Attorneys: NY's Ban on Direct Wine Sales Violates Constitution

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Fresh from recent rulings in North Carolina and Virginia that bans on wine shipments from those states to consumers outside their borders are unconstitutional, final arguments began in New York yesterday in a case challenging that state's ban on such wine shipments.


The lawsuit pits plaintiffs Juanita Swedenburg of Swedenburg Winery in Virginia; David Lucas of Lucas Winery in California; and New York residents Patrick Fitzgerald, Cortes DeRussy and Robin Brooks against New York's State Liquor Authority. The Coalition for Free Trade and attorney Clint Bolick of the Washington, DC-based Institute for Justice are coordinating the plaintiffs' case. The case began in February 2000.


In addition to wanting the court to allow direct sales from out-of-state wineries to New York residents, the plaintiffs also want the court to strike down restrictions on online advertising of wine sales.


The plaintiffs' attorneys argued yesterday that the ban on shipments from outside New York violates the commerce clause and the privileges and immunities clause of the U.S. Constitution, which forbid such protectionist trade barriers. The lawsuit further argues that a related ban on advertising of wine sales across state lines violates the First Amendment.


U.S. District Court Judge Richard Berman said he would rule as soon as possible.


"The judge was very receptive to our arguments," said Steve Simpson, an Institute for Justice attorney. He said, however, that the judge seemed to be considering an argument by liquor wholesalers to strike down the provision in the state law that allows in-state wineries to direct ship rather than overturn the portion of the law that prevents out-of-state wineries from direct shipping.


"This would make everything even," Simpson said. "No one would be able to direct ship, and this would satisfy the commerce clause of the Constitution. That would be kind of a Pyrrhic victory for us. While we argued strenuously that [the judge] shouldn't do that, it was obvious Berman was grabbling with that issue."


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