Utah's liquor ad ban to be put on ice
By The Associated Press
07.25.01
(Editor's note: The Utah Alcoholic Beverage Control Commission decided Aug. 6 not to appeal the 10th Circuit's ruling. ABC Chairman Nicholas Hales said the commission would instead meet Aug. 9 to discuss how to bring state law in line with the ruling.)
SALT LAKE CITY — The 10th U.S. Circuit Court of Appeals has ordered a federal judge to stop Utah from enforcing its ban on wine and liquor advertising pending further litigation.
The state law forbids ads promoting anything stronger than 3.2 percent-alcohol beer. The appeals court said distinguishing between types of alcohol was "irrational." The court also found that the state's advertising ban goes too far, stomping on commercial free speech.
"In the meantime, Utah unquestionably retains the power to attack alcohol-related problems through methods that do not restrict speech," according to the ruling released yesterday.
The Utah Attorney General's office had no immediate comment, said spokesman Paul Murphy. The office was closed yesterday for Pioneer Day, a state holiday.
In 1996, attorney Brian Barnard filed the lawsuit to have the state's liquor advertising ban overturned, claiming it violated First Amendment free-speech protections.
He also asked that the law be suspended until the case was over. It was on this point that the appeals court ordered U.S. District Judge David Sam to reverse his decision.
"It is a substantial victory in that the opinion gives us a great deal of guidance in the overall case," Barnard said. "Based on what they've said here, unless the state of Utah has some miraculous thing to say, we've won."
When the case is returned to Sam, Barnard will ask for a summary judgment.
The lawsuit named Gov. Mike Leavitt and the state liquor commission on behalf of the magazine Catalyst. The magazine wanted to publish a dining guide listing the beers, wines and cocktails available at local establishments.
The suit was filed shortly after the May 1996 U.S. Supreme Court ruling in 44 Liquormart, Inc. v. Rhode Island, which found that the state could not keep a liquor store from advertising the prices of alcohol.
That fall, Barnard asked Sam to issue the injunction to allow Catalyst to publish its restaurant guide.
About 3 1/2 years later Sam denied the request. Barnard appealed that decision to the 10th Circuit. Barnard said he was never given a reason for the judge's delay.