Tag Archives: alcohol law

The History of Beer Litigation in California: The Case of Would-be Reformers Nelly Smith and Annie Keating

It is not specifically “beer litigation,” but it is the earliest case from California that I have come across concerning laws relating to beer consumption.

In 1869, two “pretty waiter girls,” Nelly Smith and Annie Keating, remained on purpose beyond midnight in a drinking saloon in violation of a city ordinance that banned women  (and live music) from bars or “beer cellars.” They were duly arrested and fined for their violation. The article below, printed in the Dec. 3, 1869 edition of a Sacramento Daily  Union, reveals it was a “test case”: it was intended that the conviction would be challenged on Constitutional Grounds.


The California Supreme Court opinion was not favorable to women or bar owners, upholding in Ex Parte Smith, October Term 1869, the ordinance as applied to women.

It was challenged on grounds of impinging upon the inalienable right to the pursuit of happiness, as well as the equal protection clause of the 14th Amendment.

The court allowed that perhaps females could gain enjoyment or happiness from being “at such places” after midnight. However, it had no problem dispensing with the “inalienable right” argument, finding that there are many legitimate reasons for governments to interfere with the right to pursue life, liberty, property, and happiness, including laws designed to promote public peace and good order, and public decency and morality.. The Constitution prevents only legislation that injures natural rights in a destructive or unreasonably restrictive manner. Judge Sanderson was willing to defer to the judgment of the Board of Trustees of Sacramento: that the presence of females in saloons after midnight was “of a vicious and immoral tendency.”

Judge Sanderson was likewise untroubled by the law’s uneven effect on men and women. <Side note for fun: the Judge describes military service and jury duty as burdens placed only upon men while showing that the law acts differently upon different categories of people in many acceptable ways>. Satisfied that where a law seeks to prevent a wrong  of a “character which permits of its being done … by one sex and not by the other,” Sanderson refused to countenance an equal protection violation so long as the law is reasonable. After all, in this case, the evil was “exclusively due” to females.

This ruling is of course an artifact that predates the heightened scrutiny a high court would now give to a law discriminating on the basis of gender. Justice Scalia likes morality legislation though–I wouldn’t be surprised if he backed a law like this one.



Advertising by Autographing

There are restrictions on the freedom of brewers (and other suppliers) to advertise the availability of their products at a particular retailer. For one, they generally cannot initiate the transfer of information–someone must request (such as by clicking “Find Our Beer” on a web page) the information first.

A California ABC industry advisory details one way that a brewer could advertise the availability of its product at a particular retailer proactively. §25502.2 authorizes (until 1/1/16, at least) a supplier to “employ or engage” a person to sign autographs for consumers at an off-sale retail licensee’s premises (a liquor store or bottle shop, for example), and to advertise in connection with the event, including the beer to be featured, and to list the name and address of the retailer in the advertisement. Restrictions include no pictures of the retailer’s premises, and the listing must be “relatively inconspicuous in relation to the advertisement as a whole.”

This privilege may be used twice per year per retailer and must be registered in advance with ABC. While limited, this could be an effective way for small breweries to engage with their local fans (the brewer(s) themselves could sign the autographs) and to announce the availability of their product at a new location (or just to raise awareness about pre-existing availability). If the brewer were to make a special release beer for the event (or make an already popular seasonal beer available first at the event), that may make it even more successful.

Small brewers ought to be able to just send out a Tweet whenever they’re newly stocked at a store or put on tap at a bar, especially those that only self-distribute and are available in limited locations. The market works better when consumers have full information with which to make their choices and there would be no risk of the harms the regulations seek to prevent. For now, though, they are constrained to making use of the limited exceptions such as the “autographing event” one mentioned here. Since it would cost little and foster relationships with local retailers, small brewers should try to make use of it while it is available!