I rarely follow the ins and outs of liquor permitting in the Hoosier state (or elsewhere, for that matter). To be candid, I consider the complex web of restrictions governing the sale of alcohol to be an unfortunate “leftover” from America’s more Prohibitionary times and impulses; aside from reasonable restrictions on sales to minors, I see no legitimate reason for most of these rules.
However, a lawyer friend suggested I read the court order recently issued in the case of “Spirited Sales v. Indiana Alcohol and Tobacco Commission.” It was an eye-opener.
The take-away lesson will confirm the suspicions of both cynics and libertarian-minded citizens: arcane and excessive regulatory processes can be manipulated if you have friends in high places. (And I might note that with the loss of reporting on local government agencies, the manipulators have become bolder.)
The 50+ pages of the Marion Superior Court’s order detail how favoritism and cronyism benefitted competitors of Spirited Sales, whose parent company is owned by shareholders of Monarch Beverage, a beer and wine wholesaler.
Spirited Sales had applied for a liquor wholesaler’s permit. The rules (for some unknowable reason) prohibit beer and wine wholesalers from also being liquor wholesalers. The permit was denied, ostensibly due to the “common ownership” of Monarch and Spirit’s parent, although the Court noted in excruciating detail the reasons that the companies were clearly separate under relevant law–and more separate than at least eleven cases in which the Commission had awarded permits to affiliated entities.
The court acidly noted that the only opposition to the permit came from the company’s competitors: No alcoholic beverage producers, retailers, persons interested in public health or morality, no persons concerned about collection of taxes, and no public officials opposed the permit.
Just the competitors.
Despite the clear impropriety, those competitors were allowed to take part in the proceedings as if they were parties; and they had numerous “inappropriate and concerning ex parte communications with the Commission,” which the Court meticulously listed.
The Court also listed all of the ways in which the hearings deviated both from the rules and from the way other hearings were conducted–unexplained delays, refusals to provide information to which the petitioners were entitled, acceptance of “evidence” offered by competitors, refusal to allow Spirited to cross-examine competitors’ witnesses, and much more.
So–why? What explained this highly inappropriate treatment of a petitioner?
Evidently, people on the Governor’s staff “harbored animosity” toward Monarch and its President, and freely communicated to the Commission their desire to see the petition denied. Several of those discussions are referenced in the Court’s order, and they display a shared intent to deny Spirit the benefit of the impartial hearing to which they were entitled, and a smug satisfaction in their ability to (forgive the language) screw them over.
After ruling that the denial had been “arbitrary and capricious” and that Spirited was entitled to its permit, the Judge wrote
this Court considers the relationship between members of the Commission, staffers of the Governor’s office, the Hearing Officer, and the Remonstrators as evidenced by emails submitted to the Court, to be disturbing and inappropriate…Such discussions challenge the integrity of the application process and raise questions about the Commission’s willingness to serve all citizens of Indiana equally, fairly and without bias.
This is precisely the sort of cronyism and influence peddling that undermines the rule of law, and gives rise to the belief that “it isn’t what you know, it’s who you know…”