News flash: people like beer

IMG_2219 When Pacific Legal Foundation agreed to represent the Crafted Keg in its challenge to the State of Florida’s ban on craft-beer growlers, PLF had no idea of the attention that the case would receive. PLF should have known of course, since experts in the field of beer recognize its importance to human culture.

A variety of publications have picked up on the story since PLF filed this growler lawsuit. The reports include this Sunshine State News story, which kicked off the news coverage last Tuesday; this Reuters article; this piece in Creative Loafing Tampa Bay; and a great blog post at Reason by Damon Root, which calls the growler ban “idiotic.”

PLF also understands that the Florida Beer Wholesalers Association issued a statement opposing the lawsuit on Wednesday. This is not surprising, since the association, a consortium of beer distributors including all Anheuser-Busch distributors in the state, has opposed efforts to fix the growler law legislatively. The Crafted Keg and Pacific Legal Foundation brought this suit to benefit consumers while, as the media has long noted, the Florida Beer Wholesalers Association opposes fixing the growler law because it has the potential to hurt their bottom line, regardless of the benefit to the consumer.

The Florida Beer Wholesalers Association can make its stand in favor of irrational law, overregulation, and Big Beer. PLF is happy to stand on the side of constitutional law, liberty, and the consumer.

Sentaor Vitter supports PLF’s Clean Water Act petition to U.S. Supreme Court

Yesterday, we reported here that we had filed a petition for review in the U.S. Supreme Court to protect landowners from government abuse under the Clean Water Act.  Today, we are happy to report that Senator Vitter, on the Environment and Public Works Committee, has announced his support for the case.  His statement can be read here.  The case, Kent Recycling Services v. Army Corps of Engineers, has also gained support from scholars, practitioners and property rights advocates nationwide.

Washington’s Supreme Court hears charter schools argument

On Tuesday, October 28, the Washington Supreme Court heard arguments about the constitutionality of the State’s voter-adopted charter schools law.  Although the opposition pursued a multifaceted assult on the charter schools law, the court focused on a single issue: money.

The State Constitution restricts the use of certain funds for the support of “common schools.”  So the question becomes whether or not charter schools are “common schools.”  Counsel for a coalition of teachers, parents and community groups, argued that, in the mid- to late-1800′s, the state’s founders and legislators emphasized the need for common schools that are open to all children, supported by local taxes, and controlled by an elected board of directors.

The State, and intervening supporters of charter schools, argued that the public school system has evolved to allow for innovative and flexible programs that better serve an increasingly diverse student populaton.  And the State already funds a variety of non-traditional programs for, among others, academically gifted students, at-risk youth, work-based learning, online courses, and special education.

The Justices questioned both sides about which dollars are restricted to regular public schools and which are not, and what that means for charter schools.  But there were no clear answers, making it impossible to guess how the Court will rule on the case.

Further review in the Fourth Circuit’s permit shield decision?

The Clean Water Act generally forbids the unpermitted discharge of pollutants into regulated waters.  But in addition to exempting from liability the permitted discharge of pollutants, the Act provides further protection for permittees for some unpermitted discharges.  Specifically, the Act’s “permit shield” provision, as interpreted by EPA and many lower courts, absolves from liability a permittee who discharges pollutants not specifically covered by the permit, so long as the permittee had no good reason to know that such pollutant discharges would occur, and the permitting agency (generally a state agency designate of EPA) was aware (or reasonably should have been aware) that such a discharge could occur.

In Southern Appalachian Mountain Stewards v. A & G Coal Co., the Fourth Circuit substantially narrowed the permit shield protection.  According to the decision, a permittee can avail itself of the permit shield if, but only if, the permittee’s application specifically states whether the pollutant in question is believed to be present or absent from the proposed discharge.  Because the coal company’s permit application was entirely silent as to the expected presence or absence of the pollutant in question (selenium), the company was not entitled to the permit shield defense.

Hence, under Southern Appalachian Mountain Stewards, a permit applicant now has the burdensome obligation of detailing the presence or absence of all conceivable pollutants that may appear in its discharges.  That requirement seems unnecessary, particularly in run-of-the-mill permit applications where the permitting agency will likely know the types of pollutants to be expected from the type of permit application at issue.

The coal company’s petition for rehearing was denied in early August, so we should know by the end of next month whether further review in the Supreme Court will be sought.

PLF’s challenge to “For Sale” sign ban makes waves

PLF’s lawsuit challenging the City of Alexandria’s ban on “For Sale” signs in parked cars is creating a big response from the media and the City itself. As our readers recall, our client, Scott McLean received a parking ticket a few years ago for placing a “For Sale” sign in his car while it was parked on a residential street near his home. Now he would like to sell his truck, but he doesn’t want the City to fine him again. The Washington Post put it this way:

Rather than risking another citation, he called the Sacramento, Calif.-based Pacific Legal Foundation, a libertarian organization that can’t stand when the government seems to be encroaching on individual liberties.

“I can put a bumper sticker on my vehicle about my religious views and moral views,” said McLean, 35, and an attorney in his own right. “Those pocketbook issues are just as important. For me, free speech doesn’t have any qualifiers.”

Last week, McLean and the foundation filed a lawsuit against the Alexandria government, calling the city’s decades-old no-sale-sign statute an arbitrary ban on commercial speech that violates the First Amendment.

A DC-area affiliate of CBS news also picked up on the story, with new anchors commenting that the City’s law should go in the “Whhhaaattt? File,” because the ban is surprising and “crazy.”


The City of Alexandria must be getting the message. Last night, it announced a moratorium on enforcing the law: Continue reading

PLF petitions Supreme Court to protect landowners from Clean Water Act abuse

Kent Recycling Services wants to establish a solid waste landfill in Louisiana. But Kent has been stymied in this effort by an overzealous Corps of Engineers that claims the subject property contains regulated wetlands.  Kent disputes this claim and is seeking judicial review.  Unfortunately, the Fifth Circuit Court of Appeals refuses to give Kent its day in court.

Under the Clean Water Act, the Army Corps of Engineers asserts regulatory authority over almost all waters (and much land) in the United States, including tributaries, ditches, ponds, ephemeral streams, drains, wetlands, riparian areas and “other waters.”  On more than one occasion, the Supreme Court has chastised the federal government for overreaching and abusing its power under the Act.  For example, in SWANCC, in 2001, the court held the regulation of remote ponds exceeds statutory authority and raises constitutional questions.  Then again, in PLF’s Rapanos case, in 2006, the court held the agency’s expansive interpretation of the Clean Water Act is over broad and creates federalism problems..  More recently, in PLF’s Sackett case, Justice Alito commented that the “reach of the Clean Water Act is notoriously unclear” and that “any piece of land that is wet at least part of the year” may be covered by the Act, “putting property owners at the agency’s mercy.”  It is imperative, therefore, that the courts safeguard a landowner’s right to challenge the government’s erroneous application of the law to his property.  But that safeguard failed in this case, establishing a dangerous precedent. Continue reading

Dictators of the dump

What do a bureaucrat, an identity thief, and a street bum have in common? They all want to pick through your rubbish. Seattle recently announced that it will fine individuals and businesses whenever compostable material accounts for over ten percent of their waste. Trash collectors will inspect bins and ticket folks who throw out too much food. The City will provide no means of challenging these citations.

Government’s interest in garbage is nothing new. Cities across the country enforce recycling requirements, and police often hunt through trash for contraband. However, this food waste rule imposes a whole new brand of rubbish inspection. A trash collector can see a big cardboard box without poking around, but only a detailed search will reveal whether more than ten percent of the garbage is compostable foodstuffs. Because the City will need to hire a bigger army of collectors to do this snooping, Seattle citizens will no doubt have to shoulder the costs.

The bigger concern, however, is constitutional. Privacy, autonomy, and due process are the real victims of Seattle’s rubbish rule. The Washington Supreme Court has said that individuals have a privacy interest in the stuff they throw away. Yet trash collectors can only scrutinize your scraps by sifting through your garbage. This intrusion should give anyone pause, regardless of your feelings about rotten food.

The ordinance also prevents anyone from protesting a ticket from the garbage man. The power to challenge government action is essential to liberty. The City’s reason for denying citizens their due process rights is practical: if anyone could challenge a citation, the City would have to preserve each individual’s trash as the sole evidence of the violation. Practical reality, however, does not mean that the City can ignore the fundamental right of due process; it just means the City should trash the ordinance.

There’s no such thing as “careful” discrimination

PLF friend Jennifer Gratz published an op-ed in the Washington Times today on the Administration’s desire to see racial preferences continue indefinitely.  Here’s a snippet:

In today’s increasingly pluralistic society, race usually does not — and certainly should not — determine what obstacles individuals have had to overcome or advantages they receive. Sadly, race-based policies lock individuals into stale stereotypes and encourage administrators and bureaucrats to treat applicants as racial tokens instead of unique individuals.

There are many benefits to having institutions made up of people from diverse backgrounds, cultures and ethnicities, and we are right to strive for a culture that provides fair opportunities for any individual who works to excel. Demands for racial gerrymandering, though, in education, business, politics or any other segment of society only stall our progress as a nation toward colorblind equality.

Read the rest here.

Drink up! PLF challenges Florida’s ban on growlers

mini-growler aka grenade

The Crafted Keg mini-growler

Growlers” are jugs of beer that patrons buy at craft beer establishments and then bring home to drink, and later carry to other taverns, breweries or restaurants, for refills with various varieties of custom brewed beer.

In the vast majority of America, a 64-ounce growler is the industry standard, and enthusiasts collect and re-fill their growlers throughout the country.  Florida’s growler prohibition (Fla. Statute Section 563.06(6)), however, prohibits this industry-standard growler.  The 64-ounce size-which just happens to be the same amount of beer that one will find in a six-pack-cannot be sold or filled by any business in the state. That the prohibited growler is the same size as the ubiquitous six-pack is not a coincidence. Far from it.

Continue reading

Moneyball Sentencing

University of New Mexico School of Law Professor Dawinder Sidhu has an excellent article

Brad Pitt as Billy Beane

available at SSRN about the criminal justice’s system increasing use of statistics to predict a defendant’s future dangerousness.  Professor Sidhu analogizes to the concept of Moneyball—or the practice of using batting statistics to predict a baseball player’s future performance (as popularized by Oakland As General Manager Billy Beane).  In order to save money, reduce subjectivity, and increase accuracy, the sentencing community is increasingly relying on the rate of recidivism (fancy legal world for repeat criminal behavior) for groups in order to predict the rate of repeat criminal behavior for others who possess the same group characteristics.

As Professor Sindhu points out, this system is flawed for quite a few reasons:

Continue reading