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Published: Wednesday, 11/1/2006

Judge voids Ohio law barring out-of-state alcohol

BY ROBIN ERB
BLADE STAFF WRITER
Judge Gene Zmuda, left, ruled in favor of Chris Eischen, right, who had been charged with illegally transporting beer into Ohio. Judge Gene Zmuda, left, ruled in favor of Chris Eischen, right, who had been charged with illegally transporting beer into Ohio.
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Toledo-area beer lovers can head north into Michigan for their kegs and six-packs again - at least for now.

A Toledo Municipal Court judge yesterday ruled that the Ohio law that prohibits the state's consumers from legally purchasing alcohol from retailers outside the state to drink in Ohio is unconstitutional because it interferes with federal interstate commerce law.

While the Ohio law is constitutional on its face, Judge Gene Zmuda wrote that the manner in which it is being applied by the state's Department of Public Safety liquor enforcement agents "indirectly discriminates against out-of-state purchases, and thus creates an impermissible burden on interstate commerce."

And that means the state's misdemeanor case against 27-year-old Chris Eischen of Toledo has been dismissed. He said he spent about $2,000 in legal fees to fight a charge of illegally transporting beer into Ohio.

"If it changes the law and gives us the freedom as Americans to be able to travel throughout the United States and buy what [we] want to buy, then yeah, it's been worth it," he said yesterday after learning that his case had been dismissed.

The case may be appealed, but the Ohio Attorney General's office declined comment because staff there had not received a copy of the judge's decision issued late yesterday afternoon.

Earl Mack, who oversees Ohio Public Safety's Toledo enforcement office, referred questions to a public information officer in Columbus.

She could not be reached for comment yesterday.

On Feb. 19, 2005, Mr. Eischen legally purchased beer from Flick's Package Liquor, Inc., located two miles north of the state line in Lambertville, Mich.

Ohio liquor enforcement agents stopped Mr. Eischen and his friend, 20-year-old Brook Johnston, of Defiance, as she drove them back into the Buckeye state.

Ohio law states that all alcohol consumed in the state must be purchased from a state-licensed establishment.

Agents with the Ohio Department of Public Safety's Toledo enforcement office have used the law to crack down recently on underage drinkers who cross into Michigan to buy kegs of beer.

The case against Mr. Eischen came down to constitutional conflicts, his attorney, Diane Youngston, had argued.

While the U.S. Constitution's 21st amendment, which repealed Prohibition, gave states the authority in regulating alcohol, the "commerce clause" in the original Constitution makes interstate commerce the responsibility of Congress.

Judge Zmuda considered several cases in reaching his 14-page decision, drawing heavily on a U.S. Supreme Court decision that concluded that a Michigan law preventing shipments of wine into the state from out-of-state wineries discriminated in favor of local producers.

While such laws do contain constitutional provisions, Ohio's liquor statutes, as applied, "unduly burden interstate commerce," he wrote.

"By denying Ohio residents meaningful access to the market of Michigan and other states, the statutes extend the state's reach beyond the core concerns of the 21st Amendment," he wrote.

Judge Zmuda left standing a single charge against Ms. Johnston, who said she drove Mr. Eischen to Flick's because she was behind him in the driveway that day.

She is charged with underage alcohol possession.

The keg was seized that day by liquor agents. Judge Zmuda did not address whether it would be returned.

Linda Flick, owner of the Michigan carry out, said news of the recent crackdown by Ohio agents had prompted plenty of phone calls from "frightened" customers, including those who have shopped there for years.

Like her, Ms. Flick said, they've never thought about the state border as a boundary line for liquor sales and see it as "one big community."

"They didn't understand what all the hullaballoo was about," Ms. Flick said.

Contact Robin Erb at:

robinerb@theblade.com

or 419-724-6133.



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