended for the law to say this, so we interpret it to mean something entirely different.” And so it gave a local prosecutor the authority previously reserved to the state attorney general to convene a State Grand Jury. In spite of being presented with contemporaneous evidence that the Legislature had every intention of doing precisely what the court found nonsensical. In spite of being presented with no evidence to the contrary.

In the end, it’s frequently up to legislators to decide whether the effect of a court-written law is bad or good, and to leave it or reverse it.

In the State Grand Jury case, Legislators didn’t even complain, much less write a new law to overturn or modify the court-written law. They should show similar restraint in this case.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.

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