[Congressional Record Volume 145, Number 112 (Tuesday, August 3, 1999)]
[House]
[Pages H6856-H6887]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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TWENTY-FIRST AMENDMENT ENFORCEMENT ACT
Mr. GOSS. Mr. Speaker, by direction of the Committee on Rules, I call
up House Resolution 272 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 272
Resolved, That at any time after the adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 2031) to provide for injunctive relief in
Federal district court to enforce State laws relating to the
interstate transportation of intoxicating liquor. The first
reading of the bill shall be dispensed with. General debate
shall be confined to the bill and shall not exceed one hour
equally divided and controlled by the chairman and ranking
minority member of the Committee on the Judiciary. After
general debate the bill shall be considered for amendment
under the five-minute rule for a period not to exceed two
hours. It shall be in order to consider as an original bill
for the purpose of amendment under the five-minute rule the
amendment in the nature of a substitute recommended by the
Committee on the Judiciary now printed in the bill. The
committee amendment in the nature of a substitute shall be
considered as read. During consideration of the bill for
amendment,
[[Page H6857]]
the Chairman of the Committee of the Whole may accord
priority in recognition on the basis of whether the Member
offering an amendment has caused it to be printed in the
portion of the Congressional Record designated for that
purpose in clause 8 of rule XVIII. Amendments so printed
shall be considered as read. The Chairman of the Committee of
the Whole may: (1) postpone until a time during further
consideration in the Committee of the Whole a request for a
recorded vote on any amendment; and (2) reduce to five
minutes the minimum time for electronic voting on any
postponed question that follows another electronic vote
without intervening business, provided that the minimum time
for electronic voting on the first in any series of questions
shall be 15 minutes. At the conclusion of consideration of
the bill for amendment the Committee shall rise and report
the bill to the House with such amendments as may have been
adopted. Any Member may demand a separate vote in the House
on any amendment adopted in the Committee of the Whole to the
bill or to the committee amendment in the nature of a
substitute. The previous question shall be considered as
ordered on the bill and amendments thereto to final passage
without intervening motion except one motion to recommit with
or without instructions.
The SPEAKER pro tempore (Mr. Hansen). The gentleman from Florida (Mr.
Goss) is recognized for one hour.
Mr. GOSS. Mr. Speaker, for the purpose of debate only, I yield the
customary 30 minutes to the distinguished gentleman from the
Commonwealth of Massachusetts (Mr. Moakley), my friend and colleague,
pending which I yield myself such time as I may consume. During
consideration of this resolution, all time yielded is for the purposes
of debate only.
Mr. Speaker, this is a fair rule. It provides for adequate and
appropriate consideration of H.R. 2031, the Twenty-First Amendment
Enforcement Act. It is a modified open rule that will accommodate
Member interests in the amendment process while keeping us on track to
meet our Friday deadline for August recess, a deadline that many
Members, including the minority leader, have urged the Speaker, in
writing, to keep.
While the lack of time may argue for a more closed structure, the
Committee on Rules has erred on the side of openness and provided an
open rule with a 2-hour limit on amendments. Of course, the rule also
provides for a motion to recommit, with or without instructions.
Introduced by my colleague, the gentleman from Florida (Mr.
Scarborough), H.R. 2031 was reported favorably by the Committee on the
Judiciary on July 20 by voice vote. I understand that while hearings
were not held in this Congress, the Subcommittee on Courts and
Intellectual Property did convene hearings in the 105th Congress on
nearly an identical bill.
I would like to commend the gentleman from Florida (Mr. Scarborough)
for his continued efforts on behalf of American children, particularly
when it comes to the tricky business of alcohol access. It is clearly a
difficult question to resolve. However, it is encouraging to see the
major players, the beer and wine distributors, as well as the vintners,
the growers, fully engaged in the deliberative process.
Mr. Speaker, while the underlying legislation may engender some
debate, this rule should receive unanimous support. It is certainly an
open and fair rule.
Mr. Speaker, I reserve the balance of my time.
Mr. MOAKLEY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I thank my dear friend, the gentleman from Florida (Mr.
Goss), for yielding me the customary half-hour.
Mr. Speaker, as most people know, the Twenty-First Amendment to the
Constitution ended prohibition. It also bestowed upon the States the
authority to write their own liquor laws. The problem, Mr. Speaker, is
there is no interstate enforcement mechanism. The way the law is
written, States have virtually no way to enforce the liquor laws when
they are violated by distributors in other States, especially now that
there are so many ways to buy alcohol.
People can call a 1-800 number, they can order over the Internet,
they can do all sorts of things to buy alcohol, and with the limited
judicial options available to them now, State attorneys general are
having a very hard time making sure that people abide by the law.
This bill will give the State attorneys general another option. If
they believe someone is in violation of their State's liquor laws, this
bill will enable them to file suit in Federal Court to get them to
stop. It says you cannot ship alcohol into a State in violation of that
State's liquor laws. It is that simple.
It is not a new Federal law, it is not a new State law, it is not a
threat to anyone who sells alcohol legally. It is just a way for State
attorneys general to get people who sell alcohol illegally to stop.
Mr. Speaker, in my home State of Massachusetts, Massachusetts is
considered a limited personal importation State. We allow Massachusetts
residents to buy alcohol from outside of Massachusetts but only for
their own consumption and only in limited quantities.
The Commonwealth of Massachusetts determined how alcohol could cross
its borders. If a liquor distributor outside of Massachusetts breaks
that law, our attorney general should be able to get them to stop.
This bill will help stop the illegal interstate shipments of alcohol
by giving State attorneys general the power to enforce State laws. In
particular, Mr. Speaker, it takes us a step closer to stopping the sale
of alcohol to minors over the Internet. But I still believe we can do
more to stop underage drinking, especially underage drinking and
driving.
This is a good bill, and I urge my colleagues to support it.
Mr. Speaker, I have no further requests for time, and I yield back
the balance of my time.
Mr. GOSS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we have no requests for time, and I do not anticipate
any. Again, the purpose of this hour of debate is to discuss the rule,
which is an open and fair rule. I would prefer that we not engage in
the debate on the substance of the bill until we get to the time
carefully set aside. I have not encouraged any speakers to come
forward.
Mr. Speaker, I have no further requests for time, I yield back the
balance of my time, and I move the previous questions on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
The SPEAKER pro tempore (Mr. Goss). Pursuant to House Resolution 272
and rule XVIII, the Chair declares the House in the Committee of the
Whole House on the State of the Union for the consideration of the
bill, H.R. 2031.
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In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 2031) to provide for injunctive relief in Federal district court
to enforce State laws relating to the interstate transportation of
intoxicating liquor, with Mr. Hansen in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered as having
been read the first time.
Under the rule, the gentleman from Florida (Mr. Scarborough) and the
gentleman from Massachusetts (Mr. Delahunt) each will control 30
minutes.
The Chair recognizes the gentleman from Florida (Mr. Scarborough).
Mr. SCARBOROUGH. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I would like to begin my testimony by reading Section 2
of the Twenty-First Amendment to the Constitution: ``The transportation
or importation into any State, Territory or possession of the United
States for delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.''
Mr. Chairman, the Twenty-First Amendment's import is clear. States
have been given the right to stop interstate bootlegging. This right
was reaffirmed by Congress in the Webb-Kenyon Act 65 years ago, by 6
decades of Supreme Court case law, and by subsequent Congressional
acts. Yet, today, some modern-day bootleggers still seek refuge from
the Twenty-First Amendment.
[[Page H6858]]
They seek to avoid State laws and constitutional amendments so they
can sell their liquor more profitably than small businesses who dare to
play by the rules. Bootleggers sell liquors to minors over the
Internet, again avoiding State laws given preeminence by the Twenty-
First Amendment.
Shamed by the countless media stories detailing how young children
are buying liquor from these modern-day bootleggers over the Internet,
they have shrugged off such media stories, calling them nothing more
than stings by their economic enemies. But the only sting here comes
from the harsh reality that too many young children can buy alcohol
over the Internet.
Selling liquor to minors, or anyone, illegally, is simply wrong. It
is bootlegging, and bootlegging is not protected by the commerce
clause. Bootlegging is not cleansed by full page ads or media campaigns
or by hiring public relations firms. You can dress it stylistically,
but, in the end, just like Fitzgerald's Jay Gatsby, a bootlegger is a
bootlegger.
Mr. Speaker, our bill allows States simply to protect themselves from
illegal alcohol sales. It also allows States to protect children, like
my 11- and 8-year-old boys, from interstate bootleggers over the
Internet, and it allows States to enforce the laws that they passed
because of direction given them by the Twenty-First Amendment.
With that in mind, this bill allows State attorneys general to seek
injunctive relief in Federal court to stop illegal direct shipments of
alcohol into their respective States. Nothing more, nothing less. This
bill only affects those people who break liquor laws.
Now, you will have people coming up here today, saying some of these
laws are not fair and saying some of these laws do not allow wineries
to sell to this State or that State.
The bottom line is if you do not break the law, then this bill will
not apply to you. If you play by the rules, you have nothing to worry
about. Yet we are going to have red herrings piled high on this floor
today, like we had in the Committee on the Judiciary. Opponents will
distract. They will talk about fairness. They will talk about the
commerce clause. They will talk about the Internet, trying to claim
that this bill will destroy E-commerce in the 21st Century.
And get, the only E-commerce this will destroy in the 21st Century is
illegal E-commerce. You can make the same arguments if you want to
import pot from Amsterdam and say nobody can stop me from importing pot
from Amsterdam, because doing so will compromise the future of E-
commerce.
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That is laughable. If someone imports wine or alcohol legally, our
bill is inapplicable. If they do it illegally, then all this does is
allow States Attorneys General to bring the person to court, to get
injunctive relief to stop illegal shipments.
Some people do not like that. They say it will destroy some wineries
in California. We are going to have a lot of people from California
talking today on the floor, talking about how small wineries are going
to be destroyed.
Let me tell the Members something, small wineries will only be
destroyed if small wineries' existence depends on the illegal sale of
alcohol to minors and adults.
What needs to be understood is that this narrowly focused bill
assures States that they have a course of action against bootleggers.
They need to enforce their own alcohol laws to control out-of-State
companies, many of whom have shown no interest in preventing the sales
of alcohol to minors.
It would make clear that States have the right once again, under
Webb-Kenyon that was passed 60 years ago, under the 21st amendment that
was passed 56 years ago, under existing Supreme Court case law that has
been ruled on over the past six decades, it will simply allow them to
enforce these laws in the Constitution, and to use Federal courts to
enforce their laws against individuals, against modern-day bootleggers
who are illegally shipping alcohol products into States from other
jurisdictions.
These direct shipments bypass a key part of the States' control
method, the face-to-face transaction, in order to sell their products
at the highest possible profit margin.
This new black market in alcohol is dangerous. It is dangerous
because, if left unchecked, it will ultimately frustrate the ability of
States to regulate and control the shipment of alcoholic products, a
responsibility mandated under the 21st amendment to the Constitution.
It will also cut off their regulation, it will cut off any fees they
collect, it will cut off tax revenue that States depend on to regulate
alcohol inside their own border. That is the way we have set this up.
That is the way we have set it up.
Mr. Speaker, it is very important today to ask those coming to the
floor and opposing this bill, to ask the simple question: How does the
bill affect people that play by the rules, that abide by the law, and
that understand the Constitution and the constitutional amendments?
I think if we ask those direct questions, we will understand that
this is something that needs to be passed to stop illegal interstate
bootlegging, and to protect not only minors but to protect everybody
from the scourge of illegal alcohol shipping across State lines.
Mr. Chairman, I reserve the balance of my time.
Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I rise in support of the bill. As my friend, the
gentleman from Florida (Mr. Scarborough) indicated, this bill is very
simple, Mr. Chairman. It does nothing more than to confer upon a State
the right to go to Federal court to stop someone from outside the State
from violating its liquor laws. It is nothing more, it is nothing less.
It in no way changes substantive law at the State or Federal level.
The bill is necessary not only to prevent illegal shipments to
minors, but to enable States to police licensing standards, track
sales, and collect taxes on those sales.
Last year, illegal alcohol shipments cost States some $600 million in
lost revenues. State taxes on alcohol are an important source of
support for State programs, and protecting that funding stream is a
legitimate State objective.
Some who are opposed to this legislation argue that it would impede
the development of electronic commerce by taxing the Internet, or
chilling direct sales of wine and spirits over the Internet. Well,
whatever the merits of chilled wine are, Mr. Chairman, there is no
merit whatsoever to these arguments.
As my friend, the gentleman from Florida, pointed out, lawful sales
of alcohol over the Internet are thriving. Such online enterprises as
wineshopper.com, sendwine.com, and virtualvineyard.com, generated
hundreds of millions of dollars in lawful online sales last year alone.
Just last month, Geerlings & Wade of Massachusetts, which has
endorsed this bill and is the Nation's largest direct marketer of
wines, announced another new website called winebins.com, which will
sell thousands of labels in the 27 States in which the company is
operating, is licensed to operate. No doubt it will continue to add new
labels.
Let us be clear, the bill would impose no new taxes on any of these
electronic transactions, nor would it make them illegal. The State laws
we seek to defend were put into place to regulate alcohol sales after
the failure of Prohibition. In effect, they were the instrument by
which an illegal enterprise, bootlegging, was turned into a lawful and
regulated activity.
Some will argue that now these laws are an anachronism. Well, maybe
they are correct. Maybe there is a better way for States to protect
minors, track sales, ensure quality control, and to raise taxes. But
that is an argument better addressed by State legislatures, which have
the power to rewrite those laws. Until they do so, they have a right to
expect that the laws on the books will be enforced.
That is really what the legislation is all about. If we permit States
to pass laws but deny them a remedy when those laws are broken, we
encourage disrespect for the law. It is really that simple. That is why
attorneys general from across the country support this legislation.
I include for the Record, Mr. Chairman, letters of support from the
chief law enforcement officers of Alabama, Alaska, Arkansas, Colorado,
Georgia, Illinois, Indiana, Iowa, Kansas, Michigan, Montana, Nebraska,
Nevada, New
[[Page H6859]]
Hampshire, North Carolina, North Dakota, Oregon, Utah, Virginia, West
Virginia, Wyoming, and my own Commonwealth of Massachusetts.
The letters referred to are as follows:
Commonwealth of Virginia,
Office of the Attorney General,
Richmond, VA, July 29, 1999.
Hon. Lee Terry,
House of Representatives,
Washington, DC.
Dear Mr. Terry: As the chief law enforcement officers of
our respective states, we are pleased that on July 20 the
Judiciary Committee voted overwhelmingly in favor H.R. 2031,
the 21st Amendment Enforcement Act, and understand that the
House is expected to vote on this important legislation soon.
We are very concerned by media reports that opponents of
this common sense, law and order legislation are raising
superfluous issues and misrepresenting the facts in an effort
to defeat it, and would like to underscore the following
points:
This is not anti-Internet legislation. There is no language
or intent in the bill that could even be remotely construed
to impede lawful Internet commerce in wine or any other
consumer product. This bill does not even mention online
sales. H.R. 2031 merely seeks to stop illegal alcohol
distribution, regardless of how the order was placed--by
computer, toll-free number, or by mail.
We strongly support online commerce for all legal products
and want to encourage its growth to improve consumer choice
and convenience. This goal is actually harmed, however, by
those who distribute their products illegally. H.R. 2031
would not impose a burden on any manufacturer, wholesaler or
retailer of alcohol beverages that is operating lawfully. In
fact, it would still be possible to purchase alcohol over the
Internet and have it shipped to a licensed distributor, where
it could then be obtained.
This is a states' rights issue. The 21st Amendment
recognizes the right of each state to structure its laws
accordingly, and as law enforcement officials we have an
obligation to stand in strong opposition to businesses that
ignore them. We are not asking for any new federal laws
regarding the transportation or distribution of alcohol; we
are merely asking for the power to enforce our own state laws
already on the books.
None of us has a vested interest in the alcohol beverage
industry beyond making sure that our alcohol-related laws are
obeyed and that we have adequate enforcement authority. H.R.
2031 will give us access to federal courts, thereby
simplifying the legal process for prosecuting those who are
distributing in our states illegally.
Sincerely,
Mark L. Earley,
Attorney General of Virginia.
Bill Pryor,
Attorney General of Alabama
Bruce M. Botelho,
Attorney General of Alaska.
Mark Pryor,
Attorney General of Arkansas.
Ken Salazar,
Attorney General of Colorado.
Thurbert E. Baker,
Attorney General of Georgia.
Jim Ryan,
Attorney General of Illinois.
Jeffrey A. Modisett,
Attorney General of Indiana,
Tom Miller,
Attorney General of Iowa.
Carla J. Stovall,
Attorney General of Kansas.
Jennifer Granholm,
Attorney General of Michigan.
Joseph P. Mazurek,
Attorney General of Montana.
Don Stenberg,
Attorney General of Nebraska.
Frankie Sue Del Papa,
Attorney General of Nevada.
Philip T. McLaughlin,
Attorney General of New Hampshire.
Michael F. Easley,
Attorney General of North Carolina.
Heidi Heikamp,
Attorney General of North Dakota.
Hardy Myers,
Attorney General of Oregon.
Jan Graham,
Attorney General of Utah.
Darrell V. McGraw, Jr.,
Attorney General of West Virginia.
Gay Woodhouse,
Attorney General of Wyoming.
____
State of Michigan,
Department of Attorney General,
Detroit, MI, July 2, 1999.
Hon. John Conyers,
House of Representatives, Longworth House O.B., Washington,
DC.
Dear Congressman Conyers: I am writing to ask that you
support and co-sponsor H.R. 2031, a bill introduced by
Congressman Scarborough, which will give my office the
ability to better enforce our laws against underage access to
alcohol, excise and sales tax collection and other
restrictions on alcoholic beverage distribution and sale.
H.R. 2031 will allow states to file for federal court
injunctions against out-of-state wineries and retailers who
illegally bypass our state system and ship alcohol directly
to consumers. These clandestine shipments make it easier for
young people to obtain alcohol and make a mockery of our
other alcoholic beverage laws. Recent court decisions in Utah
and Florida make it clear that all states need this federal
court access to ensure their ability to enforce their
alcoholic beverage laws.
H.R. 2031 is common sense legislation that makes no change
in current state law and makes no restrictions on Internet or
catalogue sales. H.R. 2031 simply gives my office the tools
we need to take against out-so-state interests that bypass
our existing regulations and controls with immunity. As you
may know, H.R. 2031 may be brought to the House floor in the
next few days. I would appreciate your support of this bill.
Very truly yours,
Jennifer M. Granholm,
Attorney General.
____
Commonwealth of Virginia,
Office of the Attorney General,
Richmond, VA, June 14, 1999.
Hon. Dennis Hastert,
Office of the Speaker,
The Capitol, Washington, DC.
Dear Speaker Hastert: The Violent and Repeat Juvenile
Offender Accountability and Rehabilitation Act passed in the
U.S. Senate recently, and the U.S. House of Representatives
plans to vote on similar legislation next week. The
legislation contains an amendment to help stop the illegal
shipment of alcohol to minors and other violations of state
alcohol laws.
The amendment was first introduced last March as S. 577 by
Senator Orrin Hatch (R-UT) in response to dozens of
television station investigative reports showing how
teenagers can have alcohol sent directly to them by ordering
it through the mail, over the Internet, through toll-free
phone services, and by other means. The amendment was offered
to the juvenile justice bill by Senator Robert C. Byrd (D-WV)
and passed by an overwhelming 80-17 bipartisan vote.
The amendment gives state attorneys general access to
federal courts to seek injunctive relief against those who
are violating our state laws and shipping alcohol directly to
minors. States have difficulty detecting these illegal
shipments, which also evade our state tax systems. Because of
jurisdictional issues, prosecuting violators is a very
uncertain process in state courts. Access to federal courts
is needed to handle these cases expeditiously and in a manner
consistent with the alcohol laws and regulations in Virginia
and other states.
This amendment would not restrict legitimate commerce in
alcohol or any other product, or impose a burden on any
manufacturer, wholesaler or retailer of alcohol beverages
that is operating lawfully. As things now stand, those
companies that are doing business in a manner that respects
the law are at a competitive disadvantage to those who are
engaged in illegal tactics.
This amendment is not an attempt to change or revise any
alcohol law; rather, it would simply give attorneys general
the ability to enforce their state laws, whatever those laws
may be. If an individual or entity can flout our states'
alcohol laws without consequence, it erodes the very
integrity of our states' legislative authority.
In the fall of 1997, five Virginia college students died
due to binge drinking related accidents. In response, my
Office launched a statewide task force to address the subject
of college binge drinking. After speaking with students and
parents who have been affected by alcohol abuse, I have made
a personal commitment to fighting binge drinking among our
young people, and I am convinced that curbing the direct
shipment of alcohol to minors is an important part of that
effort.
Beyond college alcohol abuse, there are many other health
and safety issues related to underage drinking. These
concerns are shared by parents across the nation, in every
state of the union. Attorneys general must have the
enforcement tools needed to help combat this problem
I urge you to support this important amendment, H.R. 2031,
introduced by Congressmen Scarborough (R-FL), Delahunt (D-
MA), and Sensenbrenner (R-WI). It will give attorneys general
the option to use the federal court system for injunctive
relief to stop the direct shipment of alcohol to minors and
other violations of state law regarding the importation and
transportation of alcohol.
In addition to contacting my own state's Congressional
delegation in support of this amendment, I have written other
attorneys general encouraging them to do the same.
If anyone in your office has questions about this
legislation, they can call Jonathan Amacker in my officer at
804-786-4596. Thank you for your consideration of this
matter.
Sincerely,
Mark L. Earley,
Attorney General.
____
[[Page H6860]]
Commonwealth of Massachusetts,
Office of the Attorney General,
Boston, MA, July 15, 1999.
Senator Edward M. Kennedy,
Russell Senate Office Building,
Washington, DC.
Dear Ed Kennedy: I am writing to enlist your support for
H.R. 2031, a bill introduced by Congressmen Scarborough,
Delahunt, Sensenbrenner and Cannon, to provide State
Attorneys General with the ability to seek federal injunctive
relief against out-of-state alcohol beverage distributors
which ship alcohol directly to minors in contravention of
state laws and regulations.
Specifically, H.R. 2031 allows states to file for federal
injunction relief where the Attorney General has reasonable
cause to believe that an out-of-state entity is engaging in,
or about to engage in, an act that would constitute a
violation of a state law regulating the importation or
transportation of alcohol. Shipments by alcohol distributors
to minors provide our youth with the opportunity to obtain
alcohol in direct contravention of state laws. By giving
State Attorneys General access to federal courts to seek
injunctive relief against those who are violating our state
laws, we can hopefully prevent such direct shipment of
alcohol to minors.
This bill is important and will provide my office with the
tools we need to take action against out-of-state businesses
that bypass our existing laws and regulations, and in so
doing, jeopardize the health and welfare of our children. On
behalf of the citizens of the Commonwealth of Massachusetts,
particularly our young people, I ask for your vote of support
for this important legislation.
Sincerely,
Tom Reilly,
Attorney General.
____
State of Utah,
Office of the Attorney General,
Salt Lake City, UT, June 14, 1999.
Congressmember James V. Hansen,
House of Representatives, Rayburn Building, Washington, DC.
Dear Jim Hansen: I am writing to encourage you to support a
bill that will be voted upon this week. H.R. 2031, introduced
by Congressmen Scarborough, Delahunt, and Sensenbrenner,
contains an amendment to help stop the illegal shipment of
alcohol to minors and other violations of state alcohol law.
The amendment was first introduced last March by Senator
Hatch, days after Utah secured a significant ruling in the
Court of Appeals which asserted state jurisdiction of all
liquor sales that cause unlawful results in Utah and enables
the State to criminally prosecute businesses that violate
Utah's liquor laws.
Utah must have the authority to enforce its state laws
governing the sale and distribution of alcohol, and this
amendment does just that. By giving state attorneys general
access to federal courts to seek injunctive relief against
those who are violating our state laws, we can prevent the
direct shipment of alcohol to minors.
I hope you support this important piece of legislation; it
will enhance Utah's ability to enforce its laws and will
contribute greatly to the safety and welfare of Utah's
children.
Sincerely,
Jan Graham,
Attorney General.
____
Commonwealth of Pennsylvania,
Office of Attorney General,
Harrisburg, PA, June 29, 1999.
Hon. Arlen Specter,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Specter: I am writing to urge your support for
H.R. 2031, the proposed ``Twenty-First Amendment Enforcement
Act.'' This legislation, introduced by Congressmen
Scarborough (R-FL), Delahunt (D-MA) and Sonsenbrenner (R-WI),
will help prevent illegal shipments of alcohol to minors, and
the evasion of state tax laws.
The ``Twenty-First Amendment Enforcement Act'' would give
state attorneys general access to federal courts to seek
injunctive relief against individuals and businesses who
violate state liquor laws by shipping alcohol directly to
consumers. These transactions, usually completed over the
Internet, allow purchases to be made without adequate proof
of age, giving minors easy access to alcohol.
It is important to note that this measure will have no
impact on legitimate sales of alcoholic beverages by
manufacturers, wholesalers, or retailers who operate within
the parameters set by law. House Resolution 2031 merely gives
the states a better opportunity to enforce their current
liquor and tax laws.
The problem of underage drinking has been exacerbated by
the explosion of Internet liquor sales. Passage of H.R. 2031
would provide a valuable tool with which state attorneys
general can work to prevent the direct shipment of alcohol to
minors. Again, I urge you to support this important
legislation.
Very truly yours,
Mike Fisher,
Attorney General.
____
State of Nebraska,
Office of the Attorney General,
Lincoln, NE, June 17, 1999.
Congressman Bil Barrett,
Rayburn House Office Building,
Washington, DC.
Dear Congressman Barrett: H.R 2031 would give states access
to federal courts to enforce their laws against illegal,
direct shipping of alcoholic beverages. I urge you to support
this bill.
Illegal, direct shipping of alcoholic beverages into the
State of Nebraska undermines Nebraska's Liquor Control Act,
creates unfair competition for Nebraska liquor wholesalers
and retailers who are complying with the Liquor Control Act
and who are paying applicable taxes, and creates a risk of
alcohol shipment of under-age persons.
A copy of H.R. 2031 is enclosed for your quick reference.
As you can see it is a simple, common sense approach to a
rapidly growing problem.
Yours truly,
Don Stenberg,
Attorney General.
____
State of Kansas,
Office of the Attorney General,
Topeka, KS, June 15, 1999.
Hon. Jerry Moran,
House of Representatives, Longworth House O.B., Washington,
DC.
Dear Congressman Moran: I am writing to ask that your
support and co-sponsor H.R. 2031, a bill introduced by
Congressman Scarborough that will give my office the ability
to better enforce our laws against underage access to
alcohol, excise and sales tax collection and other
restrictions on alcoholic beverage distribution and sale.
H.R. 2031 will allow states to file for federal court
injunctions against out-of-state wineries and retailers who
illegally bypass our state system and ship alcohol directly
to consumers. These clandestine shipments make it easier for
young people to obtain alcohol and make a mockery of our
other alcoholic beverage laws. recent court decisions in Utah
and Florida make it clear that all states need this federal
court access to ensure their ability to enforce their
alcoholic beverage laws.
H.R. 2031 is common sense legislation that makes no change
in current state law and makes no restrictions on Internet or
catalogue sales. H.R. 2031 simply gives my office the tools
we need to take action against out-of-state interests that
bypass our existing regulations and controls with impunity.
As you may know, H.R. 2031 may be brought to the House floor
in the next few days. I would appreciate your prompt co-
sponsorship of this important legislation and your vote of
support if it should be offered as an amendment to the
Juvenile Justice bill.
Very truly yours,
Carla J. Stovall,
Attorney General.
Mr. DELAHUNT. Mr. Chairman, let us make no mistake, the online
bootleggers who evade State alcohol control laws are hopefully not the
future of electronic commerce. They are a throwback to a bygone era.
Let us embrace E commerce and do all we can to encourage it, but let
us do it in a manner that respects the rule of law.
Mr. Chairman, I reserve the balance of my time.
Mr. SCARBOROUGH. Mr. Chairman, I yield 1 minute to the gentleman from
Wisconsin (Mr. Sensenbrenner).
Mr. SENSENBRENNER. Mr. Chairman, this legislation will allow State
Attorneys General to seek Federal court injunctions against any out-of-
State companies that illegally direct ship alcohol to consumers. These
illegal direct shippers are bypassing State excise and sales taxes,
operating without required licenses, and most appallingly, illegally
selling alcohol to underage persons.
It is important to note what H.R. 2031 does not do. It does not
change existing State laws, and makes no restrictions on legal Internet
or catalog sales. It does not open the door to Internet taxation. In
fact, the word ``Internet'' does not appear anywhere in the text. It
does not create a new Internet E commerce policy. It only deals with
direct shipments of alcohol.
The legislation has bipartisan support. It was adopted overwhelmingly
as an amendment to the other body's juvenile justice bill. Attorneys
General from 23 States have signed a letter of support on this bill.
Mr. Chairman, I rise in support of States' rights, and urge my
colleagues to allow States to enforce their own alcohol laws by voting
in favor of this much needed legislation.
Mr. DELAHUNT. Mr. Chairman, I yield 2 minutes to the gentleman from
Florida (Mr. Deutsch).
Mr. DEUTSCH. Mr. Chairman, I rise in support of H.R. 2031, the 21st
Amendment Enforcement Act. The rational for this bill is simple and
straightforward. State laws governing alcohol shipping and distribution
must be followed and enforced. This bill ensures that States have the
tools needed to fully enforce their laws, especially those governing
the distribution of alcohol to minors.
This bill will ensure that States have legal recourse against alcohol
distributors who deliberately seek to violate State laws. Any vintner,
retailer, or
[[Page H6861]]
marketer who ships alcohol to adults in compliance with laws governing
the shipments's destination should support this legislation. H.R. 2031
will simply allow States to take legal action in Federal courts against
illegal business practices which often jeopardize the welfare of
children.
Just as law enforcement officials need the proper tools to fight
crime, and drug enforcement officials need the proper tools to fight
the war on drugs, liquor enforcement officials need the tools to
enforce State liquor laws. These laws keep alcohol out of the hands of
minors, and ensure that consumers receive safe products from people who
sell these products.
I urge my colleagues to support the 21st Amendment Enforcement Act.
I would just quickly add that I served 10 years in the Florida
legislature, Mr. Chairman, and was involved in legislating areas of
enforcement of the structure that Florida has for alcohol sales in
Florida.
What is going on today, I do not think there will be any speaker here
today who would question it, is absolutely in violation not just of
Florida laws, but laws in the 50 States and the District of Columbia.
Essentially, people have created a way to evade systems that
legislatures have in place for the sale of alcoholic beverage, which
are different in the 50 States, but these systems literally violate
those laws in the 50 States and the District of Columbia.
Again, it has been made clear that this is not against E commerce in
any way, but in fact what the Internet has done is allow a new way of
bootlegging. I, as one of many millions, tens of millions of Americans,
have purchased products through the Internet. I encourage that.
But as I sat with my son, and my son, who is 8 years old, has the
ability, he remembers credit card numbers and access numbers pretty
well, and has the ability today or tomorrow to, in his own way,
perhaps, purchase things through the Internet. Obviously, that is not
what we want to see happen. On top of that, there are legal ways to
purchase these products through the Internet today.
Again, I urge my colleagues to close a loophole. This is not an issue
of trying to stop commerce on the Internet, it is an issue of
enforcement of State liquor laws which have existed in the 50 States,
with a great deal of authority for that enforcement.
Mr. SCARBOROUGH. Mr. Chairman, I yield 3 minutes to the gentleman
from Georgia (Mr. Barr).
Mr. BARR of Georgia. Mr. Chairman, I thank the gentleman from Florida
for yielding time to me, and I thank the gentleman from Massachusetts
and the gentleman from Florida for their leadership on this very
important issue.
Mr. Chairman, as the previous speaker from Florida said, this is an
issue about States' rights. It is not anti-commerce, it is not anti-
free enterprise. What we must keep in mind is that there are legitimate
areas where States have carved out the responsibility in support of
their constituents to regulate certain types of activity, whether it be
illicit drugs or sale of alcohol to minors.
We must constantly try and balance the rights of States, the powers
of States, to exercise legitimate supervision in those particular areas
which, if not properly supervised, would be harmful to the citizens of
that State against what we all here believe in, and that is free
enterprise and the capitalist system.
But we must ask ourselves, in that regard, at what price is free
enterprise allowed to reign? We have witnessed in recent weeks
tremendous damage to our national security, information on that damage
coming forward, where secrets and very important military national
security information was disclosed and made available to China,
including information made available to China by companies seeking to
exercise so-called free enterprise.
{time} 1200
Free enterprise does not mean that corporations and companies in
America can do whatever they want whenever they want with whom they
want. They have to act responsibly, and they have to subject themselves
to legitimate exercises of State authority.
The sale of alcohol to minors in particular States, and other laws
within those States regarding the regulation of the sale of alcoholic
beverages, is a long-standing authority recognized by the courts and by
this Congress. As a matter of fact, in the Constitution itself, as the
gentleman from Florida (Mr. Scarborough) indicated, is a legitimate
area where there are going to be placed and have been placed some
restrictions.
But that power is hollow if, in fact, companies are allowed, as they
are doing now, to circumvent State law by Internet sales of alcohol in
circumvention of and derogation of and flouting State laws.
This legislation that the gentleman from Florida has proposed,
supported by the gentleman from Massachusetts, mandates nothing. It
simply empowers those States who wish to exercise the power through
their attorneys general, duly elected by the people of the several
States, to enforce laws against the sale of alcoholic beverages in
their State which are in violation of State laws. It does nothing more.
It does nothing less.
We hope to keep the debate focused, Mr. Chairman, with regard to
amendments that might be opposed on that fundamental power of States'
rights.
One certainly will see, as amendments are proposed, we suspect that
it is commercial interests that are behind the amendments. Again, while
all of us are very, very strong proponents of free enterprise, we also
are proponents of States rights and to protect American families.
In an age where we are seeing far too much youth violence, for
example, Mr. Chairman, I think we need to be especially mindful that
our families all across America need to be empowered and need to be
able to rely on the legitimate authorities that they have elected in
their States, such as the attorneys general, to protect their children
in those legitimate areas where State exercise of authority can,
indeed, do so in regulation of alcohol; and sales of alcoholic
beverages is one such area.
We must enact this legislation. It is a very specific, very narrow,
very limited response to a problem that has developed in recent years
that is a very real problem. Again, to emphasize Mr. Chairman, while we
are in favor of Internet sales, we are in favor of commerce generally
between the States, this is a legitimate area long recognized by the
Congress, by the courts, and by the legislatures of the several States
for State regulation.
In order for that State regulation to be meaningful, the State
attorneys general must have the power to enforce the interstate sale of
alcoholic beverages in derogation of State laws. I urge support of this
bill.
Mr. DELAHUNT. Mr. Chairman, I yield as much time as he may consume to
the distinguished gentleman from California (Mr. Thompson).
Mr. THOMPSON of California. Mr. Speaker, it is unfortunate that this
bill is on the floor today. This bill is no more than an attempt to
advantage one industry group over another. It comes at a time when we
should be working to find a solution to the problem, the problem of
consumers not having access to the wines of their choice because
distributors are unable to service the growth in small wineries.
In 1963, there were 375 wineries. Today, in 1999, there are 2,000
wineries. In 1963, we had 10,900 distributors. Today, we have 300
distributors. This is the problem. This is why small wineries and
consumers who want to buy premium wine from small wineries are looking
for other available places in order to purchase it.
There is an Amador Foothill grower in California that was interviewed
by the press; and he said, ``A lot of large distributors look on
wineries of our size as a nuisance. They cannot sell much of our wine.
And the larger wineries are banking on them to sell 10 percent more
each year, so they do not have time to sell small premium wines.''
That is the problem. This problem is not about kids buying wine in
cyberspace. As a matter of fact, that argument does not even pass the
giggle test. The fact of the matter is, teenage kids across this Nation
are not going to be purchasing premium Cabernet wine from my district,
from anywhere from $40 to $150 a bottle.
Everyone has been able to see through this clever cover. As a matter
of fact, two of the original supporters of this idea, the Mothers
Against
[[Page H6862]]
Drunk Driving and the Emergency Room Nurses have withdrawn their
support. The Mothers Against Drunk Driving stated that, in fact, this
is a battle between various elements within the alcohol beverage
industry. They go on to say that they are dismayed that the industry
would go this far or go to such lengths to misrepresent their views.
Even the National Council on State legislatures is opposed to this
measure. They have been working on this issue for the past couple of
years, and they see some progress being made. Last week, they voted 41
to 7 in opposition to this legislation. They, too, understand it is a
turf issue and have asked this Congress not to interfere.
The Wall Street Journal just editorialized against this, citing it as
``an obstacle to interstate commerce of precisely the type the Founders
intended to prohibit.'' The Journal goes on to say and to warn that
``Today wine; tomorrow any out-of-State competition that some local
interest with campaign money did not want to deal with.''
I also want to point out that this bill deals with all liquor
violations, not just the ones that were mentioned by the supporters of
the bill.
Attorneys General across this Nation could take all and any liquor
violation regarding importation and transportation to the Federal
courts. This is true even in States that allow direct shipment of wine.
Oklahoma, for example, has a limited personal importation. However,
they disallow any transaction on Memorial Day, Labor Day, or Election
Day. So if one transports an alcoholic beverage in Oklahoma on the day
of a special election to pass a school bond, one could find oneself in
Federal court.
Wyoming has a law that prohibits the sale of private labeled wines.
So if one sells or transports private labeled wines in Wyoming, it
could be Federal court.
Now, the supporters will tell us that this is farfetched; that an
Attorney General would not do that. I want to tell my colleagues that
it is no more farfetched than the supporters' claims that kids are
buying high-priced premium wine over the Internet.
Most troubling, Mr. Chairman, is the fact that one of the coauthors
of this bill has informed me that small wineries and consumers are not
going to be disenfranchised because, in the end, the distributors will
go online and sell online themselves.
I cannot understand why direct sales can be harmful to one industry,
the small wineries, but then be good in their eyes for the distributors
who are trying to sell these wines.
Finally, I want to point out that this bill has had no public input.
It was rushed to the floor. It was a markup in the Committee on the
Judiciary. The public has not been able to speak. Small wineries have
not been able to speak. Consumers have not been able to speak. That is
particularly troubling, given the long list of amendments that we are
looking at today on the bill.
One of the amendments, I understand, is going to provide immunity for
Internet service providers. What does this mean, that Yahoo can go
online and sell direct in States that prohibit the direct sale of
alcoholic beverages? I think this is a huge loophole, and it is one
that the supporters of this bill were not counting on.
There was also a great deal of discussion about the loss of tax
revenue. I can tell my colleagues that, without an analysis of this
bill, I do not know how one can ascertain what the impact, the economic
impact of this bill would be one way or the other.
I also want to point out that there are a couple of local laws that
could end up landing their constituents in Federal court. Indiana
allows a person to bring one bottle of wine home per trip every time
they come back to Indiana. If one brings back two bottles of wine, it
could be Federal court.
Maryland allows one bottle at a time, but not more than two bottles
per calendar month. What if someone visits the Virginia wine country
three times over the course of the month and brings back three bottles
of wine? They are subject to Federal court.
Right here in D.C., you can bring back four bottles of wine. If one
visits Virginia wine country or my district in California, and one
comes back with a six-pack of premium wine, the little six-pack
containers that are so common for people to carry on the airplanes, one
can be in violation of this district's laws, and one can be prosecuted
in Federal court.
Mr. Chairman, this bill should be defeated, and this issue should be
left up to the States to decide without the heavy hand of the Federal
Government's interference.
Mr. SCARBOROUGH. Mr. Chairman, I yield myself 3 minutes.
Mr. Chairman, I would just like to ask if the gentleman from
California (Mr. Thompson) would be open to a few questions about some
statements he made.
The gentleman from California criticized selected State laws.
Mr. THOMPSON of California. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from California.
Mr. THOMPSON of California. Mr. Chairman, I have not criticized any
State laws. I am just pointing out that this measure could put
violation of something, of a law such as the Oklahoma measure that
allows transportation of an alcoholic beverage product, into Federal
court. I do not think that is what the gentleman's intention is.
I do not think it is the intention of the gentleman's supporters
that, if the Internet service provider does direct sales, that they
could sell wine in Florida, which makes it a felony to directly ship to
Florida. It is completely at odds with the State law that you claim
that the gentleman is trying to protect.
Mr. SCARBOROUGH. Mr. Chairman, reclaiming my time for a question, I
need to ask the gentleman from California this question. Does the
gentleman from California understand that all this provides is Federal
injunctive relief for attorneys general towards businesses that
continually ship in alcohol illegally; since it provides for injunctive
relief, nobody is going to be thrown into Federal court and then thrown
into prison? Does the gentleman understand that?
Mr. THOMPSON of California. Mr. Chairman, I understand that. I also
understand that the Federal court is not the place to determine how
much wine one can bring back if one decides to go to the vineyards of
Virginia over the course of a weekend that one spends here in D.C.
Mr. SCARBOROUGH. Mr. Chairman, I think the gentleman said it is his
position that minors are not purchasing alcohol over the Internet. Is
that the gentleman's position?
Mr. THOMPSON of California. Mr. Chairman, I think it is a clever
cover for what the gentleman from Florida is trying to do, and that is
advantage one industry player. I believe that the gentleman was privy
to the same tape that I saw in Mr. Hatch's committee hearing that
showed a 14-year-old girl accessing the Internet, trying to buy an
alcoholic beverage. But the thing that was not talked much about in
that hearing was the fact that her older brother or father was standing
right there next to the television camera operator and filming this
using his credit card. It is a far stretch from leading us to believe
that some youngster is going to plan weeks ahead to purchase some
alcoholic beverage and, in the case that impacts my district, a bottle
of Cabernet.
I do not think the teenagers of the gentleman from Florida (Mr.
Scarborough) are going to buy Opus Cabernet over the Internet with
their parents' credit card.
Mr. SCARBOROUGH. Mr. Chairman, reclaiming my time, if they did try to
use my credit card, it would not go through for the type of wine that
the gentleman sells in his district.
Mr. SCARBOROUGH. Mr. Chairman, I yield 2 minutes to the gentleman
from Georgia (Mr. Barr).
Mr. BARR of Georgia. Mr. Chairman, one might ask the opponents of
this very measured legislation why they think the International
Association of Chiefs of Police is endorsing it. The International
Association of Chiefs of Police certainly has no problem with the
legitimate sale of alcohol. They are not beholden to the wine industry,
large or small. They are not beholden to the beer industry, large or
microbrew. Yet, they are very strongly in support of this legislation.
The reason they are very strongly in support of this legislation is
they
[[Page H6863]]
know, as I suspect the opponents do also but will not admit it, that
there are in fact numerous documented instances of minors purchasing
alcoholic beverages over the Internet. For anybody to claim otherwise,
they are simply misleading this debate or cannot make that argument
with a straight face.
There is a case, a documented case just recently reported in Alabama,
of a 17-year-old boy able to buy alcoholic beverages over the Internet
according to some plan where they will send it periodically, once a
month.
There is also, documented through Americans for Responsible Alcohol
Access, a documentary that shows teenagers in various States, including
Mississippi, buying alcoholic beverages.
Also for the opponents of this very measured legislation, also to
make the speechless argument that there has been no public input, that
is absolutely wrong. There have been debates on this issue in the
Congress. There have been hearings on this, two hearings. This passed
overwhelmingly in the United States Senate. Every one of those Senators
who voted in support of this, I would presume maybe the opponents of
this measured bill know otherwise, but I would certainly presume that
those Senators were speaking for their constituents, the citizens of
the State.
{time} 1215
So there are plenty of documented instances of minors using the
internet in violation of State law to purchase or receive alcoholic
beverages.
Mr. Chairman, this is a very measured response to a real problem. I
urge support of the legislation.
Mr. DELAHUNT. Mr. Chairman, I yield 5 minutes to the gentlewoman from
California (Ms. Woolsey).
(Ms. WOOLSEY asked and was given permission to revise and extend her
remarks.)
Ms. WOOLSEY. Mr. Chairman, I rise in strong opposition to this
legislation that would criminalize the efforts of the small wineries in
my district in responding to their consumers.
This bill is a wolf in sheep's clothing. It is not about State's
rights, it is not about combating the problem of underage drinking.
Instead, this bill is about wholesalers and distributors that do not
want small wineries to move into their turf.
Make no mistake, I firmly believe that we have a national obligation
to take care of our children and protect them from threats to their
health and safety. Nobody speaks more to that than I do. Too many young
people are starting to drink at an early age leading to alcohol and
other substance abuse problems. That is why I have fought so strongly
in this Congress to support the passage of zero tolerance legislation
for underage drinking and driving.
But this legislation does not address that pressing issue. In fact,
Mothers Against Drunk Driving, MADD, will not even endorse this bill.
That is because they recognize this bill for what it is: A power grab
by wholesalers and distributors.
This power grab involves a 65-year-old regulatory scheme that grew
out of prohibition and stands on three legs: Politics, policy, and
profits. Through the three-tier system, manufacturers are required to
sell their beer, wine, and liquor to licensed wholesalers who are the
sole suppliers for stores, bars and restaurants, sports arenas, and
other retailers. They have got it all tied up and they do not want to
give any of that up.
But guess what, this distribution system does not work for consumers
who want to access hard-to-find good wines from small wineries. The
wineries in my district in Sonoma and Marin Counties, just north of the
Golden Gate Bridge, produce some of the world's finest wines, and we
will have to say Napa too, because that is where my colleague, the
gentleman from California (Mr. Thompson) is from, but many of them
cannot get their products to markets the traditional ways.
Wholesalers and distributors will not carry their products because
the wineries are not big enough. These winemakers now are joining the
point-and-click-world of Internet commerce to get their products
directly to the consumers. So, do not inhibit their ability to sell
their product.
At another time support efforts to ensure that children and teenagers
do not buy alcoholic beverages, but today is not the day to address
that. Vote against H.R. 2031.
Mr. SCARBOROUGH. Mr. Chairman, I yield myself 4 minutes.
The statement has been made that alcohol sales to minors over the
internet is not a real problem. In fact, one individual stood up and
said that I was clever in using this as a front. I thank him for
calling me clever, but I am not clever enough to have about 30 news
stations across the country running stories specifically on minors
purchasing alcohol over the Internet.
WBRC-TV in Birmingham; WIAT-TV in Birmingham; KPMO in Phoenix,
Arizona; KEYT-ABC in Santa Barbara; WUSA-CBS in Washington; WPEC in
West Palm Beach; WPLG in Miami; WWSB in Sarasota, Florida; WICS in
Springfield, Illinois, a three-part series; WEVV-TV in Evansville,
Indiana, a two-part series; WBFF in Baltimore; stations also in Boston;
Lansing, Michigan; Greenville, Mississippi; Syracuse, New York;
Charlotte, North Carolina; Columbus, Ohio; Cleveland, Ohio; Oklahoma
City; Philadelphia; Lancaster, Pennsylvania; Pittsburgh, Pennsylvania;
Providence, Rhode Island; Spartanburg, South Carolina; Amarillo, Texas,
a three-part series; San Antonio; Salt Lake City; Norfolk; Seattle;
Green Bay; WISC, Wisconsin; WMTV, Wisconsin; CNN Morning News, Hard
Copy; NWCN-TV cable news in Seattle; and ZDTV cable news have all done
stories on illegal sales of alcohol to minors over the Internet.
While I thank the gentleman for saying I am clever and suggesting
that I would be resourceful enough to set up such a media explosion on
this happening from coast to coast, but regretfully I would have to
disagree with the gentleman and say I am not quite that clever.
Also, regarding the question of no public input, I sat through the
Committee on the Judiciary hearings and can report we heard all the
input we could get for about 6 or 7 hours. There have been 2 other days
and two other committee hearings over the past several years where this
issue has been debated over and over and over again.
In the end, again, all it comes down to is the fact that there are
some people that want to allow small businesses to sell wine illegally
over the Internet. I want to be able to have my rich Republican
supporters to be able to purchase the finest wine from Napa valley, or
purchase the finest wine from Sausalito, a beautiful region I recently
visited. I have nothing against that. It just has to be legal.
And it does not matter how small the winery is, it does not matter
how fine the wine is, it does not matter how strong these businesses
may support my colleagues in their districts, or how strong my wine
lovers in my district may support me. If it is illegal, it is illegal.
If it is bootlegging, it is bootlegging. The only thing this bill does
is stop the illegal shipment of alcohol into States, and it does it by
allowing the State's attorney general to file an injunction. Nothing
more, nothing less.
Mr. Chairman, I reserve the balance of my time.
Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may consume
to concur with my friend from Florida. I too want my middle class
Democrats to have availability on the Internet to purchase the wines
out in Sausalito, California.
Mr. Chairman, I yield 2 minutes to the gentleman from New York (Mr.
Rangel).
(Mr. RANGEL asked and was given permission to revise and extend his
remarks.)
Mr. RANGEL. Mr. Chairman, I would have to agree that the gentleman
from Florida is clever, and I do hope we can use his ingenuity as
relates to the interstate sale of guns. Because, clearly, we ought to
have as much concern about these dangerous weapons as we do about our
children consuming wine.
Now, in the old days, when I was a kid, kids did not wait 2, 3, 4
days in order to get wine. They used to get outside the liquor store
and get someone to go there and buy wine for them. So if they are
clever enough to use the Internet to do it, I do not really think that
this law is going to catch too many of them.
It seems to me, coming from a State that has wineries, that we have a
major problem here, and that is whether or not some of my Republican
friends want to throw the baby out
[[Page H6864]]
with the bathwater. We want to be able to have as much competition in
this great Republic of ours that we can. I do not think it can be
challenged that we have some 1700 small wineries that are unable to
penetrate the larger distributors that we have in this country. They
have fine products, but they do not have the money and the know-how to
get it into the stores.
Finally, technology has given them the opportunity to break through
these barriers and to be able to sell their products, subject to State
law. Now, we know that one of the things that Congress wants to do is
to get government out of the lives of people, especially the Federal
Government, and we do not have a lot of attorneys general pleading,
knocking down our doors and saying, for God's sake come in here and
provide oversight for us.
If we are going to start doing this with wine, there is no reason why
we do not start controlling competition in books and recordings and in
clothing, and taking away the very same technology that is pumping up
our economy and allowing people to be able to get their wares to the
marketplace.
Mr. SCARBOROUGH. Mr. Chairman, I yield myself 30 seconds just to
respond.
There is a big difference between books and liquor. Amazon.com can
still continue to sell books. There is nothing in the Constitution
regarding the importance of books. There is nothing in the Constitution
regarding sweaters from J. Crew. There is something in the Constitution
regarding the twenty-First Amendment, which says it is going to be the
province of the States to regulate alcohol sales. So there is a big
difference.
Regarding guns, guns can also be shipped, they just have to be
shipped legally.
Mr. Chairman, I yield 3 minutes to the gentleman from California (Mr.
Radanovich). We violently disagree on this issue, but he is a good
friend, nonetheless.
(Mr. RADANOVICH asked and was given permission to revise and extend
his remarks.)
Mr. RADANOVICH. Mr. Chairman, I thank the gentleman for yielding me
this time on this issue, even though I oppose this legislation.
I am not a lawyer, I am a small winery owner. I am one of more than
2,000 wineries in about 47 States, however, only 50 wines are available
in a typical retail marketplace. More specifically, about 20 wineries
produce 90 percent of all the wine produced. Despite this, sales of
regional or limited availability of wine, of which there are perhaps
over 10,000 labels, have grown. Unfortunately, at the same time the
traditional distribution avenues have decreased from over 20,000
wholesalers to fewer than 400.
These wholesalers are not sufficient to handle the shipment and
delivery of wines from numerous small producers. Direct mail and the
Internet, on the other hand, have helped these small wineries stay
afloat, while at the same time helping to satisfy a growing consumer
demand for smaller, lesser-known wines produced in this country.
The reason H.R. 2031 is proposed is to stop these alternative avenues
to market in favor of existing monopolistic wholesalers. The Twenty-
First Amendment to the Constitution is not an absolute divestment of
Federal power of the States. The U.S. Supreme Court has long
established that the amendment has its limits and must be considered in
the context of the constitutional provisions, including Congress'
exclusive right to regulate interstate commerce.
Proponents of this legislation claim that it is necessary to curb the
delivery of alcohol products to underage purchasers. I believe that
there are few more important causes than to stem the tide of underage
drinking in this country, however, I am convinced that direct shipment
of wine, beer, and spirits does not contribute to the problem.
The two States with the highest consumption of wines, California and
New York, have long permitted interstate shipments over the phone or by
mail. Surely if these mechanisms were inherently open to abuse, the
authorities in those States would have discovered that by now, but they
have not.
I am sure we can all remember when we were kids, when we were
teenagers in high school and we stole our dad's credit card to order a
$200 case of premium wine over the phone to have parties with our
friends 30 days down the line. And in the meantime, 38 percent of those
kids who go into retail stores in the District of Columbia to purchase
beer over the counter succeed. So my advice to those that are so
concerned about underage purchasers is to focus their direction where
the problem really is. The issue is not an issue under this piece of
legislation.
The National Conference of State Legislatures recently passed a
resolution that opposed legislation which allowed Federal interference
in the purchase and delivery of wine across State borders. Forty-one
States joined in the passing of the resolution, with only 7 States
supporting this attempt to Federalize the laws. The Federal Government
should not empower States to engage in this kind of activity. This is
monopoly protection at its best. And even those wineries can ship into
approximately 12 States now, they will, through the support of the
attorneys general, limit that as well.
I am a California farmer. In 1982, I established a small vineyard and
winery in the Sierra foothill community of Mariposa, my hometown. The
Radanovich Winery, which produces Sauvignon blanc, Chardonnay, Merlot,
Zinfandel and Cabernet Sauvignon, has grown to over 4,000 cases
annually.
Like most wineries, mine is small. Of the more than 2,000 wineries in
this country, only 50 are available in a typical retail marketplace.
More specifically, about 20 wineries produce 90% of all the wine
produced. Despite this, sales of regional or limited availability
wine--of which there are perhaps over ten thousand labels--have grown.
Unfortunately, traditional distribution avenues are insufficient for
the shipment and delivery of wines from these numerous small producers.
Direct mail, the Internet and other alternative forms of distribution
have helped these small wineries stay afloat, while at the same time
helping to satisfy the growing consumer demand for smaller, lesser
known wines produced in this country.
Grape growing is a very important agricultural crop, the largest crop
in California and the sixth largest crop in the nation. Over 60% of the
grape crop is used in the production of wine. The resulting wine
industry in total annually contributes over $45 billion to the American
economy; provides 556,000 jobs, accounting for $12.8 billion in wages;
and pays $3.3 billion in state and local tax revenues. In addition,
wine is our third largest horticultural export. Wine is commercially
produced in 47 states.
Consumers in every state should be able to obtain access to a wide
variety of wines, especially the wines of small producers who lack the
distribution channels of the major wine producers in this nation. To
meet these consumer needs, I point to the 20 states which have chosen
to enact limited interstate shipments directly from winery to consumer
or retailer to consumer. Intrastate direct shipments are legal in 30
states. I also direct your attention to recently passed ``shipper
permit'' legislation in New Hampshire and Louisiana and to the special
order system developed and implemented by the Pennsylvania state liquor
monopoly.
I am concerned that passage of the proposed legislation would have a
chilling effect on efforts underway to craft creative state-by-state
solutions such as these.
Legislation to allow states to bring to Federal court an action to
enjoin shipment or transportation of liquor in violation of the laws of
a particular state would have the unintended consequence of crippling
small wineries in this country. The proposed legislation does much more
than simply providing a remedy for a violation of the Webb-Kenyon
statute that generally governs states authority over interstate
shipments. I fear that it will authorize a state to erect
discriminatory barriers to interstate commerce, which will be used to
favor in-state commercial interests to the detriment of out-of-state
wine producers. The Commerce Clause protects against state imposed
barriers to free trade. That protection should apply to wineries as
well as all other businesses.
The twenty-first amendment to the Constitution is not an absolute
divestment of Federal power to the States. The U.S. Supreme Court has
long established that the amendment has its limits and must be
considered in the context of other constitutional provisions, including
Congresses exclusive right to regulate interstate commerce.
Further, existing remedies are available for violations of liquor
laws. In the case of wine (as with harder liquors) there is an
underlying federal permit which is required to operate a winery. That
permit is subject to oversight by the Bureau of Alcohol, Tobacco and
Firearms, and requires conformance to applicable laws. There have been
successful compliance actions through this mechanism. An additional
mechanism is not necessary.
[[Page H6865]]
Professor Jesse H. Choper, a distinguished scholar in the field of
constitutional law from the University of California has written
expressing his concerns about the possible consequences of Federal
legislation in this arena. Professor Choper concludes that the proposed
legislation would violate the Commerce Clause protection against
barriers to free trade among the states, by allowing states, rather
than the Congress, to establish those barriers.
I am also concerned that the thrust of this legislation is to allow
states to use the Federal courts to obtain direct jurisdiction over
small businesses located in other states in a manner which invites
abuse of the court system and a trampling of the rights of out-of-state
citizens in order to satisfy the demands of politically powerful local
interests. Allowing the federal courts to be used as enforcement
machinery for state action seems to me a huge expansion of federalism
and a very dangerous precedent.
Proponents of this legislation claim it is necessary to curb the
delivery of alcohol product to underage purchasers. I believe that
there are few more important causes than to stem the tide of underage
drinking in this country. A Health and Human Services survey reflects
that more than half of 18-20 year olds were drinking alcohol in the
month prior to the survey, and an astonishing quarter of that age group
have engaged in binge drinking during the same period.
However, I am convinced that direct shipment of wine, beer or spirits
does not contribute to the problem. The two states with the highest
consumption of wines--California and New York--have long permitted
Intrastate shipments ordered by phone or mail. Surely, if such
mechanisms were inherently open to abuse the authorities in those
states would have discovered that by now. But they have not.
Manuel Espinoza, Chief Deputy Director of the California Alcoholic
Beverage Control agency has written to Congressman Thompson and myself
that as a result of remote sales of alcohol in California, a practice
that has been legal for almost fifty years, the state has experienced
no enforcement problems or impediments in its ability to enforce laws
related to sales to minors. California has only received one complaint
about the delivery of alcohol to underage recipients via interstate
mail orders. That complaint originated from a privately organized
``sting'' and subsequent investigation determined that the actual
delivery, though left at the door, was accepted by the minor's mother.
Another concern raised by proponents is the avoidance of state excise
taxes by interstate shippers. There is no indication that taxes avoided
by shippers constitute a significant loss of revenue to any state. It
is estimate that interstate direct shipments consist primarily of ultra
premium wine and never constitute more than one-half of one percent of
a state's total wine volume. For the entire country, a tax loss of that
magnitude would be $2 million annually. For the State of Maryland, even
if it were to allow direct shipment of wine, annual tax losses at full
volume would be less than $20,000 per year.
To address even this minuscule problem, forty-one members of
California's Congressional delegation have written to the Advisory
Commission on Electronic Commerce requesting that the Commission
address this problem when it examines means to ensure the fair
imposition of consumption, sales and use taxes arising from remote
sales of all products, a far more significant revenue problem estimated
to involve many billions of dollars in lost revenue. Congress
established this Commission for just such a purpose, and this member
suggests that we wait for the report we requested of them.
Legislation which preempts the Advisory Commission on Electronic
Commerce regarding wine will have the effect of setting a precedent in
regulation of the Internet before the Commission has done its' work. We
are moving into an arena that all of us have not had the opportunity to
think through, and our narrow attempts with wine may end up with far-
reaching impacts on the sale of anything through the Internet. That is
why Andy Sernovitz, the President of the Association for Interactive
Media (AIM) a 300 member Internet trade group, said; ``If they can stop
you from selling wine on the Internet, books and music are next.''
Mr. Chairman, the National Conference on State Legislatures recently
passed a resolution that opposed legislation which allowed federal
interference in the purchase and delivery of wine across state
borders.'' Forty-one states joined in passing that resolution, with
only 7 states supporting this bodies attempt to federalize state laws.
Mr. Chairman, I am not convinced there is an urgent national problem
which needs to be solved by allowing virtually unprecedented use of
federal courts to solve state problems which can be addressed by state
legislative and judicial means. States can make it a crime for a person
under 21 to attempt to purchase alcohol. Most have. Why don't the
Attorneys general in the states prosecute their own citizens when they
violate state laws?
Rather than the proposed legislation, alternatives include
legislation which would encourage the development of open markets so
that consumers can have access to the products which they wish to
purchase.
I close by quoting for you from a letter by Florida Attorney General
Robert Butterworth urging the veto of a bill making direct interstate
shipment of wine to a Florida consumer a felony: ``[The bill] is the
perfect tool for the vested interests who seek additional control over
the marketplace, at the expense of competition and consumer choice.''
The federal government should not empower states to engage in anti-
competitive actions favoring their in-state businesses. The federal
government should not use the power of the courts to suppress
competition. The federal government should not expand its reach into
the private purchases of consumers, or the activities of the small
businesses, which make up the largest part of the wine business.
Mr. Chairman, I thank the gentleman once again for yielding me this
time, but I must ask my colleagues to join me in opposing the bill.
{time} 1230
Mr. DELAHUNT. Mr. Chairman, I yield 2 minutes to the distinguished
gentleman from Wisconsin (Mr. Barrett.)
Mr. BARRETT of Wisconsin. Mr. Chairman, I thank the gentleman from
Massachusetts for yielding me the time.
Mr. Chairman, I rise in support of the 21st Amendment Enforcement
Act, which will help States such as my home State of Wisconsin crack
down on the illegal shipment of alcoholic beverages.
But I am concerned that today's debate is being framed as an effort
to restrict E-commerce.
Ironically, this bill does not even mention Internet and would have
no effect on the direct shipment of alcohol and other products just as
long as those shipments comply with State law.
The issue today is whether a State should have the right to take
action against a company that violates the law of that State by
shipping alcohol directly to the customer.
The 21st Amendment to the Constitution repealed prohibition but gave
each State the right to regulate the sale of alcoholic beverages.
Direct sales, whether over the Internet, by phone, or through the mail,
violate the laws of certain States, make it easier for children to
obtain alcohol, and drain needed tax revenue. This bill merely gives
these States an additional tool to stop a practice that is already
illegal.
Commerce over the Internet continues to grow at an incredible rate,
and Congress should do nothing to discourage fair growth. But companies
in one State should not be able to disregard the laws of another State
in an effort to reach new customers.
I urge my colleagues to cast a vote for fair Internet commerce and
for States' rights by passing the 21st Amendment Endorsement Act.
Mr. SCARBOROUGH. Mr. Chairman, I yield 2 minutes to the gentleman
from Washington (Mr. Nethercutt) another friend and classmate with whom
I disagree today.
Mr. NETHERCUTT. Mr. Chairman, I thank the gentleman from Florida for
his gracious yielding of time even though we disagree on this.
My colleagues, I think this is a legislation that is ill-advised. And
I commend to the sponsors and the managers today, the gentlemen from
Florida, Massachusetts, and Georgia, to the National Conference of
State Legislatures vote which occurred on July 29, just a few days ago,
by a vote of 41-7.
Forty-one States oppose H.R. 2031, including Massachusetts, Georgia,
and Florida. These State legislators who made this judgment believe
that the direct shipping issue should be resolved at the State and
local levels of government. And so I think there is a disconnection
here between a perceived problem, as I see it, by the sponsors and an
actual problem.
I come from a State and represent a district, Washington State, and
the Fifth Congressional District, where we have emerging small wineries
who do direct customer transfers and shipments. They are not trying or
do not violate the law. But there is a chilling effect that this
legislation would have on it on this emerging business.
[[Page H6866]]
It is clear to me that this is a job loser to the extent that there
is a restriction on these emerging companies over the Internet. What
they do and what they have explained to me very clearly is there is a
very complicated process they must go through in order to ship a bottle
of wine or a case of wine from manufacturer A to customer B in another
State.
The Federal Express transfer company has to make sure there is a
signature on the other end from an adult over the age of 18 able to buy
this kind of product. And if not, it has to be sent back. So it is the
shipper and the shipping company that is the most at risk.
So I urge my colleagues to reject this bill.
Mr. DELAHUNT. Mr. Chairman, I yield 1 minute to the gentleman from
Tennessee (Mr. Gordon).
Mr. GORDON. Mr. Chairman, as I have listened to the debate this
morning, I have discovered that there has been an abundance of debate
on pros and cons of this legislation, contradictory pros and cons.
However, there has been one common denominator. That common
denominator is that no one wants to see the Internet used to encourage
alcohol abuse by minors. So the real question before us today is how
can we stop the Internet from using or being used as a vehicle for
alcohol abuse by minors?
After reviewing this legislation, it seems to me that there is a
better way, that this legislation simply oversteps and that a better
approach would be requiring sellers and shippers to clearly label
packages as containing alcohol and that they obtain proof that the
recipient is of legal drinking age.
I am co-sponsoring legislation to do that and would suggest that is a
better approach.
The CHAIRMAN. The gentleman from Florida (Mr. Scarborough) has 3
minutes remaining. The gentleman from Massachusetts (Mr. Delahunt) has
7\1/2\ minutes remaining.
Mr. DELAHUNT. Mr. Chairman, I yield 3 minutes to the gentlewoman from
California (Mrs. Capps).
Mrs. CAPPS. Mr. Chairman, I thank my colleague for yielding me the
time.
Mr. Chairman, I rise in strong opposition to H.R. 2031. This
legislation would restrict interstate commerce and limit consumers'
choices throughout the country. It would also seriously harm the small
vintners in my district and around this Nation.
Let me explain how some people from our States and districts like to
buy wine. They come to places like the central coast of California and
spend a few days touring the vineyards and tasting the wines of my
district and maybe they buy some to take home.
After they get home, they will discover they cannot find any wine
from these lovely vineyards in Paso Robles or the Santa Maria Valley
that they like so much. So they try to order some over the phone or
through the Internet, until the vineyard tells them, ``No, sorry, but
your State will not let us ship to you. You're out of luck.''
Right now a number of States have adopted laws that restrict the
rights of their citizens to order wine from out-of-state wineries. This
bill would encourage more State legislatures to adopt these anti-
consumer laws.
Is that really what the authors of this legislation want to do,
restrict the choices of law-abiding adult consumers?
Let me quote from the Wall Street Journal. ``Shutting down shipments
of $300 cases of wine is not a reasonable regulation of intoxicating
beverages; it is an obstacle to interstate commerce of precisely the
type the Founders intended to prohibit.''
What this legislation will do is harm the little guy, the small
family vintners and wineries. I have heard from so many vintners in my
district who would like to be able to reach more consumers throughout
the country. However, this is not possible without going through a
large distributor who simply will not ship small quantities of wine.
And besides, retailers only have so much shelf space and certainly not
enough for the wine productioned by 1,600 small wineries throughout the
United States.
So vintners seek to expand their businesses and serve their loyal
customers through phone orders or through the Internet. This bill will
seek to shut down that avenue of commerce.
The authors of this legislation claim that its purpose is to cut down
on underage drinking, and that is a noble goal.
As a school nurse for 20 years, I have worked very hard to fight
underaged drinking. But this bill is not about stopping kids from
drinking. If it were, we would think Mothers Against Drunk Driving
would be in favor of it. They are not.
California has allowed direct sales for over 20 years, and it has had
no measurable effect on underage drinking. If we really want to
discourage underage drinking, we should support programs like Fighting
Back in my district, which works through public awareness initiatives
and provides youth services, or we should challenge the drug czar to
include anti-youth drinking ads as part of the government's anti-drug
ad campaign.
If this were a bill to cut down on underage drinking, I would be for
it. But it is not. It is an attack on our small vintners.
Mr. Chairman, I urge my colleagues to join me in opposition to this
misguided legislation.
Mr. SCARBOROUGH. Mr. Chairman, I yield myself 30 seconds to respond
to something that the gentlewoman from California (Mrs. Capps) said.
She said that this would restrict choices of legal purchases of wine.
That is just not the case. If they sell alcohol legally, this does not
apply to them. If they sell alcohol illegally, it applies to them.
Because all this language says is, if they sell alcohol illegally,
that States' attorneys general will be able to go to court and stop
them from selling alcohol illegally and stopping interstate
bootlegging.
Mr. DELAHUNT. Mr. Chairman, I yield 2 minutes to the gentleman from
Missouri (Mr. Hulshof).
Mr. HULSHOF. Mr. Chairman, I thank the gentleman for yielding me the
time, especially as time is drawing short.
Mr. Chairman, I rise in opposition to the bill of the gentleman and
in the interest of full and complete disclosure.
I have got to tell my colleagues that I am an avid wine enthusiast
and that my wife and I took our honeymoon vacation to the wineries of
California, and we have enjoyed our subsequent visits there. But I will
tell my colleagues, Mr. Chairman, this is not just an issue that
affects California but one that impacts Texas, Oregon, Washington,
Virginia, New York. And my own beloved State of Missouri is home to
many family-run wineries whose intentions are not criminal.
Instead, these small businesses attempt to satisfy long-time repeat
customers and cultivate new ones, those who have left those well-worn
tourist paths and have chosen to adventure to experience the adventure
and hospitality of a small but friendly winery.
These long-time family businesses in my district, one dating back to
1855, nonetheless depend on E-commerce, a way to attract new business
and survive alongside the large wholesalers.
Mr. Chairman, this law, in my belief, is unnecessary. I have listened
and I have accepted the invitation of my friend from Florida, and I
have listened to the debate; and I have got to tell my colleagues that
I am unmoved by arguments offered by the proponents that massive
numbers of underage drinkers are searching the Internet for basement
bargains of bottles of Bordeaux to binge with their friends on their
parents' next night out. I am struck, however, by the apparent
inconsistency demonstrated by some of those who are leading the charge
in favor of this measure.
A few weeks ago, the gentleman from Georgia, we were leading the
charge, a very emotional debate, about the availability of and access
to firearms and whether further restrictions were needed. Many argued
against further intrusions claiming appropriately, in my view, that
additional gun laws were in violation of the rights of law-abiding
citizens.
Here is my question: If gun manufacturers are immune from civil
liability in the case of criminal conduct committed by a violent felon
who has purchased a firearm, and I support that immunity, then how can
we hold vintners responsible for the unlawful purchases of wine?
I urge the defeat.
The CHAIRMAN. Both gentlemen have 2\1/2\ minutes remaining. The
manager of the bill has the right to close.
[[Page H6867]]
Mr. GOODLATTE. Mr. Chairman, I yield 1 minute to the gentleman from
Georgia (Mr. Barr).
Mr. BARR of Georgia. Mr. Chairman, I thank the gentleman for yielding
me the time.
Mr. Chairman, this particular analogy just put forth by the gentleman
from Missouri (Mr. Hulshof) with gun liability is completely misplaced.
We are not saying that anybody should or should not be immune from
ultimate illegal use of the alcohol, such as the drunk driver. This
bill simply goes to the shipping into the State in violation of an
existing State law.
Now, if those States, and we have heard from a number of Members that
are speaking for the wineries, if those States have a disagreement with
a particular alcoholic restrictive law of a particular State, then
their remedy should be to go to those State legislators and change the
State laws that relate to how liquor can be brought into and
distributed within that State.
But again, to make perfectly clear, and let us remove the clouds of
the gun debate and the commerce debate here, this is a bill that simply
empowers attorneys general of the States to seek injunctive relief to
stop shippers, large or small, from shipping into their State in
violation of State laws. It does not affect the legal shipper.
I urge support of the bill.
Mr. DELAHUNT. Mr. Chairman, I yield 30 seconds to the gentleman from
Oregon (Mr. DeFazio).
Mr. DeFAZIO. Mr. Chairman, I thank the gentleman for the generous
grant of time.
Mr. Chairman, I rise in opposition to the bill. Where in this bill do
we target or state explicitly that what we are doing is going after
underage purchasers of wine over the Internet or microbrew over the
Internet?
This is a very broad bill. The target is much larger than underaged
drinking and access to alcohol. They are still going to go down to the
concern and give the guy an extra couple of bucks who is a bad guy to
go into the store and buy the stuff. They are not going to do it over
the Internet and buy an expensive case of wine. That is not what we are
after here. We are trying to close down the small wineries and
breweries.
Mr. SCARBOROUGH. Mr. Chairman, how much time do I have remaining?
The CHAIRMAN. The gentleman from Florida (Mr. Scarborough) has 1\1/2\
minutes remaining. The gentleman from Massachusetts (Mr. Delahunt) has
2 minutes remaining.
Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I think the point has been made again and again that
this particular proposal has nothing whatsoever to do with impeding the
growth of E-commerce in terms of the sales of wine or any spirits or
alcohols.
What it has to do is with respect to State laws. The fact and the
reality is that we should be here to respect and provide an opportunity
to States that find themselves with limited capacity and ability to
enforce their own laws.
Now, the gentleman from New York (Mr. Rangel) spoke to the issue of
guns. Now, I know I have a disagreement with my friends from Georgia
and Florida. But let me say, when it comes to that particular issue, I
want the laws in Massachusetts relative to guns respected and honored
anywhere in this Nation.
{time} 1245
I do not want the shipment of firearms into Massachusetts from
Georgia, Florida or California. I want to ensure that my Attorney
General has the right to go to court and have the firearm laws of
Massachusetts respected, initially.
Another item here, Mr. Chairman. This is from the New York Times.
``Officials Struggle to Regulate On-Line Sale of Prescription Drugs.''
I am just going to quote:
The Food and Drug Administration announced steps today to
curb the illegitimate sale of prescription drugs over the
Internet. Now doctors are prescribing pills on-line to
patients they have never met in States where they are not
authorized to work. Pharmacies are shipping pills across
State lines without the requisite license.
The CHAIRMAN. The time of the gentleman from Massachusetts (Mr.
Delahunt) has expired.
Mr. SCARBOROUGH. Mr. Chairman, I yield myself such time as I may
consume. I would just like to say in closing, again bringing up what I
brought up at the very beginning of the debate. We can talk about a lot
of different things, we can throw red herrings in front of the people
in this Chamber, but in the end the dividing line of this bill is
between legal alcohol sales and illegal alcoholic sales.
We have had some people who are angry because they say we are trying
to destroy local wineries. Again, the only local wineries that will be
destroyed will be the local wineries whose very existence depends on
illegal sales, because their legal sales will not be affected. We have
people that are angry because we are not limiting this to merely people
under 21 years of age. Their argument seems to be that if you are 21
years old and 1 day, then illegal bootlegging to you is okay while it
is not okay to minors. That is just not right.
We have had the argument that this is a made-up issue. Again, I do
not know how many times we have to read the 30 plus television stations
that have run stings on this thing.
Also, one thing, going back to what my good friend the gentleman from
Missouri said about gun sales. That is just not relevant. I will say to
the gentleman right now, I, too, oppose illegal gun sales across State
lines, and I think it is very courageous that you do that, also. Now I
am asking you and everybody in this House to join with me and support
the banning of illegal alcoholic sales.
Ms. ROYBAL-ALLARD. Mr. Chairman, I rise in opposition to H.R. 2031,
the 21st Amendment Enforcement Act.
H.R. 2031's proponents contend that it will address the problem of
illegal sales to minors over the Internet. I strongly support cracking
down on underage drinking, but this bill does nothing to address this
serious problem. Rather, H.R. 2031 is nothing more than an intra-
industry battle between liquor wholesalers and Internet liquor
retailers. Under the guise of protecting minors from Internet alcohol
sales, this bill's true intent is to tie up Internet liquor retailers
in federal litigation.
Supporters of this legislation have failed to provide evidence of any
wide-spread problem with illegal, under-age Internet alcohol sales. In
fact, in California, we have had telephone and mail-ordered wine
deliveries since 1963 and our law enforcement agencies report they have
not encountered problems with these deliveries. Moreover, legitimate
concerns over underage Internet purchases of alcohol have been
adequately addressed by the industry's practice of visibly labeling
shipping packages as containing alcohol and requiring the signature of
persons over the age of 21 for receipt. Finally, state and federal
enforcement mechanisms already exist to address illegal alcohol sales.
H.R. 2031 will add a duplicative and unnecessary layer to already
existing law.
I find it ironic that one of the chief proponents of this bill, the
National Beer Wholesalers Association, actively opposed my efforts to
include language in the Treasury-Postal Appropriations Bill to include
underage drinking in the billion-dollar anti-drug media campaign
administered by the Office of National Drug Control Policy. If the
National Beer Wholesalers are so devoted to fighting underage drinking,
you would think they would have joined forces with me. Instead, they
fought tooth and nail against establishing an effective effort to
combat illegal alcohol use by teenagers.
Not only is this bill bad policy, it's also anti-business. As small
vintners in California and across the nation seek innovative ways to
promote their quality product, they are naturally looking at the
marketing opportunities presented by the Internet. This bill would work
directly against such marketing and trade opportunities.
Direct access has been a long-standing problem for the 1,600 family-
owned wineries who compete with the 10 mega-wineries that produce 90%
of the wine in the United States. Wholesalers cannot supply all of the
unique wines available from smaller wineries to the majority of
consumers and thus, these small wineries are excluded from the national
market. The Internet is a vital sales tool for the small wineries to
directly promote their wines to consumers.
H.R. 2031's true design is simple: it would protect wholesalers of
wine, beer and distilled spirits from Internet competition. I urge my
colleagues to defeat this proposal and work instead to promote
interstate trade. Let's support the 1,600 small wineries in California
and across the United States who are using their good business sense to
expand markets and create jobs in their communities.
The CHAIRMAN. All time for general debate has expired.
Pursuant to the rule, the committee amendment in the nature of a
substitute printed in the bill is considered
[[Page H6868]]
as an original bill for the purpose of amendment and is considered
read.
The text of the committee amendment in the nature of a substitute is
as follows:
H.R. 2031
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Twenty-First Amendment
Enforcement Act''.
SEC. 2. SHIPMENT OF INTOXICATING LIQUOR INTO STATE IN
VIOLATION OF STATE LAW.
The Act entitled ``An Act divesting intoxicating liquors of
their interstate character in certain cases'', approved March
1, 1913 (commonly known as the ``Webb-Kenyon Act'') (27
U.S.C. 122) is amended by adding at the end the following:
``SEC. 2. INJUNCTIVE RELIEF IN FEDERAL DISTRICT COURT.
``(a) Definitions.--In this section--
``(1) the term `attorney general' means the attorney
general or other chief law enforcement officer of a State, or
the designee thereof;
``(2) the term `intoxicating liquor' means any spirituous,
vinous, malted, fermented, or other intoxicating liquor of
any kind;
``(3) the term `person' means any individual and any
partnership, corporation, company, firm, society,
association, joint stock company, trust, or other entity
capable of holding a legal or beneficial interest in
property, but does not include a State or agency thereof; and
``(4) the term `State' means any State of the United
States, the District of Columbia, the Commonwealth of Puerto
Rico, or any territory or possession of the United States.
``(b) Action by State Attorney General.--If the attorney
general has reasonable cause to believe that a person is
engaged in, or has engaged in, any act that would constitute
a violation of a State law regulating the importation or
transportation of any intoxicating liquor, the attorney
general may bring a civil action in accordance with this
section for injunctive relief (including a preliminary or
permanent injunction or other order) against the person, as
the attorney general determines to be necessary to--
``(1) restrain the person from engaging, or continuing to
engage, in the violation; and
``(2) enforce compliance with the State law.
``(c) Federal Jurisdiction.--
``(1) In general.--The district courts of the United States
shall have jurisdiction over any action brought under this
section by an attorney general against any person, except one
licensed or otherwise authorized to produce, sell, or store
intoxicating liquor in such State.
``(2) Venue.--An action under this section may be brought
only in accordance with section 1391 of title 28, United
States Code, or in the district in which the recipient of the
intoxicating liquor resides or is found.
``(d) Requirements for Injunctions and Orders.--
``(1) In general.--In any action brought under this
section, upon a proper showing by the attorney general of the
State, the court may issue a preliminary or permanent
injunction or other order to restrain a violation of this
section. A proper showing under this paragraph shall require
clear and convincing evidence that a violation of State law
as described in subsection (b) has taken place. In addition,
no temporary restraining order or preliminary injunction may
be granted except upon--
``(A) evidence demonstrating the probability of irreparable
injury if injunctive relief is not granted; and
``(B) evidence supporting the probability of success on the
merits.
``(2) Notice.--No preliminary injunction or permanent
injunction or other order may be issued under paragraph (1)
without notice to the adverse party and an opportunity for a
hearing.
``(3) Form and scope of order.--Any preliminary or
permanent injunction or other order entered in an action
brought under this section shall--
``(A) set forth the reasons for the issuance of the order;
``(B) be specific in its terms;
``(C) describe in reasonable detail, and not by reference
to the complaint or other document, the act or acts sought to
be restrained;
``(D) be binding upon--
``(i) the parties to the action and the officers, agents,
employees, and attorneys of those parties; and
``(ii) persons in active concert or participation with the
parties to the action who receive actual notice of the order
by personal service or otherwise.
``(e) Additional Remedies.--
``(1) In general.--A remedy under this section is in
addition to any other remedies provided by law.
``(2) State court proceedings.--Nothing in this section may
be construed to prohibit an authorized State official from
proceeding in State court on the basis of an alleged
violation of any State law.''.
SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENT.
(a) Effective Date.--Except as provided in subsection (b),
this Act and the amendment made by this Act shall take effect
on the date of the enactment of this Act.
(b) Application of Amendment.--The amendment made by this
Act shall apply only with respect to the importation or
transportation of any intoxicating liquor occurring after--
(1) October 31, 1999, or the expiration of the 90-day
period beginning on the date of the enactment of this Act,
whichever is earlier, if this Act is enacted before November
1, 1999; or
(2) the date of the enactment of this Act if this Act is
enacted after October 31, 1999.
The CHAIRMAN. The bill shall be considered under the 5-minute rule
for a period not to exceed 2 hours.
During consideration of the bill for amendment, the Chair may accord
priority in recognition to a Member offering an amendment that he has
printed in the designated place in the Congressional Record. Those
amendments will be considered read.
The Chairman of the Committee of the Whole may postpone a request for
a recorded vote on any amendment and may reduce to a minimum of 5
minutes the time for voting on any postponed question that immediately
follows another vote, provided that the time for voting on the first
question shall be a minimum of 15 minutes.
Amendment Offered by Mr. Goodlatte
Mr. GOODLATTE. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Goodlatte:
Page 6, line 9, strike the close quotation marks and the
period at the end.
Page 6, after line 9, insert the following:
``SEC. 3. GENERAL PROVISIONS.
``(a) Effect on Internet Tax Freedom Act.--Nothing in this
Act may be construed to modify or supersede the operation of
the Internet Tax Freedom Act (47 U.S.C. 151 note).
``(b) Enforcement of Twenty-First Amendment.--It is the
purpose of this Act to assist the States in the enforcement
of section 2 of the twenty-first article of amendment to the
Constitution of the United States, and not to impose an
unconstitutional burden on interstate commerce in violation
of in article I, section 8, of the Constitution of the United
States. No State may enforce under this Act a law regulating
the importation or transportation of any intoxicating liquor
that unconstitutionally discriminates against interstate
commerce by out-of-State sellers by favoring local
industries, thus erecting barriers to competition and
constituting mere economic protectionism.
``(c) Support for Internet and Other Interstate Commerce.--
Nothing in this Act may be construed--
``(1) to permit state regulation or taxation of Internet
services or any other related interstate telecommunications
services
``(2) to authorize any injunction against--
``(A) an interactive computer service (as defined in
section 230(f) of the Communications Act of 1934 (47 U.S.C.
230(f)); or
``(B) electronic communication service (a defined in
section 2510(15) of title 18 of the United States Code).
Mr. GOODLATTE. Mr. Chairman, I offer this amendment along with the
gentleman from California (Mr. Cox) and the gentleman from Michigan
(Mr. Conyers) and with the support of the gentleman from Florida who
has offered the underlying legislation.
The amendment to H.R. 2031 clarifies that this bill is not meant to
interfere with legitimate electronic commerce on the Internet. First,
the amendment clarifies that the bill in no way supersedes the recently
enacted Internet Tax Freedom Act which placed a 3-year moratorium on
new multiple and discriminatory Internet taxes. I strongly supported
passage of that act and do not wish to see it compromised.
Second, our amendment clarifies that this bill in no way extends the
powers of States to interfere with electronic commerce. It includes
language that clarifies that the authority granted to States under this
bill is limited to the enforcement of State laws regarding the
transportation of alcohol within its borders, not to the legal
advertisement or sale of alcohol on-line.
Third, our amendment ensures that injunctive relief is available
against the entity shipping alcohol in violation of applicable laws,
not against communications companies used by these third parties'
activities for advertising and other communication purposes.
Mr. Chairman, it is important as we craft laws that apply to the
Internet and other communications services that we avoid imposing
liability on these service providers for the actions of third parties.
The approach of this amendment is fully consistent with the approach we
have adopted in the Telecommunications Act of 1996 which has played a
very beneficial role in the growth of the Internet over the last 3\1/2\
years.
Mr. Chairman, aiming injunctive relief at the individual engaged in
the commercial activity we are concerned about, not the communications
company, is a common-sense solution. Unlike the seller or transporter
engaged in an illegal transaction, the communications company has no
idea what
[[Page H6869]]
States the transaction affects and is not in a position to tailor the
transaction to comply with the different laws of 50 States.
Furthermore, Internet service providers and other communications
companies are in no position to monitor the conduct of their users or
to prevent transactions. Indeed, enforcement approaches such as
injunction to block Internet sites can seriously disrupt lawful
Internet communications and slow the operations of a service provider's
network for all users.
Mr. Chairman, if we do not adopt this amendment, we risk needless
legal uncertainty and pointless litigation against Internet service
providers and other communications companies. The amendment has the
support of groups such as America Online, the Commercial Internet
Exchange, Prodigy, PSI Net, BellSouth and Bell Atlantic.
Mr. Chairman, I urge my colleagues to adopt the tech-friendly,
common-sense solution and pass this amendment.
Mr. DELAHUNT. Mr. Chairman, I rise in support of the amendment.
I want to applaud the gentleman from Virginia and the gentleman from
California. I concur that this is an amendment that is needed and it
addresses a problem. I support the amendment.
Mr. COX. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I wish to thank the author of the bill the gentleman
from Florida (Mr. Scarborough) and the gentleman from Virginia (Mr.
Goodlatte) who just offered this amendment for their excellent work in
support not only of the main purpose of the law but also in another
area, and, that is, Internet freedom, Internet freedom from regulation
and Internet freedom from taxation so that that dynamic medium can
continue to grow and prosper.
The amendment's language makes it clear that search engines, Internet
service providers, web hosting services and other interactive computer
services will not be adversely affected by this bill. In addition, the
bill makes it clear, as presently written with this amendment, that it
is for the enforcement of the 21st amendment that we are granting State
attorneys general the power to enter Federal court. This is not the
beginning of a slippery slope in which new laws can be written to
regulate and tax the Internet under the guise of regulating alcoholic
beverage transactions. To the contrary, it is the 21st amendment which
will control, and the Supreme Court has told us that the 21st amendment
did not have the effect of repealing the interstate commerce clause.
Rather, States are free to regulate within their boundaries the sale,
distribution and production of alcoholic beverages and the importation
of alcoholic beverages produced and sold elsewhere in order to promote
temperance, in order to maintain their status as dry States or even
counties to be dry counties, to promote those social purposes behind
the 21st amendment. But in doing so, in vindicating the purposes of the
21st amendment, a State cannot discriminate as mere economic
protectionism against other sellers, other producers in the rest of the
United States. I think that this language that is agreed upon all
around makes it clear so that today what we are talking about is
alcohol, we are talking about the 21st amendment. We are not talking
about newfound powers of the parochial, of the municipality, the
county, the State, to tax or regulate either instrumentalities of
interstate commerce, particularly the Internet and other
telecommunications, and neither are we talking about new opportunities
to tax and regulate the things that move across it. We are limiting
ourselves, as properly we should, to those things that are covered by
the 21st amendment and nothing else.
Mr. BARR of Georgia. Mr. Chairman, will the gentleman yield?
Mr. COX. I yield to the gentleman from Georgia.
Mr. BARR of Georgia. Mr. Chairman, if the gentleman would engage in a
brief colloquy. It is, then, with the language that the gentleman is
proposing here, if in fact hypothetically, if you have the recipient
State which prohibits the sale of alcoholic beverages to anyone under
the age of 21 and you have a seller winery in another State and there
is a transaction made over the Internet to sell the alcoholic beverage
to somebody in the recipient State who is in fact under 21, the
language that the gentleman is proposing here, which is really
clarifying language, would not prohibit the attorney general of the
recipient State from seeking injunctive relief if they can otherwise
meet the burdens of the legislation, is that correct?
Mr. COX. Yes. That is true if the underlying State legislation is
itself consistent with the 21st amendment and the interstate commerce
clause.
Mr. BARR of Georgia. In other words, if a State, as many States do,
have a flat out prohibition on the sale of alcoholic beverages to a
person under the age of 21, then the language that the gentleman is
proposing here would not prohibit the recipient State from seeking
injunctive relief from an out-of-State seller using the Internet to
sell the alcohol to somebody under 21 in the recipient State?
Mr. COX. Yes. The State law itself is authorized, to the extent it is
authorized, by the 21st amendment to the Constitution. And because the
United States Supreme Court has interpreted the 21st amendment to mean
that it does not empower States to pass laws that favor local liquor
industries by erecting barriers to competition and that State laws that
constitute mere economic protectionism are not entitled to the same
deference as laws enacted to combat the perceived evils of an
unrestricted traffic in liquor. We are simply restating those
constitutional principles in the statute.
Mr. BARR of Georgia. In other words, so long as there is the basis
for the recipient State's prohibition on the sale of alcoholic
beverages to somebody under 21.
The CHAIRMAN. The time of the gentleman from California (Mr. Cox) has
expired.
(On request of Mr. Barr of Georgia, and by unanimous consent, Mr. Cox
was allowed to proceed for 1 additional minute.)
Mr. COX. Mr. Chairman, I continue to yield to the gentleman from
Georgia.
{time} 1300
Mr. BARR of Georgia. In other words, just to clarify this point, I
appreciate the indulgence of the gentleman from California. If in fact
the law prohibiting the sale of alcoholic beverages to anyone under the
age of 21 in the recipient State is based on a legitimate public
interest and public safety, not on economic protectionism, then under
the scenario that I indicated, the attorney general of the recipient
State could, under this legislation as proposed to be amended by the
gentleman from California, seek injunctive relief.
Mr. COX. That is correct. What we are trying to do is restate in
simple, easy to understand language the balance that the courts, I
think, have properly struck between vindicating the purpose of the 21st
amendment and at the same time making sure that we do not subtract in
any way from the interstate commerce clause. They are both parts of the
Constitution, both read together. I think that the current case law
that we have cited and that we repeat in the statute expresses it as
elegantly and simply as it can be expressed.
Ms. LOFGREN. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I do want to comment briefly on the amendment offered
by the gentleman from California (Mr. Cox).
I will support this amendment. It does clarify issues relative to
Internet service providers and to the Net itself. However, I do want
Members to know that, although this amendment should be supported and I
intend to vote for it, it does not cure other problems that we find
troubling in the underlying bill.
The issues relate to the commerce clause and to the conflict between
that clause and the 21st amendment. This conflict continues to be
problematic. As we discussed at some length in the Committee on the
Judiciary when the bill was considered, the 21st amendment did not
repeal the commerce clause. So even though this amendment does
accommodate the Internet--and I credit the gentleman from California
(Mr. Cox) for bringing this forward and commend the gentleman from
Virginia (Mr. Goodlatte) and the gentleman from Michigan (Mr. Conyers)
for their considerable effort on Internet issues--the problem in the
underlying bill persists. If this bill becomes
[[Page H6870]]
law, State AG's shall be able to burden impermissibly interstate
commerce using the cover of the 21st amendment.
Thus, even with this fine amendment, the underlying bill continues to
be overbroad. We can't seem to agree to limit it to the one issue that
we all agree is significant, namely that we should not permit or
facilitate underage drinking. By contrast, this bill would allow a
variety of arcane blue laws that have nothing whatsoever to do with
underage drinking or any other legitimate concern of the Federal
Government to be enforced by a State attorney general in a Federal
court.
I will wholeheartedly support this amendment, and I sincerely hope it
is approved, but I intend, even if it is adopted, to oppose the
underlying bill because of the other problems I've enumerated.
Mr. SCARBOROUGH. Mr. Chairman, I move to strike the requisite number
of words.
Mr. Chairman, I would like to enter into a colloquy with the
gentleman from California (Mr. Cox) briefly just to clarify a few
things.
The gentleman from Georgia (Mr. Barr) was asking the gentleman if a
State would still be able to enforce their alcohol laws, and the
gentleman said they could. If he can explain the purpose of this
clarifying language regarding economic protectionism and a bill a State
legislature passes for the mere purposes of economic protectionism.
Mr. COX. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from California.
Mr. COX. Yes, the language in section 1 is now written as section
3(b) on Line 17 of the amendment, as reported, states that no State may
enforce under this act a law regulating the importation or
transportation of any intoxicating liquor and with some additional
language interpolated that constitutes mere economic protectionism, and
that is the existing Supreme Court test, and we wish simply to conform
our statute with that Supreme Court test.
Mr. SCARBOROUGH. Mr. Chairman, reclaiming my time, let me ask the
gentleman another question.
We go to support for Internet and other interstate commerce, and it
says nothing in this act may be construed to permit State regulation or
taxation of Internet services or any other related interstate
telecommunications, and it is important for us to differentiate here
that we are talking about the actual Internet service itself or the
telecommunication service and not the goods that are sold over the
Internet.
Mr. COX. Yes, I think that that is correct.
In addition, when combined with the preceding section, we make it
clear that the goods that we are talking about letting States regulate
and tax are alcoholic beverages and those things covered by the 21st
amendment, so that it is also true what we are not doing in this
legislation today is opening up new vistas of taxation and regulation
of products that move across the Internet. We are restricting ourselves
only to the four corners of the power that States have under the 21st
amendment.
Mr. SCARBOROUGH. And the gentleman's actual language, the language
that we have all agreed to, goes again to the Internet service and not
the goods, and the goods here being alcohol.
Mr. COX. Yes, and the reason we hope that this is a belt-and-
suspenders operation, that this is surplusage, but perhaps not because
States and localities have been very aggressive about taxation and
regulation of the Internet. We want to make sure that no State confuses
its power to tax or regulate alcoholic beverages with a new one found
in this statute or anywhere else to tax or regulate the Internet or the
means of interstate communication or sale.
Mr. SCARBOROUGH. And reclaiming my time, I just like to say I agree
with the gentleman and the gentleman from Virginia (Mr. Goodlatte) 100
percent, and it is very important that we allow E-commerce to flourish
without new regulations or tax burdens, and I believe this language
does so while still allowing the State to enforce its alcohol laws as
it was given the right in the 21st amendment some 60 or 65 years ago.
Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from Virginia.
Mr. GOODLATTE. Mr. Chairman, I just want to make it clear that it is
my intention and I believe the intention of the gentleman from
California, and he may want to speak for himself, that if there is an
existing State law that taxes the sale of alcohol in that State and the
sale happens to come into the State from out of State and the original
purchase was made over the Internet, that that taxation still applies
as it does with the Internet Tax Freedom Act. The Internet Tax Freedom
Act does not overturn existing State laws on the sale of products from
one State to another, just like it does not with a catalogue sale or
any other type of sale. It simply imposes a moratorium on new taxes on
Internet services.
Is that a correct statement?
Mr. COX of California. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from California.
Mr. COX of California. It is certainly correct as far as the
gentleman has taken it. I would add to that the following:
Some State laws are unconstitutionally and impermissibly
discriminatory, as for example the Hawaii tax that exempted pineapple
wine. The Supreme Court properly said that that was an unconstitutional
impermissible discrimination in favor of instate and against out-of-
state producers, and all of these laws not having been tested under the
commerce clause, we cannot say that we are trying to grandfather them
here against that.
The CHAIRMAN. The time of the gentleman from Florida (Mr.
Scarborough) has expired.
(On request of Mr. Goodlatte, and by unanimous consent, Mr.
Scarborough was allowed to proceed for an additional 2 minutes.)
Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from Virginia.
Mr. GOODLATTE. What the gentleman is saying is that if there is a law
existing out there or one that may be proposed in the future that is
unconstitutional, we do not want this act, whether it could or could
not, we do not want it to be read as encouraging anybody in that
direction. We want to make sure that unconstitutional laws are
discouraged because they are unconstitutional whether we pass this
amendment or not.
Mr. DELAHUNT. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from Massachusetts.
Mr. DELAHUNT. I think it is very important because during the course
of the general debate, mention was made that this proposal could lead
to new taxation, taxation on the Internet; and I think that the
colloquy that has occurred here has clarified that. In fact, it was the
gentleman from California (Mr. Cox) who during the 105th session of
Congress was the key sponsor that led to the enactment of the
moratorium on taxation on the Internet; but that did not, that did not
extinguish the right of States to tax on the Internet according to
their preexisting taxation scheme.
Am I correct, Mr. Chairman?
Mr. COX. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from California.
Mr. COX. Yes, the purpose of the Internet Tax Freedom Act was to
prevent new taxes on the Internet and discriminatory taxes that prayed
upon the Internet.
Mr. DELAHUNT. And if the gentleman yield, nothing that this bill
proposes in any way impacts that moratorium.
Mr. COX. Again, Mr. Chairman, if the gentleman from Florida will
yield?
Mr. SCARBOROUGH. I yield to the gentleman from California.
Mr. COX. Mr. Chairman, I thank the gentleman. That is correct.
Amendment Offered by Mr. Conyers to the Amendment Offered By Mr.
Goodlatte
Mr. CONYERS. Mr. Chairman, I offer a perfecting amendment to the
amendment.
The Clerk read as follows:
Amendment offered by Mr. Conyers to the amendment offered
by Mr. Goodlatte:
At the end of the matter proposed to be inserted, strike
the period and insert a semicolon and add the following text:
``used by
[[Page H6871]]
another person to engage in any activity that is subject to
this Act.''.
Mr. CONYERS. Mr. Chairman, I want to thank my friends who have
introduced this. I had an amendment quite similar to it, and I do not
think it will be necessary to offer it now. But the perfecting
amendment I am offering will clarify that Internet service providers
and electronic communication services will be exempted only where they
are used by another person to engage in activity covered by the act.
Thus, for example, if Yahoo or another Internet provider goes into the
business of selling or shipping liquor, they would not be exempted from
liability.
Now, Mr. Chairman, Internet commerce has opened new doors of
opportunities for entrepreneurs around the country as well as provided
consumers with a vast array of new choices of goods and services; and
with the expansion of commerce over the Internet comes the added
benefit of greater competition which will lead to lower prices for
consumers.
Of course, we do not want people to use Internet to violate the law,
but we also do not want to create unnecessary and burdensome
regulations that will hinder this emerging new marketplace, nor do we
want to hinder the types of commercial transactions that permit direct
contact between producers and consumers.
The best marketplace is one that promotes robust competition, and
therefore we want to encourage new entrants to the market and not erect
barriers blocking them.
As is currently written, the legislation could have negative
repercussions for the emerging Internet marketplace. State alcohol laws
often target liquor sold over the Internet, and therefore I urge that
we proceed cautiously when we grant a Federal forum for these types of
State actions to ensure the Internet service providers and other
telecommunication services do not bear the brunt of the liability.
{time} 1315
Another problem is that the bill gives and encourages the imposition
of new Internet taxes by giving States another forum in which to
collect those taxes from out-of-State defendants. This is a bipartisan
and non-controversial improvement, and I hope that my perfecting
amendment will be accepted, which remedies these problems.
What we are doing here, I believe, is clarifying that this measure
cannot be used as a tool to bring actions against Internet providers
and other wired telecommunications services.
It seems to me we can all agree that we do not want Internet carriers
to be the targets of State attorney general actions to enforce our
State alcohol laws. The amendment also clarifies that the legislation
does not modify or supersede the Internet Tax Freedom Act, in which
Congress placed a moratorium on new Internet taxes. We do not want to
undermine Congress' prior legislation and permit selective carveouts to
that important commitment.
This amendment is supported by many groups and organizations, America
Online, Bell Atlantic, Bell South, the Commercial Internet Exchange
Association, Prodigy and PSInet. Whether or not one ultimately supports
2031, this very important amendment deserves your vote. Although these
changes do not address all of my concerns, this is an important
improvement to the legislation, and I urge that the perfecting
amendment be accepted and the amendment be supported.
Among other things the Cox amendment makes it clear that neither this
act nor Webb Kenyon are in anyway designed to supersede any other
provision of the Constitution, such as the first amendment or the
Commerce clause (including the so-called ``dormant'' Commerce clause).
In this regard, the amendment reaffirms the Supreme Court's 1984
decision in Bacchus Imports v. Dias, 468 U.S. 263 (1984), which held
that a state law which imposed an excise tax on sales of liquor but
exempted certain locally produced alcoholic beverages violated the
Commerce clause. The Court concluded that this state legislative scheme
was clearly discriminatory legislation and constituted ``economic
protectionism.'' The Court noted that ``one thing is certain: The
central purpose of the [Twenty-First Amendment] was not to empower
States to favor local liquor industries by erecting barriers to
competition.'' The Court held that the state's law was not designed to
promote temperance but was ``mere economic protectionism.''
The Court has adopted this line of reasoning in striking down
numerous other state liquor laws. See e.g., Brown-Forman Distillers
Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986) (relying
on Bacchus); Healy v. Beer Inst., 491 U.S. 324 (1989) (relying on
Brown-Forman). See also Capital Cities Cable versus Crisp (holding that
a state statute which banned the transmission of out of state alcoholic
beverage commercials by cable television stations in the state violated
the Commerce Clause and was outside of the state's Twenty-First
Amendment power); California Retail Liquor Dealers Ass'n v. Medcal
Aluminum 445 U.S. 97 (1980) (holding that a state wine pricing system
violated Sherman Antitrust Act and noting that the ``Federal Government
retains some Commerce clause authority over liquor); Hostetter v.
Idlewild Bon Voyage, 377 U.S. 324, (1968) (holding that the Commerce
clause prohibited the State of New York from interfering with the sale
of alcohol to departing international airline travelers at a New York
airport and that the argument that the Twenty-First amendment trumps
the Commerce clause where states regulate alcohol is ``patently
bizarre,'' ``an absurd oversimplification,'' and ``demonstrably
incorrect'').
August 2, 1999.
Re amendment to H.R. 2031.
Hon. John Conyers,
Ranking member, House Judiciary Committee, Rayburn House
Office, Washington, DC.
Hon. Bob Goodlatte,
Rayburn House Office Building,
Washington, DC.
Dear Representative Conyers and Representative Goodlatte:
We write to express our strong support for the amendment you
intend to offer tomorrow to H.R. 2031 to clarify that
injunctive relief under the bill is available against certain
shippers of alcohol, and not against providers of
communications services.
This important clarification will avoid confusion and
needless litigation against internet service providers and
other providers of communications services who are not
engaged in the sort of shipments that are the subject of the
bill.
Thank you very much for your leadership on this issue.
Sincerely,
AOL.
Bell Atlantic.
BellSouth.
Commercial Internet eXchange Association.
(``CIX'')
Prodigy.
PSINet.
Mr. GOODLATTE. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I support the perfecting amendment offered by the
gentleman from Michigan (Mr. Conyers), and I commend him for offering
this amendment. The underlying amendment that I have offered makes it
clear that Internet service providers, those who provide interactive
computer service or an electronic communications service, would not be
subject to the injunction provided for in the underlying bill if all
they did was provide the ability to communicate with people and were
not involved in transactions themselves.
The gentleman from Michigan's amendment makes it clear that if that
company, that Internet service provider, is, in fact, themselves
selling the alcoholic beverage, then they would be subject to the
injunction, because it adds the language used by another person to
engage in any activity that is subject to this act to create an
exception to the exception already created for them to the injunction.
The gentleman's language is well taken, I support it, and I urge my
colleagues to support it.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Michigan (Mr. Conyers) to the amendment offered by the
gentleman from Virginia (Mr. Goodlatte).
The amendment to the amendment was agreed to.
Mr. BARR of Georgia. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I do not see the gentleman from California on the
floor. Perhaps the gentleman from Virginia would engage in a colloquy.
I think, getting to the intent, the Congressional intent of the
proposed amendment, as amended, needs further clarification. If I could
engage the gentleman from Virginia in a brief colloquy and elicit from
him if he thinks it is accurate, just a simple yes or no.
If, in fact, under the legislation as proposed and as amended, as
proposed to be amended by the gentleman from California, if State A has
a law on the books that prohibits the sale of alcoholic beverages to
anyone under 21, and the attorney general of that State seeks to go
into Federal court under
[[Page H6872]]
this law simply based on that law to seek an injunction to enjoin a
seller of an alcoholic beverage from State B from shipping that
alcoholic beverage into State A and it being directed to or received by
somebody under 21 in violation of State law, this proposal would still
allow the attorney general of State A to seek injunctive relief. Is
that correct?
Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
Mr. BARR of Georgia. I yield to the gentleman from Virginia.
Mr. GOODLATTE. Mr. Chairman, the one word answer is yes, and that is
certainly my intention in offering this amendment to make sure that the
underlying purpose of the bill is preserved, but make sure that, A,
there are no efforts here to create new taxes or new regulations of
Internet activities, and, B, that there is no unconstitutionally, and I
think that is an important word we use here, unconstitutionally
discriminatory action taken by a State that would disfavor out-of-State
purveyors of these products.
Mr. BARR of Georgia. Mr. Chairman, reclaiming my time, this is the
problem, and maybe the gentleman from Florida could listen also, this
is the problem that I have with this language. It has taken us
approximately half an hour to debate this, trying to get just a simple
yes or no.
If State A has a law on the books that says no sales of alcoholic
beverages to somebody under 21, with this language, does this modify or
in some way limit the ability that the attorney general would have in
the bill as proposed to stop an Internet sale of alcoholic beverage
coming in from another State to that person?
Mr. GOODLATTE. Mr. Chairman, if the gentleman will yield further, it
would not stop the attorney general of a State that wishes to seek an
injunction against a company violating that State's laws, prohibiting
either the sale of alcohol in the State or the sale of alcohol to
minors in that State from continuing to seek that injunction. I
strongly support the gentleman and the gentleman from Florida's efforts
to allow the States to go into Federal court to achieve that
injunction.
Mr. BARR of Georgia. Mr. Chairman, reclaiming my time, is it the
purpose of this amendment to limit the scope of the Webb-Kenyon Act?
Mr. GOODLATTE. Mr. Chairman, it is not the purpose of this amendment
to limit the scope of the Webb-Kenyon Act.
Mr. BARR of Georgia. Does this amendment create any new right of
action to challenge State laws regulating alcohol?
Mr. GOODLATTE. In my opinion, it does not, and it is not my intention
in offering this amendment to in any way affect the rights of the
States to regulate the sale of alcohol in their State as provided by
the Twenty-First Amendment to the Constitution.
Mr. BARR of Georgia. Would this language, as proposed, permit a
defendant in the recipient State or in the shipping State to delay
enforcement of a valid State alcohol law by claiming that the law
creates a barrier to competition, that this language creates a barrier
to competition?
Mr. GOODLATTE. That may be an issue in seeking an injunction, but
certainly is not the intention of this amendment, to allow anybody to
delay State enforcement of State laws controlling the sale of alcohol
in their State borders.
Mr. BARR of Georgia. Finally, are there any State laws today that
would be subject to a challenge under this proposed language?
Mr. GOODLATTE. Would the gentleman repeat the question?
Mr. BARR of Georgia. Are there any State laws today that would be
subject to a challenge under this proposed language by the gentleman
from California?
Mr. GOODLATTE. I am not aware of any laws that would be subject to
them. However, I would say to the gentleman, the way I read section
3(b) of the amendment, that if they would be subject to challenge, they
would have already been subject to challenge as being unconstitutional
to begin with. I think that portion of this amendment reinforces the
gentleman from California's concern that we do not have any
unconstitutionally discriminatory treatment, but, if it exists, I think
it would have been treatable under existing law and certainly would
also be treatable under this law.
Mr. BARR of Georgia. The gentleman from Virginia, who has researched
issue extensively, is not aware of any State laws that would be subject
to challenge under the proposed language today?
Mr. GOODLATTE. None that I know of.
Mr. NETHERCUTT. Mr. Chairman, I move to strike the requisite number
of words.
Mr. Chairman, let me ask the gentleman from Virginia further
clarification. I heard the gentleman say in the colloquy with the
gentleman from Georgia that under the example that the gentleman from
Georgia gave, that the attorney general of a State where there was an
alleged violation relating to a sale to a person under 21, I thought I
heard the gentleman say that if there was a violation, that the State
attorney general would thereafter be enabled under this amendment to
prohibit any further Internet sales into that State, even though it was
to someone over the age of 21. Did I misunderstand the gentleman?
Mr. GOODLATTE. Mr. Chairman will the gentleman yield?
Mr. NETHERCUTT. I yield to the gentleman from Virginia.
Mr. GOODLATTE. The gentleman misheard. The question from the
gentleman from Georgia was whether or not anything in my amendment
would undermine the purpose of the underlying bill, which is to allow
the attorney general to go into Federal Court and to seek an injunction
restraining the sale of alcohol to minors. Then later, or maybe in an
earlier conversation, in reference to a dry State, whether they could
seek an injunction from violating the laws of the State for shipping
any alcohol into the State.
If you have a dry State that prohibits the sale of alcohol, now or in
the future, this amendment would not affect that one way or another.
That is the assurance the gentleman from Georgia wanted, that the
underlying bill would still have the effect the gentleman intends,
which is that the attorney general of that State could go into Federal
court and seek an injunction, but he would not be able to seek an
injunction for the sale of alcohol to an adult unless that sale itself
violated that State law in some way, shape, or form. This amendment
does not in any way change that.
Mr. NETHERCUTT. Mr. Chairman, reclaiming my time, I appreciate the
clarification.
Mr. Chairman, I want to rise in support of the Goodlatte amendment,
which I believe improves significantly on H.R. 2031. The proponents
have argued that this bill does not inappropriately interfere with
Internet commerce. It is true they worked very hard to avoid any
reference to the Internet on this legislation, but the reality is quite
different.
A great many of the wine sales we are discussing occur over the
Internet sites of small wineries. The entrepreneurial owners of these
wineries have learned, like many other small businessmen and women,
that the Internet levels the playing field and makes it possible for
small proprietors to reach customers. These companies cannot afford
sales departments or national advertising. They are forced by their
size to rely on Internet sales. That is what I want to be sure that
this legislation does not prohibit.
This amendment ensures that Internet sales by wineries are not
treated any differently than any other product. The Internet Tax
Freedom Act blocked the imposition of new Internet taxes, and this
amendment ensures compliance with that act.
Proponents of this legislation have called small wineries and brewers
bootleggers and smugglers, suggesting somehow their intent in selling
wine is criminal. To the contrary, these small businesses play by the
rules and only want an opportunity to sell their superior product in
the interstate marketplace. There is no pressing problem of minors
buying cases of ultra-premium wines, and the authors of the legislation
have shown no evidence to the contrary, notwithstanding the few news
clips that they have discussed.
I have talked with wineries in Washington State about the supposed
problem of minors purchasing alcohol. They have told me that in fact
they know virtually all of their customers. Their buyers have in
virtually all cases
[[Page H6873]]
bought wine in person from the winery in the first place. These are
repeat customers who have taken the time to travel all the way to rural
wineries in eastern Washington. Once they get home, these customers
enjoy the superior product that Washington State provides and that
these wineries provide, and they want to order again. Many of these
customers are from other States and would be unable to purchase wines
with this legislation.
Small businesses are the actual target of this legislation. These
small wineries will never be able to ship their product through normal
distributor channels. They simply do not produce enough to be worth the
large distributors' time. These producers bottle 2,000 cases a year, an
insignificant amount to a distributor, but a very significant quantity
when the survival of these small businesses is on the line.
We are adding a winery in our State of Washington every 18 days. It
is a growth industry that creates new jobs in rural areas. These are
small wineries, specialty wineries. Any Member representing
constituencies that rely on Internet telemarketing or catalog sales
should be concerned about where this legislation is taking us.
From the perspective of the States, this bill is all about taxation.
Any company or industry that is perceived to be circumventing State
laws, State taxes through mail sales, could run afoul of such efforts
in the future. This is why the National Conference on Legislators has
opposed this bill, because of a belief that the problem should be
resolved at the State level. I am still concerned about this bill, and
I urge my colleagues to support this amendment.
{time} 1330
Mr. DOOLEY of California. Mr. Chairman, I move to strike the
requisite number of words.
Mr. Chairman, I rise in support of this particular amendment, but I
remain opposed to the underlying bill. I oppose the legislation because
it is clearly anti-small business, and it is also anti-consumer.
We are moving into a new economy, an economy that is giving
opportunities for small business people to participate by offering
their products over the Internet. One of the greatest innovations and
greatest opportunities that we are seeing in E commerce is the fact
that we are almost eliminating all barriers to entry. We are allowing
almost any company to set up and develop a web page, and they can
immediately be in a worldwide business.
What we are doing with this legislation is to preclude a lot of small
business people that are involved in the wine industry, that do not
have the volumes to work with the archaic structure that is currently
in place in many parts of the country to distribute their product, from
having the opportunity to have the access to consumers that they need.
This is clearly not a direction that we should be going, and is clearly
a direction that is inconsistent with the changes in the United States'
economy and the changes in the international economy.
This legislation is a heavy-handed approach that would chill the
rights of adults to purchase wine over the Internet, unfairly
discourage small wineries from marketing their products nationwide
through E commerce, and create a new Federal remedy for a problem that
is already addressed by State and Federal statutes.
Supporters of this legislation contend that the bill is being done at
the behest of States' rights, but nothing could be further from the
truth. As we saw just in the last week, the National Conference of
State Legislatures overwhelmingly passed a resolution opposing this
legislation.
The arguments that this is somehow going to result in more alcohol
being in the hands of minors is also equally without foundation and
substantiation. Nothing could be further from the truth.
I ask my colleagues to oppose this legislation. We ought to be
passing policies which encourage and provide greater opportunity for
more families to enter into business, for more families to live out a
dream. What we are doing here, in so many ways, is impeding that
opportunity.
Also speaking as a wine consumer, I almost think it is un-American
because I might live in a particular part of the country, in a
particular State, that I am precluded from purchasing a bottle of wine
over the Internet. That is not what our Founding Fathers had in mind
when they passed the interstate commerce clauses. They had in mind that
we would allow for free competition that would benefit consumers and
benefit our businesses.
I urge my colleagues to oppose this legislation.
Mr. KOLBE. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, although I rise in support of the pending amendment,
which I think certainly improves the bill, I do want to express my
concerns about the legislation as a whole, H.R. 2031.
This is legislation that directly impacts interstate commerce, and it
drastically tips the scales of commerce in favor of large wholesale
distributors at the expense of consumers and small local vineyards,
which rely heavily on direct sales for their business. This legislation
gives attorneys general the power to sue out-of-State wine and beer
distributors in Federal court for violations of State liquor laws.
As a recent editorial in the Wall Street Journal makes clear, giving
State attorneys general the power to sue out-of-State vineyards in
Federal court can lead to nothing but political mischief. What better
way for a politically ambitious attorney general to build political
support at home than to sue out-of-State shippers on behalf of local
wholesalers to help keep the competition out?
The 21st amendment was designed to give States the power to regulate
alcohol sales within their States, and to ban it altogether, if they
choose. It was not designed to give States the power to keep the wine
sales of some distributors out while allowing others in. Such a result
flies directly in the face of the interstate commerce clause by
establishing special interest protections for local distributors.
Any resident who seeks to buy a rare or obscure vintage of wine not
offered by his local distributor with this legislation is simply out of
luck. The legislation is anticompetitive, it is anti-consumer.
Unfortunately, it sounds good.
This legislation would do great mischief. It injects the strong arm
of the Federal courts into an area of commerce that is best left to the
States. It imposes unnecessary Federal interference in the enforcement
of State laws, and gives the State Attorney General a new weapon, the
Federal court, to favor local over interstate commerce.
The result will not balance the scales of justice. It will, instead,
tip those scales against consumers who have found in the Internet a
cornucopia of goods and services heretofore unknown to them.
I urge us to defeat this legislation.
Amendment Offered by Mr. Barr of Georgia to the Amendment Offered by
Mr. Goodlatte, as Amended
Mr. BARR of Georgia. Mr. Chairman, I offer an amendment to the
amendment, as amended.
The Clerk read as follows:
Amendment offered by Mr. Barr of Georgia to the amendment
offered by Mr. Goodlatte, as amended:
On page 1 of the amendment offered by Mr. Goodlatte, at
line 16, strike the words ``thus'' and continuing to the end
of line 17, and inserting the following: ``erecting barriers
to competition, and constituting mere economic
protectionism.''
Mr. BARR of Georgia. Mr. Chairman, this simply cleans up the
language.
It struck a number of us, in trying to analyze the final language on
this page of the amendment offered by the gentleman from Virginia (Mr.
Goodlatte) that the words ``thus erecting barriers to competition'' was
unusual language to use in a statutory provision. Therefore, what we do
is simply keep the same intent, but clarify it so it reads, ``erecting
barriers to competition and constituting mere economic protectionism.''
We are just taking out and changing the grammar so that it is
consistent with the earlier language in the particular provision.
Mr. Chairman, I would ask the gentleman from Virginia (Mr. Goodlatte)
if he has any problem with the clarifying language.
Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
Mr. BARR of Georgia. I yield to the gentleman from Virginia.
Mr. GOODLATTE. Mr. Chairman, I thank the gentleman for yielding. This
[[Page H6874]]
language is perfectly fine with us. We have no objection to the
amendment, and urge its adoption.
Mr. DAVIS of Virginia. Mr. Chairman, I rise today to urge my
colleagues to support the Goodlatte/Conyers/Davis amendment to the
Twenty-First Amendment Enforcement Act because it is essential to
ensuring that this legislation does not restrict the growth of Internet
commerce. This amendment clarifies first that the Act does not modify
or supersede the Internet Tax Freedom Act that we worked hard to enact
last year under the leadership of my colleague Representative Cox.
Equally important is the clarification that an injunctive relief action
may not be sought against an Internet Service Provider. Indeed,
enforcement approaches such as injunctions to block Internet sites can
seriously disrupt lawful Internet communications, and slow the
operations of a service provider's network for all other uses.
In sponsoring this clarifying amendment today with my colleagues, I
want to alleviate the concern I had that in its current form, H.R. 2031
could be misinterpreted as authorizing injunctions by the states
against communications companies who are not involved in the shipping
or importing of liquor, but are simply used by third parties for
communications purposes. I want to ensure that in enacting this
legislation, we do not implement a burdensome Federal enforcement
action that would hamper the growth of the Internet. Not just when it
comes to the sale of alcohol over the Internet, but we must consider
the message we send to business--from the small entrepreneurs to large
industry--when they make commercial decisions about how they use the
Internet to do business.
While the Twenty-First Amendment Enforcement Act does not
specifically mention the Internet, there is no doubt that it is the
inmate nature of the Internet that has spurred the call for this
legislation. It is my firm belief that Federal policy must use market-
driven principles as the underpinning of any enacted legislation
affecting the Internet. Despite the Federal Government's initiation and
financing of the Internet, its expansion and diversity has been driven
mainly by the private sector. Each piece of legislation that will
change people's commercial behavior must be thoroughly examined and the
consequences understood, lest we unleash a federal mandate or
restriction that will harm the Internet's success and growth as the
primary tool for communication between people and business.
The Federal Government can be the leader in developing incentives to
move the Internet forward as the primary tool of businesses, educators,
scholars, students, and the ordinary citizen. We must ensure the no
Government can hinder that development. I ask my colleagues to support
the Goodlatte/Conyers/Davis/Boucher/McCollum/Dunn amendment and
guarantee the continued growth of the Internet as a tool of business.
Mr. CHAMBLISS. Mr. Chairman, today, I rise in support of the Twenty-
First Amendment Enforcement Act, which will provide individual states
the ability to enforce statutes regulating the distribution and sale of
alcoholic beverages within their border, a right guaranteed by the
Twenty-First Amendment.
Most states, including my home state of Georgia, employ a three-
tiered system of alcohol distribution to control the distribution and
sale of alcoholic beverages within their borders. Under this system
alcohol producers go through state-licensed wholesalers, who must go
through retailers, who alone may sell to consumers. Furthermore,
Georgia is one of nineteen ``express prohibition'' states that
expressly outlaw direct shipments of alcohol from out-of-state.
Georgia's system has proven quite effective in combating illegal
alcohol sales to minors.
While Georgia's alcohol statutes have proven successful throughout
the years, the recent development of electronic commerce via the
Internet has presented new challenges to preventing illegal shipments
of alcohol into our state. Confronted with this new challenge, as well
as the difficulty of enforcing its laws in court, Georgia in 1997
enacted statutes making the illegal shipment of alcoholic beverages
within its borders a felony. This action was necessary to ensure the
state would have jurisdiction over violators of its state liquor
transportation laws.
I believe if states are unable to effectively enforce their laws
against illegal interstate shipment of alcoholic beverages, they may
also lose some ability to police sales to underage purchasers. Illegal
direct shipments also deprive the state of the excise and sales tax
revenue that would otherwise be generated by a regulated state, placing
regulated businesses at a distinct commercial disadvantage. Finally, if
direct shippers violate state law, they exclude themselves from other
state obligations such as submitting to quality control inspections,
licensing requirements, and complying with other restrictions placed
upon sellers of alcohol.
As an advocate of smaller government and state's rights, I favor a
resolution to this problem that does not mandate changes to any
existing state laws or alter existing case law interpreting the
Commerce clause of the Constitution. I believe the Twenty-First
Amendment Enforcement Act is the common-sense solution to this problem
as it allows Georgia the authority to seek enforcement, through a
federal district court injunction, of its state laws regulating the
importation or transportation of intoxicating liquors without
infringing on states' rights or creating Constitutional confusion.
For these reasons, I support the passage of H.R. 2031, the Twenty-
First Amendment Enforcement Act, and urge its adoption.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Georgia (Mr. Barr) to the amendment offered by the
gentleman from Virginia (Mr. Goodlatte), as amended.
The amendment to the amendment, as amended, was agreed to.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Virginia (Mr. Goodlatte), as amended.
The amendment, as amended, was agreed to.
The CHAIRMAN. Are there further amendments to the bill?
Amendment Offered by Ms. Lofgren
Ms. LOFGREN. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Ms. Lofgren:
Page 21, after line 17, insert the following (and make such
technical and conforming changes as may be appropriate):
``(2) the term `firearm' shall have the meaning given such
term in section 921(a) of title 18 of the United States Code;
Page 3, line 128, insert ``or firearm'' after ``liquor''.
Mr. SCARBOROUGH. Mr. Chairman, I reserve a point of order on the
amendment.
The CHAIRMAN. A point of order is reserved by the gentleman from
Virginia (Mr. Scarborough) to the amendment offered by the gentlewoman
from California (Ms. Lofgren).
Ms. LOFGREN. Mr. Chairman, I offer this amendment on behalf of
myself, as well as the gentlewomen from New York, Mrs. McCarthy and
Mrs. Lowey.
As I mentioned earlier, Mr. Chairman, in a discussion on the Cox
amendment, I do have concerns about the underlying amendment and its
ability to constrain interstate commerce unreasonably. However, if this
House is insistent upon pursuing the remedies outlined in the
Scarborough bill, I would suggest that we ought to provide those tools
equally to the chief law enforcement officers of our States in the
enforcement of gun laws.
As many of my colleagues know, the State of California has recently
passed, by wide margins in the assembly and the State Senate, and these
measures have been signed into law by the Governor, a whole series of
gun safety measures that I believe put California on the cutting edge
of gun safety measures among the 50 States.
It seems to me that, if we are going to give the Attorneys General of
the 50 States the ability to go into Federal court to protect their
citizens from $20 bottles of cabernet, we ought to be at least as
willing to give the attorney general of the State of California the
ability to go into Federal court to protect his citizens against the
Tech-DC9, the AK-47, and other weapons of mass destruction.
Mr. Chairman, as we know, we failed to come together across the aisle
on a bipartisan basis to adopt gun safety measures earlier in this
Congress, but we have an opportunity here to at least allow those
States that have been more progressive and more receptive to the people
of the country than has the United States Congress to have an
additional tool to protect the citizens of the States who have forward-
thinking State legislatures and forward-thinking Governors.
Mr. CONYERS. Mr. Chairman, will the gentlewoman yield?
Ms. LOFGREN. I yield to the gentleman from Michigan.
Mr. CONYERS. Mr. Chairman, I want to commend the gentlewoman from
California (Ms. Lofgren), who finds it, as do many of us, ironic that
this House apparently does not demonstrate the same concern for the
dangers of interstate shipment of firearms as they claim to have about
the interstate shipment of alcohol.
If we opened the Federal courts to State alcohol suits, we should at
least do the same for firearms. I thank the gentlewoman for making the
connection in this debate.
Ms. LOFGREN. I thank the gentleman from Michigan (Mr. Conyers), the
ranking member.
[[Page H6875]]
I would note, as to the issue of germaneness, noting that the
gentleman from Florida (Mr. Scarborough) has reserved a point of order,
that it is my contention that the amendment is germane.
As we know, the underlying bill deals with issues that are governed
by the Alcohol, Tobacco, and Firearms Bureau, as is the issue of guns.
It seems to me, if we are going to give a tool to States to use the
Federal courts for an item that is regulated by ATF, to wit, bottles of
cabernet, that we ought to provide that same remedy and tool to States
to deal with another item which is within the jurisdiction of ATF, to
wit, firearms, as defined in title 18 of the U.S. Code.
I would hope that we might move apace to adopt this resolution. I
have two teenage children. They will be starting high school again this
fall. They will be starting school, before this House finishes our
annual recess. I would like to be able to tell them and to tell their
classmates that the House of Representatives has done something,
anything rational, to preserve and to enhance gun safety in America. I
think we owe that to the mothers and fathers across the United States.
Although we have not been able previously to come together, although
we have not been able to support the gun safety measures that have
passed the United States Senate, although we have not been able to
deliver that level of safety to the American people, we could act today
and at least do this much.
So I am hopeful that we can approve this amendment. It is so
important to me that I believe I would vote for the underlying bill,
despite the reservations I have, in order to get this important new
enforcement tool for State Attorneys General.
Point of Order
Mr. SCARBOROUGH. Mr. Chairman, I ask to speak on the point of order,
the fundamental purpose of the bill is to provide the attorney general
of any State with the authority to bring a civil action to the United
States district court to enjoin any person or entity that the attorney
general has reasonable cause to believe is engaged in any act that
would constitute a violation of State law regulating the importation or
transportation of any intoxicating liquor.
The fundamental purpose of the amendment is to expand the single
class of merchandise covered by this bill, to wit, intoxicating liquor,
by adding another class of merchandise, to wit, firearms, to the one
class covered by this bill.
A distinction also exists that the distinguished ranking member of
the Committee on the Judiciary did not touch on when he said we ought
to be able to blur alcohol and firearms together in this sort of stew.
The main difference is that none of us here support the illegal
transportation of firearms across State lines.
{time} 1345
What this amendment does is this amendment tries to bring in the gun
amendments. We all agree illegal transportation of firearms across
State lines should not be permissible. Unfortunately, illegal alcohol
sales being transported across State lines is still being defended by
many people here today.
According to House Practice Germaneness section 9: ``One individual
proposition is not germane to another individual proposition.'' This is
clearly one individual proposition being added to another. Accordingly,
Mr. Chairman, the amendment is not germane, and I insist on my point of
order.
The CHAIRMAN. Does the gentlewoman from California (Ms. Lofgren)
desire to be heard on the point of order?
Ms. LOFGREN. Yes, Mr. Chairman.
Mr. Chairman, I believe that the amendment is germane. I would ask,
clearly even if there is a question as to germaneness, it does not need
to be raised if all Members agree that the underlying measure should be
supported by us all. I was glad to hear the comments of the gentleman
from Florida (Mr. Scarborough) that none of us support the illegal
transport of firearms across State laws. The question is whose laws? In
California, it is now, because of what the State legislature has done,
it is illegal. TEC-9s are covered. TEC DC-9s are covered.
That is not the case under Federal law. So this would allow those
States' Attorneys General, the State of California, to go to Federal
court to enforce California State laws vis-a-vis firearms.
I hope that we might be able to come together, the gentleman from
Florida (Mr. Scarborough) and I, to allow this amendment to be offered
and adopted; and that if he would withdraw his point of order, we need
not discuss the germaneness issue any further.
I would hope that he would do that since, if I understood him
correctly, he agrees or says he agrees with the intention of the
amendment. Therefore, I would hope, and I do not know if he wishes to
respond, but I would hope that he might withdraw his objection on this
point.
The CHAIRMAN. Does the gentleman from Georgia (Mr. Barr) desire to be
heard on the point of order?
Mr. BARR of Georgia. I do, Mr. Chairman. Mr. Chairman, I am not quite
sure whether the gentlewoman from California (Ms. Lofgren) correctly
characterized the earlier remarks of the gentleman from Florida (Mr.
Scarborough) who has sponsored the underlying bill here and who has
risen and asserted and insisted on a point of order against the
amendment of the gentlewoman from California.
I think the gentleman from Florida has made very clear that he is
opposed to this amendment. I think the point that the gentleman was
making earlier is a very accurate one; and that is that Federal law
already provides that, when one ships a firearm in interstate commerce,
it has to be shipped consistent with State laws, and it has to be
shipped, for example, to a licensed firearms dealer if it is shipped
through the mails.
There already, in other words, are very sever limitations on the
interstate shipment of firearms. And to open that Pandora's box or that
can of worms now to insert into a piece of legislation that is very
specific, very clear, very limited, very reasonable, a whole new issue
on which there have not been hearings, I mean, the opponents of the
bill of the gentleman from Florida earlier were bemoaning the fact,
erroneously as it turns out, bemoaning the fact that there had not been
hearings and debate and information solicited on his proposed piece of
legislation. In fact, as the gentleman from Florida correctly stated,
there have been hearings. There has been information. There has been
evidence to support his legislation.
What the gentlewoman from California is now proposing to do is to
raise another whole issue which has not been debated certainly in the
context of the intent of this legislation.
I believe the gentleman from Florida is very correct when he points
respectfully to the Chair on section 9 of House Practice on
Germaneness. The proposed amendment from the gentlewoman from
California has nothing whatsoever to do with the intent or the effect
of the underlying bill proposed by the gentleman from Florida.
I rise in support of the reservation on this and I join the gentleman
from Florida (Mr. Scarborough) in insisting on his point of order. I
respectfully urge the Chair to strike the amendment as not germane and
out of order.
The CHAIRMAN. The Chair is prepared to rule on the point of order.
The bill permits a State Attorney General to bring a civil action in
Federal court against a person who has violated a State law regulating
the importation and transportation of intoxicating liquor.
The amendment offered by the gentlewoman from California attempts to
create an additional Federal cause of action against a person who
violates a State law regulating firearms.
As stated in section 798a of the House Rules and Manual, an amendment
must address the same subject as the bill under consideration.
This amendment addresses a separate subject matter (regulating
traffic in firearms) than that addressed by the bill (regulating
traffic in intoxicating liquors).
Accordingly, the amendment is not germane and the point of order is
sustained.
Amendment Offered By Ms. Lofgren
Ms. LOFGREN. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Ms. Lofgren:
On page 6 at the end, insert the following:
[[Page H6876]]
(c) Application of Amendment with regard to Certain
Violations of Law. This Act and the amendment made by this
act shall take immediate effect with regard to any violation
of a state law regulating the importation or transportation
of any intoxicating liquor which results from any violation
of a state's firearms laws.
Mr. SCARBOROUGH. Mr. Chairman, I reserve a point of order.
The CHAIRMAN. The gentleman from Florida reserves a point of order on
the amendment.
Ms. LOFGREN. Mr. Chairman, I believe that the amendment offered by
myself and by the gentlewoman from New York (Mrs. McCarthy) and the
gentlewoman from New York (Mrs. Lowey) adequately addresses the
germaneness issue that was the subject of the point of order on the
prior amendment we offered.
There are a series of cases that relate to the interplay between
alcohol laws of the States and firearms. I would note for the Record
and will include for the Record two cases: first, the case of Davis
versus State of Alabama Alcohol Beverage Control Board wherein the
court found that the ABC Board in Alabama was able to refuse the
renewal of liquor licenses for good cause including the discharge of
firearms in the parking lot of the facility in question.
Second, a case from Illinois, Sip and Save Liquors versus Richard M.
Daley, Mayor, cited at 657 N.E.2d. 1, provides that the Commission may
take notice of gun law violations of the State in the proceedings
instituted pursuant to the Illinois liquor laws.
This amendment would allow State AGs to utilize the Federal courts to
enforce the State gun laws relative to liquor law violations. Let me
give an example where this might be pertinent. For example, as I
mentioned earlier, in California, TEC-DC9s are no longer a legal
weapon.
It would be possible for a State AG, Mr. Lockyer, to go into Federal
Court and to seek removal of the liquor license or the license of a
winery when the violation of the winery owner related to the violation
of the State weapons laws. This may be a niche, and it is a niche I
propose only because of the germaneness issue, given the prior ruling
of the Chair, and given the unwillingness of those who raised the
germaneness issue to waive or withdraw it.
But, once again, as I argued earlier, if we are able to do something,
anything to enhance the Nation's gun safety laws, we should do it. As I
mentioned before, school will commence all across America before our
recess has ended. This is one of the last opportunities the House of
Representatives will have before our recess to do something, to do
something reasonable, to do something responsible to enhance gun safety
laws.
I would hope that we could come together across the aisle on a
bipartisan basis to do even this modest thing to help guarantee the
safety of the children of this country and the children of the high
schools in California, even if it is only some modicum of increased
safety when they return to school in September.
(Cite as: 657 N.E.2d 1, 212 Ill.Dec. 306)
SIP & SAVE LIQUORS, INC., an Illinois corporation, Plaintiff-Appellant,
v. Richard M. DALEY, mayor and local liquor control commissioner of the
city of Chicago, and William D. O'Donaghue, chairman of the License
Appeal Commission, Defendants-Appellees
No. 1-93-0760
Appellate Court of Illinois, First District, Third Division, Sept. 6,
1995, Rehearing Denied Nov. 9, 1995
Liquor retailer sought review of revocation of retailer's
license by mayor and city liquor control commissioner. The
Circuit Court, Cook County, Edward C. Hofert, J., denied
relief, and retailer appealed. The Appellate Court, Cerda,
J., held that: (1) municipal code section placing time limit
on issuance of revocation applied to liquor licenses; (2)
state's five-day time limit, not code's 60-day limit, was
applicable to revocation of liquor license; (3) failure to
issue revocation within five days did not deprive commission
of jurisdiction; (4) retailer was not deprived of due
process; and (5) revocation was warranted.
Affirmed.
[1] INTOXICATING LIQUORS--106(1)--223k106(1)
City code section allowing mayor to suspend or revoke any
license issued under code and state reasons for any
revocation or suspension within 60 days was applicable to
liquor licenses. Chicago, Ill., Municipal Code Sec. Sec. 4-4-
280, 4-60-070.
[1] INTOXICATING LIQUORS--108.1--223k108.1
City code section allowing mayor to suspend or revoke any
license issued under code and state reasons for any
revocation or suspension within 60 days was applicable to
liquor licenses. Chicago, Ill., Municipal Code Sec. Sec. 4-4-
280, 4-60-070.
[2] INTOXICATING LIQUORS--10(2)--223k10(2)
Liquor control is subject to concurrent jurisdiction of
state and local government; home-rule municipalities may
legislate in area of liquor control, except as restricted by
state, pursuant to home-rule provisions of state
constitution. S.H.A. Const. Art. 7, Sec. 6.
[2] INTOXICATING LIQUORS--11--223k11
Liquor control is subject to concurrent jurisdiction of
state and local government; home-rule municipalities may
legislate in area of liquor control, except as restricted by
state, pursuant to home-rule provisions of state
constitution. S.H.A. Const. Art. 7, Sec. 6.
[3] INTOXICATING LIQUORS--11--223k11
State statute requiring that revocation of liquor license
be issued within five days of hearing prevailed over
municipal code section imposing 60-day time limitation for
issuing revocation, as code expanded state's time limit and
was thus inconsistent with state law. S.H.A. 235 ILCS 5/7-5;
Chicago, Ill., Municipal Code Sec. 4-4-280.
[3] INTOXICATING LIQUORS--15--223k15
State statute requiring that revocation of liquor license
be issued within five days of hearing prevailed over
municipal code section imposing 60-day time limitation for
issuing revocation, as code expanded state's time limit and
was thus inconsistent with state law. S.H.A. 235 ILCS 5/7-5;
Chicago, Ill., Municipal Code Sec. 4-4-280.
[4] ADMINISTRATIVE LAW AND PROCEDURE--489.1--15Ak489.1
City liquor control commission's failure to issue reasons
for revocation within five-day period prescribed by state law
did not deprive commission of jurisdiction to revoke license,
as statute setting forth five-day period was directory, not
mandatory, Liquor Act was to be liberally construed, licensee
was not injured by late decision, and Liquor Act did not
provide that jurisdiction was lost. S.H.A. 235 ILCS 5/1-2, 7-
5.
[4] INTOXICATING LIQUORS--108.9--223K108.9
City liquor control commission's failure to issue reasons
for revocation within five-day period prescribed by state law
did not deprive commission of jurisdiction to revoke license,
as statute setting forth five-day period was directory, not
mandatory, Liquor Act was to be liberally construed, licensee
was not injured by late decision, and Liquor Act did not
provide that jurisdiction was lost. S.H.A. 235 ILCS 5/1-2, 7-
5.
[5] STATUTES--227--361k227
Word ``shall'' generally is mandatory and not directory,
but it can be construed as meaning ``may'' depending on
legislative intent.
[6] STATUTES--227--361k227
Generally, statutory regulations designed to secure order,
system and dispatch in proceedings, and by disregard of which
rights of interested parties cannot be injuriously affected,
are not mandatory unless they are accompanied by negative
language that imports that acts required shall not be done in
any other manner or time than designated.
[7] STATUTES--227--361k227
If statute is mandatory, it prescribes result that will
follow if required acts are not done; if statute is directory
then its terms are limited to what is required to be done.
[8] STATUTES--227--361k227
Failure to comply with mandatory provision will render void
proceeding to which provision relates, but strict observance
of directory provision is not essential to validity of
proceedings.
[9] ADMINISTRATIVE LAW AND PROCEDURE--670--15Ak670
Liquor retailer waived issued that he was denied due
process because shotgun which retailer was charged with
possessing in license revocation proceeding was destroyed and
police officer was allowed to testify to its measurement,
where retailer did not object to testimony, and did not make
motion in limine at hearing, and did not raise issue until
penalty hearing.
[9] INTOXICATING LIQUORS--108.10(4)--223k108.10(4)
Liquor retailer waived issue that he was denied due process
because shotgun which retailer was charged with possessing in
license revocation proceeding was destroyed and police
officer was allowed to testify to its measurement, where
retailer did not object to testimony, did not make motion in
limine at hearing, and did not raise issue until penalty
hearing.
[10] CONSTITUTIONAL LAW--287.2(3)--92k287.2(3)
Liquor retailer received sufficient notice of charge of
possessing sawed-off shotgun, thus, retailer was not denied
due process in license revocation proceeding. U.S.C.A. Const.
Amend. 14.
[10] INTOXICATING LIQUORS--108.2--223k108.2
Liquor retailer received sufficient notice of charge of
possessing sawed-off shotgun, thus, retailer was not denied
due process in license revocation proceeding. U.S.C.A. Const.
Amend. 14.
[11] INTOXICATING LIQUORS--106(4)--223k106(4)
Presence of sawed-off shotgun on premises of liquor
retailer warranted revocation of liquor license; retailer was
not improperly found guilty of failing to register gun which
was not registerable, location of shotgun permitted inference
that retailer had control
[[Page H6877]]
of gun, and factors both in favor of and against revocation
existed.
[12] INTOXICATING LIQUORS--108.10(8)--223k108.10(8)
Appellate court may reverse licensing decision of liquor
control commission only if manifest weight of evidence
supports opposite conclusion.
*2 **307 Lamendella & Daniel, Chicago (Joseph A.
Lamendella, Kris Daniel, of counsel), for appellant.
Corp. Counsel, Chicago (Susan S. Sher, Lawrence Rosenthal,
Benna Ruth Solomon, Mardell Nereim, of cousel), for
appellees.
Justice CERDA delivered the opinion of the court:
Plaintiff, Sip & Save Liquors, Inc., an Illinois
corporation, appeals from the revocation of its retail liquor
license. It argues on appeal that: (1) the City of Chicago
Local Liquor Control Commission (the commission) lost
jurisdiction when it did not timely issue a decision; (2)
plaintiff was denied due process; and (3) revocation was
an unreasonable penalty.
One of the issues in this case is whether the City of
Chicago Local Liquor Control Commission lost jurisdiction to
impose any sanction when it failed to render a decision
within the mandatory 15-day period prescribed by section 4-4-
280 of the Chicago Municipal Code (the Code) (Chicago
Municipal Code Sec. 4-4-280 (1990)) and the holding in Puss N
Boots, Inc. v. Mayor's License Commission (1992), 232 Ill.
App. 3d 984, 173 Ill. Dec. 676, 597 N.E. 2d 650 or whether
instead the Liquor Control Act of 1934 (235 ILCS 5/1-1 et
seq. (West 1992)) (the Liquor Act) of the State of Illinois
was applicable.
The commission charged in a notice of hearing to plaintiff
that on August 19, 1990, the Code was violated when Thomas
Shubalis, plaintiff's president, possessed an unregistered
Winchester .22-caliber rifle, a Harlin 20-gauge shotgun, a
Ruger .357 Magnum firearm, and a .25-caliber automatic
firearm. It was also charged that Shubailis violated State
law by possessing firearms without possessing an Illinois
firearm owner's identification card. The notice also charged
that on August 29, 1990, plaintiff sold or gave alcoholic
beverages on the licensed premises to a person under the age
of 21 years.
The notice stated that the city would present evidence of
previous acts of misconduct. Attached as exhibits were orders
of dispositions of previous charges: (1) sale to a minor on
November 4, 1983, resulting in a warning on July 18, 1984;
(2) sale to a minor on January 11, 1985, resulting in a
warning on July 17, 1985; and (3) sale to a minor on August
31, 1985, resulting in a $300 voluntary fine on April 29,
1986.
A hearing was held before the commission on January 17,
February 14, and April 4, 1991.
Chicago police officer Anthony Wilczak testified at the
hearing that he responded to a burglary alarm on August 19,
1990, at plaintiff's liquor store. He searched the premises
and found a .357 Magnum revolver and a .25-caliber automatic
pistol below the cash register on the shelf. He asked
Shubalis *3**308 about the guns, and Shubalis said that the
guns were his brother's. Shubalis also said that the did not
know where the .22-caliber rifle came from and that the
sawed-off shotgun belonged to friend of his brother. He did
not find a firearm owner's identification card when he
searched Shubalis nor did he find a city registration for any
of the weapons.
Chicago police officer Sharon Gaynor testified at the
hearing that she recovered in the search a sawed-off 20-gauge
shotgun and a Winchester rifle, which were found in a large
safe in a back storage area. The safe was open, and the guns
were lying in the safe.
On April 26, 1991, Richard M. Daley, mayor and local liquor
control commissioner of the city of Chicago, revoked
plaintiff's city of Chicago retail liquor license. The order
stated that the proceedings were instituted pursuant to the
Liquor Act (Ill. Reve. Stat. 1989, ch. 43, pars. 93.9 through
195). The order made the following findings: (1) on or about
August 19, 1990, the licensee possessed unregistered firearms
(Harlin 20-gauge shotgun, Ruger .357 Magnum firearm, and .25-
caliber automatic firearm) on the licensed premises in
violation of former section 11.1-13 of chapter 11.1 of the
code (Chicago Municipal Code Sec. 11.1-13 (1983) (now
codified as Chicago Municipal Code Sec. 8-20-150 (1995)));
(2) on or about August 19, 1990, the licensee possessed
firearms on the licensed premises without possessing a
firearm owner's identification card issued by the State of
Illinois in violation of State law; and (3) on or about
August 29, 1990, plaintiff sold or gave alcoholic beverages
on the licensed premises to a person under 21 years of age in
violation of former section 147-14(a) of chapter 147 of the
Code (Chicago Municipal Code Sec. 147-14(a) (1983) (now
codified as Chicago Municipal Code Sec. 4-60-140(a) (1993))).
Plaintiff appealed to the City of Chicago License Appeal
Commission (the appeal commission), which affirmed Daley's
action on September 30, 1991. Plaintiff's petition for
rehearing was denied by the appeal commission on November 6,
1991.
On December 6, 1991, plaintiff filed a complaint in
administrative review against defendants Daley and William D.
O'Donaghue, chairman of the appeal commission.
On May 6, 1992, the trial court found the following: (1)
finding charge number one (Harlin 20-gauge shotgun) was
sustained; (2) the other findings were not sustained; (3) the
matter was remanded to the commission to consider its order
of revocation with respect to finding against the plaintiff
on charge number one.
On June 6, 1992, the commission reconfirmed the revocation
of the license based on the finding that the owner possessed
an unregistered Harlin 20-gauge shotgun.
On August 14, 1992, the trial court reversed the order
reconfirming revocation and remanded the matter for a hearing
by the commission on the penalty in view of the fact that the
charges were modified. The commission was ordered not to
consider the charges that were not sustained by the trial
court. It was also ordered that both parties would have a
full hearing in aggravation and mitigation.
A hearing on the penalty was held on October 8, 1992,
before the commission. During Chicago police officer Lawrence
Seidler's testimony, plaintiff made an oral motion in limine
based on the following: (1) the charge was the failure to
exhibit a registration certificate and not the possession of
a sawed off shotgun; and (2) the shotgun was destroyed by the
police. The motion was denied.
Officer Seidler testified that the barrel of the shotgun
was 14 inches long and that a portion of the stock was sawed
off.
Thomas Shubalis testified at the hearing that the liquor
store had been in business at the same location for 17 years.
He recognized the shotgun and had seen it once before on the
premises. He did not believe that the shotgun was on the
premises on August 19, 1990. The shotgun had been brought in
by a neighbor who was moving and who was going to pick up the
gun in a *4 **309 couple of days. The shotgun had been on the
premises in a storeroom safe for a number of years but he
thought it had long been removed and never even thought of
it. The safe was not used, and it was hardly visible because
there were liquor boxes in front of it. He never had occasion
to open the safe between the time he saw the shotgun and the
time of the burglary. He had no registration for the shotgun.
On October 14, 1992, plaintiff moved in the trial court to
reverse all orders of the commission and the appeal
commission on the basis that the mayor lost jurisdiction to
revoke the liquor license. The hearings had terminated on
April 4, 1991, and the decision was rendered on April 26,
1991, which was later than the mandatory 15-day period.
On October 16, 1992, the commission sustained ``charge
one'' and revoked the license. The following findings of fact
were made. Shubalis admitted that he first saw the sawed-off
shotgun eight or nine years before the burglary and that he
did nothing to assure that the shotgun was removed from the
premises. Shubalis's testimony that the gun was hidden in the
old safe and that he did not even think about it after first
seeing it was not credible. The licensee had a history of
three prior violations, one of which resulted in a fine of
$300. The weapon was an extremely dangerous type of weapon.
In light of the serious nature of the offense, revocation was
appropriate.
On January 22, 1993, the trial court denied plaintiff's
motion to reverse and to reinstate the license, denied
plaintiff's motion to reverse the post-remand order of
revocation, and affirmed the order of revocation.
Plaintiff filed a notice of appeal on February 19, 1993.
i. jurisdiction
Plaintiff first argues that the commission lost
jurisdiction to impose any sanction when it failed to render
a decision within the 15 days following the hearing as
prescribed by section 4-4-280 of the Code (Chicago Municipal
Code Sec. 4-4-280 (1990)), which was amended in 1992 to
expand the time period to 60 days (Journal of the Proceedings
of the City Council of the City of Chicago, July 29, 1992, at
20041-42). If the proceedings were initiated exclusively
under the Liquor Act, then the procedural requirements of
section 7-5 of the Liquor Act were not met (235 ILCS 5/7-5
(West 1995)). The term ``shall'' was mandatory and not
directory.
[1] The first issue is whether section 4-4-280 of the Code
applied to the revocation of plaintiff's liquor license. It
states in part:
``The mayor shall have the power to * * * suspend or revoke
any license issued under the provisions of this code * * *.
If the mayor shall determine after [a] hearing that the
license should be revoked or suspended, within 60 days he
shall state the reason or reasons for such determination in a
written order or revocation or suspension * * *.''
According to the Journal of the Proceedings of the City
Council of the City of Chicago, the ordinance was:
``intended to ratify prior actions of the Mayor in revoking
licenses and * * * shall apply to all cases in which licenses
have been revoked * * * within 60 days of the conclusion of a
hearing required by Section 4-4-280 * * *.'' Journal of the
Proceedings of the City Council of the City of Chicago, July
29, 1992, at p. 20042.
Section 4-4-280 states that it is applicable to the
revocation of any license, and it does not exempt liquor
licenses. Section 4-60-070 of the Code states that a liquor
license shall be issued subject to chapter 4-4, the chapter
in which section 4-4-280 appears. [FN1] (Chicago Municipal
Code Sec. 4-60-070 (1994).) We find that section 4-4-280
covers liquor licenses.
``FN1. Section 4-60-070(a) of title four of the Code states
in part that ``[a] city retailer's license for the sale of
alcoholic liquor shall be issued by the local liquor control
commissioner, subject to the provisions of an act entitled
`An Act relating to alcoholic liquor,' approved January 31,
1934, as amended, and subject to the provisions of this
chapter and Chapter 4-4 relating to licenses in general not
inconsistent with the law relating
[[Page H6878]]
to alcoholic liquor.'' (Emphasis added.) Chicago Municipal
Code Sec. 4-60-070 (1994).''
*5 **310 The next issue is whether section 7-5 of the
Liquor Act states with its requirement that a statement of
reasons for revocation be given within five days of hearing
controls over Code section 4-4-280's time frame of 60 days.
Section 7-5 of the Liquor Act states in part:
``The local liquor control commissioner shall within 5 days
after [a] hearing, if he determines after such hearing that
the license should be revoked or suspended or that the
licensee should be fined, state the reason or reasons for
such determination in a written order * * *.'' 235 ILCS 5/7-5
(West 1995).
[2] Liquor control is subject to concurrent jurisdiction of
the State and local government. (Easter Enterprises, Inc. v.
Illinois Liquor Control Commission (1983), 114 Ill. App. 3d
855, 858-59, 70 Ill. Dec. 666, 449 N.E. 2d 1013.) Home-rule
municipalities such as Chicago may legislate in the area of
liquor control, except as restricted by the State, pursuant
to the home-rule provisions of the 1970 Illinois Constitution
(Ill. Cont. 1970, art. VII, Sec. 6). (Easter, 114 Ill. App.
3d at 858-59, 70 Ill. Dec. 666, 449 N.E. 2d 1013.) Courts
have approved local liquor ordinances in home-rule
municipalities that were either more restrictive than State
statutes on the same subject matter or that placed additional
requirements on licenses not found in State statutes. Easter,
114 Ill. App. 3d at 859, 60 Ill. Dec. 666, 449 N.E. 2d 1013.
[3] Section 4-60-070 states that provisions of the Code
chapter relating to licenses in general would govern liquor
licenses except when they are inconsistent with ``the law
relating to alcoholic liquor.'' (Chicago Municipal Code
Sec. 4-60-070 (1994).) The ordinance also states that the
license was subject to the provisions of the Liquor Act. The
Liquor Act enumerates in section 4-1 certain powers of
municipalities including the power ``to establish * * *
regulations and restrictions upon the issuance of an
operations under local licenses not inconsistent with law as
the public good and convenience may require.'' 235 ILCS 5/4-1
(West 1993).
The Code's time limit is not just different than State law
but expands a time limit established by State law. The longer
time period is not a further restriction or an additional
requirement. (Easter, 114 Ill. App. 3d at 859, 70 Ill. Dec.
666, 449 N.E. 2d 1013.) The Code's longer time for the
issuance of the penalty decision is inconsistent with the
five-day time limit in the Liquor Act. Under the terms of the
Code and the Liquor Act, the inconsistent 15- and 60-day
limits cannot stand. (Village of Mundelein v. Hartnett
(1983), 117 Ill. App. 3d 1011, 1015, 73 I11.Dec. 285, 454
N.E.2d 29 (where there is a conflict between a statute and
an ordinance, the ordinance must give way).) The State
five-day limitation for issuing a revocation decision
prevails over the Code.
The case of Puss N Boots, Inc. v. Mayor's License
Commission (1992), 232 I11.App.3d 984, 173 I11.Dec. 676, 597
N.E.2d 650, was an appeal from an order of the mayor of the
city of Chicago revoking the public place of amusement
license of the plaintiff. Plaintiff argues that this court
should follow the decision in Puss N Boots. One of the issues
in that case was whether the mayor had lost jurisdiction to
revoke the public place of amusement license because of
failure to act within a 15-day time period prescribed by
ordinance section 4-4-280. The court pointed out that the
Code section providing for ``interpretation of language''
expressly stated that ``[t]he word `shall' as used in this
code is mandatory.'' (Puss N Boots, 232 I11.App.3d at 987,
173 I11.Dec. 676, 597 N.E.2d 650.) The court concluded that
``shall'' in section 4- 4-280 was mandatory and therefore the
failure to render a decision within the mandatory time
deprived the mayor of jurisdiction. Puss N Boots, 232
I11.App.3d at 987-89, 173 I11.Dec.676, 597 N.E.2d 650.
We agree with the decision rendered in the Puss N Boots
case. The word ``shall'' in section 4-4-280 of the Municipal
Code of Chicago is mandatory rather than directory, and the
commission would have lost jurisdiction when the mayor failed
to act within the 15-day period in this case if only the
local code were involved. However, liquor control is subject
to concurrent jurisdiction of the State and the city of
Chicago. (Easter Enterprises, Inc. v. Illinois Liquor Control
Commission (1983), 114 I11.App.3d 855, 858-59, 70 I11.Dec.
666, 449 N.E.2d 1013.) In this *6 **311 case, the order of
April 26, 1991, was issued by Richard M. Daley as mayor and
local liquor control commissioner. The order also stated that
the proceedings were instituted pursuant to the Liquor Act.
In the Puss N Boots case the State of Illinois had no
involvement in the revocation of a Chicago public place of
amusement license whereas in this case the proceedings were
conducted subject to the Liquor Act. We find that the Puss N
Boots case is distinguishable from the case sub judice and is
not controlling.
[4] The next issue is whether the failure to issue the
reasons for revocation within the five-day period provided by
State law deprived the commission of jurisdiction. If the
five-day requirement of the Liquor Act was mandatory and not
directory, then the failure to act within the required time
meant the commission did not have jurisdiction to act beyond
the time limit. See Johnkol, Inc. v. License Appeal
Commission (1969), 42 I11.2d 377, 383- 84, 247 N.E.2d 901
(failure of liquor license appeal commission to render a
decision within 20 days of filing the appeal as required by
State law resulted in loss of jurisdiction for
noncompliance).
[5][6][7][8] Section 7-5 of the Liquor Act states that the
local liquor control commissioner ``shall'' within five days
of the hearing state the reasons for revocation. (235 ILCS 5/
7-5 (West 1995).) The word ``shall'' generally is mandatory
and not directory, but it can be construed as meaning ``may''
depending on the legislative intent. (Village of Mundelein v.
Hartnett (1983), 117 I11.App.3d 1011, 1016, 73 I11.Dec. 285,
454 N.E.2d 29.) Generally, statutory regulations designed
``to secure order, system and dispatch in proceedings, and by
a disregard of which the rights interested parties cannot be
injuriously affected'' are not mandatory unless they are
accompanied by negative language that imports that the acts
required shall not be done in any other manner or time than
designated. (Village of Mundelein, 117 I11.App.3d at 1016, 73
I11.Dec. 285, 454 N.E.2d 29.) If a statute is mandatory, it
prescribes the result that will follow if the required acts
are not done; if the statute is directory then its terms are
limited to what is required to be done. (Village of
Mundelein, 117 I11.App.3d at 1016, 73 I11.Dec. 285, 454
N.E.2d 29.) The failure to comply with a mandatory provision
will render void the proceeding to which the provision
relates, but strict observance of a directory provision is
not essential to the validity of the proceedings. Village of
Mundelein, 117 I11.App.3d at 1016, 73 I11.Dec. 285, 454
N.E.2d 29.
Alpern v. License Appeal Commission (1976), 38 I11.App.3d
565, 567, 348 N.E.2d 271, was the first decision that held
that the Liquor Act's five-day requirement was directory so
that a revocation issued beyond that time was valid and the
commissioner did not lose jurisdiction. The court adopted the
reason that ordinarily a statute that specifies the time for
the performance of an official duty will be considered
directory only where the rights of the parties cannot be
injuriously affected by the failure to act within the time
indicated. (Alpern, 38 Ill. App. 3d at 567, 348 N.E. 2d
271.) The court also noted that the Liquor Act provided
that it was to be liberally construed to protect the
welfare of the people. (Alpern, 38 Ill. App. 3d at 567,
348 N.E. 2d 271.) The five-day provision did not contain
language denying the exercise of the power after the time
named and no right of plaintiff would be injuriously
affected by a failure to serve the revocation order
timely. Alpern, 38 Ill. App. 3d at 568, 348 N.E. 2d 271.
Several first district cases have followed Alpern; Dugan's
Bistro, Inc. v. Daley (1977), 56 Ill. App. 3d 463, 475, 14
Ill. Dec. 63, 371 N.E. 2d 1116; Rincon v. License Appeal
Commission (1978), 62 Ill. App. 3d 600, 606, 19 Ill. Dec.
406, 378 N.E. 2d 1281; Watra, Inc. v. License Appeal
Commission (1979), 71 Ill. App. 3d 596, 600, 28 Ill Dec. 120,
390, N.E. 2d. 102; and Cox v. Daley (1981), 93 Ill. App. 3d
593, 595-96, 49 Ill. Dec. 55, 417 N.E. 2d 745.
Miller v. Daley (1973), 14 Ill. App. 3d 394, 397, 302 N.E.
2d 347, stated that the five-day limit was mandatory but
found that the order was served within the period prescribed
by the statute so that the conclusion that it was mandatory
was dictum. (See Alpern, 38 Ill. App. 3d at 568, 348 N.E. 2d
271 (the interpretation in Miller was dictum).) The weight of
the authority is that the five-day period is directory.
*7 **312 We concur with the cases finding that the
failure to act in five days does not result in the loss of
jurisdiction because even though the word ``shall'' is used
(1) the Liquor Act is to be liberally construed to protect
the welfare of the people (235 ILCS 5/1-2 (West 1993)), and a
construction voiding a late revocation order would not serve
the welfare of the people; (2) the license was not injured by
a late decision as he continued to run his business until the
license was revoked; and (3) the Liquor Act does not provide
that jurisdiction is lost after the five-day period.
ii. due process
Plaintiff next argues that the plaintiff was denied due
process because the shotgun was destroyed and a police
officer was permitted to testify about the measurements of
one barrel of the shotgun. Plaintiff was also denied due
process because he did not receive notice of the charge of
possession of a sawed-off shotgun. The penalty was based on
possession of a sawed-off shotgun, which was a separate
offense from the charge of possession of an unregistered
shotgun.
[9] Plaintiff did not object to the testimony concerning
the shotgun at the first hearing, which was when the charges
were tried. A motion in limine was not made at the first
hearing. Plaintiff did not raise the issue of the denial of
due process based on destruction of the shotgun until the
penalty hearing. Therefore, that issue was waived. Harbor
Insurance C. v. Arthur Andersen & Co. (1986), 149 Ill. App.
3d 235, 240, 102 Ill. Dec. 814, 500 N.E. 2d 707.
[10] The charge of possessing an unregistered shotgun was
stated in the notice of hearing to be a violation of former
section 11.1-13 of chapter 11.1 of the Code, which is now
codified as section 8-20-150. Section 8-20-150 of the Code
requires one to exhibit a valid registration certificate.
(Chicago Municipal Code Sec. 8-20-150 (1995).) Section 8-20-
040 of the Code states in part that no person shall within
the city possess or have under his control any firearm unless
he holds a valid registration certificate for that firearm.
(Chicago Municipal Code Sec. 8-20-040(a) (1990).) A sawed-off
shotgun is unregisterable. (Chicago Municipal Code Sec. 8-20-
050(a) (1995).) Although the predecessor of section 8-2-150
was cited in the notice of
[[Page H6879]]
hearing instead of the predecessor of section 8-20-040,
plaintiff received adequate notice that he was charged with
possessing an unregistered sawed-off shotgun. From the
beginning of the proceedings plaintiff knew that possession
of a shotgun was the issue.
iii. revocation
[11] Plaintiff next argues that the revocation was
unreasonable. Plaintiff had no duty to register a firearm and
display a registration certificate for a firearm that was
unregisterable, that the licensee did not own, and that the
licensee did not constructively possess. The revocation order
states that the ordinance violated was section 8-20-150
requiring a registration certificate (Chicago Municipal Code
Sec. 8-20-150 (1995)), but the conduct was described
as possession of an unregistered firearm, which was
prohibited by section 8-20-040 Chicago Municipal Code
Sec. 8-20-040 (1990)).
Plaintiff further argues that the finding of possession was
erroneously based on the fact that the licensee had knowledge
of the presence of the shotgun on the premises eight or nine
years earlier. Plaintiff operated the business for 17 years.
In a two-year period plaintiff was charged with three
separate sales of alcohol to minors, but there was no other
record of wrongful conduct. Failure to display a certificate
was the most venial of the firearms offenses and should have
resulted in a more lenient sanction of either fine or
suspension. There was no evidence that the shotgun was
functional.
The second revocation order issued does not refer to the
specific ordinance violated as plaintiff contends but merely
states that ``charge one'' was sustained. The order should
have referred to the first ``finding'' of the revocation
order, which was that plaintiff possessed an unregistered
shotgun, because the first charge in the notice of hearing
was possession of a rifle. Plaintiff was informed as to the
basis for the revocation. Furthermore, the findings of the
commission were given, and they emphasized the possession of
the shotgun.
*8 **313 The licensee was found to have possessed an
unregistered gun and was not found guilty of the offense of
failing to register the unregisterable shotgun. Therefore the
licensee was not punished for failing to perform an
impossible act, and United States v. Dalton (10th Cir. 1992),
960 F.2d 121, is distinguishable. The Dalton court held that
due process barred a conviction under a statute that required
registration of a firearm where the subject firearm could not
be legally registered. (Dalton, 960 F.2d at 124.) Section 8-
20-040 does not only state that one cannot possese an
unregistered gun (which would imply that the gun was
registerable); the ordinance precludes possession of any
firearm that is unregisterable. Chicago Municipal Ordinance
Sec. 8-20-040 (1995).
The next issue is whether the licensee possessed the
shotgun within the meaning of section 8-20-040(a), which
states that no person shall ``possess, harbor, have under his
control, * * * or accept'' Any unregisterable firearm.
(Chicago Municipal Code Sec. 8-20-040(a) (1999).) Although
there were employees who had access to the room where the
shotgun was located, the shotgun was at the licensee's place
of business so that it can be inferred that the licensee had
control over the area where the shotgun was found.
[12] The appellate court may reverse the commission's
decision only if the manifest weight of the evidence supports
the opposite conclusion. (Lopez v. Illinois Liquor Control
Commission (1983), 120 Ill.App.3d 756, 762-63, 76 Ill.Dec.
199, 458 N.E.2d 599.) Section 7-5 of the Liquor Act permits
revocation if the licensee violated any provisions of the act
or any ordinance of the municipality or any rule of the local
liquor control commission (235 ILCS 5/7-5 (West 1995)), but
the violation must fairly relate to the control of liquor.
Lopez, 120 Ill. App. 3d at 761, 765, 76 Ill.Dec. 199, 458
N.E.2d 599.
That shotgun was deemed to be especially dangerous because
it was unregisterable. The presence of this firearm on the
premises jeopardized the safety of the public because
employees of the licensee would have access to it. On the
other hand, the business had been operated for 17 years with
only three other charges. There were factors going in favor
and against revocation. A less severe penalty could have been
imposed, but under the abuse of discretion standard, the
revocation must be upheld.
The judgment of the trial court is affirmed.
Affirmed.
RIZZI and TULLY, JJ., concur.
____
(Cite as: 636 So.2d 448)
Robert DAVIS d/b/a Solid gold, Inc. v. STATE of Alabama ALCOHOLIC
BEVERAGE CONTROL BOARD.
AV92000711
Court of Civil Appeals of Alabama, Feb. 25, 1994
Owner of lounge sought review of Alcoholic Beverage Control
(ABC) Board decision denying renewal of lounge liquor
license. The Mobile Circuit Court, Ferill D. McRae, J.,
affirmed. Owner appealed. The Court of Civil Appeals,
Robertson, P.J., held that substantial evidence supported ABC
Board's finding that operation of lounge was prejudicial to
health, welfare and morals of community.
Affirmed.
[1] ADMINISTRATIVE LAW AND PROCEDURE--701--15Ak701
Circuit court review of decision of Alcoholic Beverage
Control (ABC) Board decision denying renewal of liquor
license is governed by administrative procedure statute
pertaining generally to judicial review of agency actions in
contested cases. Code 1975, Sec. 41-22-20.
[1] INTOXICATING LIQUORS--102--223k102
Circuit court review of decision of Alcoholic Beverage
Control (ABC) Board decision denying renewal of liquor
license is governed by administrative procedure statute
pertaining generally to judicial review of agency actions in
contested cases. Code 1975, Sec. 41-22-20.
[2] ADMINISTRATIVE LAW AND PROCEDURE--683--15Ak683
In reviewing trial court's determination as to propriety of
action of Alcoholic Beverage Control (ABC) Board, standard of
review of Court of Civil Appeals is same as that of trial
court. Code 1975, Sec. 41-22-20.
[2] INTOXICATING LIQUORS--102--223k102
In reviewing trial court's determination as to propriety of
action of Alcoholic Beverage Control (ABC) Board, standard of
review of Court of Civil Appeals is same as that of trial
court. Code 1975, Sec. 41-22-20.
[3] INTOXICATING LIQUORS--102--223k102
Substantial evidence supported Alcoholic Beverage Control
(ABC) Board's finding that operation of lounge was
prejudicial to health, welfare and morals of community, thus
supporting Board's denial of lounge's liquor license renewal,
where neighborhood residents testified that lounge patrons
discharged firearms, brawled in parking lot, made excessive
noise, loitered, trespassed, deposited weapons and narcotics
in yards, parked illegally, and urinated, defecated, and
engaged in sexual activities on residents' property, and
residents' testimony was supported by testimony of ABC Board
employees and city police sergeant. Code 1975, Sec. 28-3A-
5(b).
*448 Major E. Madison, Jr., Mobile, for appellant.
H. Lewis Gillis and Anita L. Kelly of Thomas, Means &
Gillis, P.C., Montgomery, for appellee.
ROBERTSON, Presiding Judge.
Robert Davis d/b/a Solid Gold, Inc., appeals from a
judgment of the trial court upholding a decision of the State
of Alabama Alcoholic Beverage Control Board (ABC *449 Board)
denying a renewal of his lounge liquor license.
By a letter to the ABC Board dated August 20, 1991, Thomas
Sullivan, the City of Mobile council member representing the
district in which Davis operated his business, protested the
renewal of Davis's liquor license for the lounge known as the
Solid Gold Social Club (lounge), stating that he had received
several complaints from nearby residents that shootings,
prostitution, and drug deals had occurred at the lounge. The
ABC Board notified Davis of protests it had received that the
lounge's ``operation and location [were] prejudicial to the
health, welfare and morals of the community.''
The ABC Board held a hearing on the protests on September
26, 1991. By a letter dated October 11, 1991, the ABC Board
notified Davis that it had denied a renewal of his liquor
license. Davis appealed the Board's decision to the Mobile
County Circuit Court, which, following an ore tenus
hearing, affirmed the Board's decision.
The sole issue presented to this court on appeal is whether
the ABC Board's decision not to renew Davis's liquor license
for his lounge was clearly erroneous, unreasonable,
arbitrary, or an abuse of discretion.
[1][2] The ABC Board may refuse the renewal of liquor
licenses for ``good cause,'' provided that ``within one month
prior to the scheduled date of expiration of such licenses
the applicant shall have been notified by the board of
objections to the [renewal] signed by persons authorized to
do so.'' Sec. 28-3A-5(b), Ala. Code 1975. The judicial review
of such an action in circuit court is governed by Sec. 41-22-
20, Ala. Code 1975. Dawson v. Department of Environmental
Management, 529 So.2d 1012 (Ala. Civ. App. 1988). Section 41-
22-20(k) provides that ``the agency order shall be taken as
prima facie just and reasonable and the court shall not
substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact, except where
otherwise authorized by statute.'' The trial court may
reverse, modify, or alter a decision of the ABC Board if the
Board's action was clearly erroneous, unreasonable,
arbitrary, capricious, or an abuse of discretion. Sec. 41-22-
20(k)(6), (7), Ala. Code 1975. In reviewing a trial court's
determination as to the propriety of an ABC Board action,
this court's standard of review is the same as that of the
trial court. Dawson, supra.
[3] The record of the ABC Board's hearing reflects that the
lounge is located in Mobile, at 1385 Dr. Martin Luther King,
Jr., Avenue, an area of mixed commercial and residential
properties. Neighborhood residents testified that the
lounge's patrons discharged firearms; brawled in the parking
lot; made excessive noise; loitered; trespassed; deposited
weapons and narcotics in neighborhood yards; illegally parked
their cars; and urinated, defecated, and engaged in sexual
activities on the residents' property. Supporting testimony
was offered by George Boan and Kenneth Kirkland, two ABC
Board employees, and by Sgt. Kay Taylor of the Mobile Police
Department. Boan, an ABC Board district supervisor, testified
that he had personally observed loitering, noise, and illegal
parking at the lounge, and he stated that during an
investigation of the lounge he had been approached by
prostitutes working the area. Kirkland, an ABC Board agent,
played a videotape that he had made of the parking lot and
the area surrounding the lounge; on that tape he had captured
an apparent drug deal. Sgt. Taylor presented a
[[Page H6880]]
telephone log listing 95 complaints lodged with the police
department between January 1, 1990, and September 25, 1991,
concerning activities allegedly occurring inside the lounge
or on its premises.
Davis denied that his patrons were responsible for the
illegal activities that had occurred in the vicinity, blaming
persons driving by and the occupants of a nearby house for
causing the trouble. However, after a thorough review of the
record, we find that the ABC Board heard substantial evidence
that the operation of the lounge was prejudicial to the
health, welfare, and morals of the community. Consequently,
we cannot hold that the Board's action was clearly erroneous,
unreasonable, arbitrary, or an abuse of discretion.
*450 The judgment of the trial court is affirmed.
AFFIRMED.
THIGPEN and YATES, JJ., concur.
Mr. CONYERS. Mr. Chairman, will the gentlewoman yield?
Ms. LOFGREN. I yield to the gentleman from Michigan, the ranking
member.
Mr. CONYERS. Mr. Chairman, I want to thank the gentlewoman from
California (Ms. Lofgren) for her insistence.
Parliamentary Inquiry
Mr. SCARBOROUGH. Mr. Chairman, I have a parliamentary inquiry.
The CHAIRMAN. Does the gentlewoman from California yield to the
gentleman from Michigan (Mr. Conyers)?
Ms. LOFGREN. I have yielded to the gentleman from Michigan.
Mr. SCARBOROUGH. Parliamentary inquiry. Is this for the first 5
minutes?
Ms. LOFGREN. Yes, it is.
Mr. SCARBOROUGH. Parliamentary inquiry. Is it the rule of the Chair,
then, that they can yield during the first 5 minutes when a point of
order has been raised?
The CHAIRMAN. Does the gentlewoman from California yield to the
gentleman from Florida for a parliamentary inquiry?
Ms. LOFGREN. I will yield for a parliamentary inquiry which has been
stated. May I yield time to the gentleman from Michigan (Mr. Conyers),
the ranking member, under regular order?
The CHAIRMAN. The gentleman from Florida may state his parliamentary
inquiry.
Mr. SCARBOROUGH. Mr. Chairman, the parliamentary inquiry, earlier I
had tried to yield some time on reserving a point of order.
The CHAIRMAN. The Chair controls debate on the point of order when it
is raised.
Ms. LOFGREN. Mr. Chairman, reclaiming my time, that was on the
germaneness issue. This is on the 5 minutes.
Mr. SCARBOROUGH. I am trying to get a ruling from the Chair.
The CHAIRMAN. Members will suspend. Earlier the gentleman tried to
yield time during argument on a point of order. That cannot be done
under the rules.
The gentlewoman from California (Ms. Lofgren) controls 5 minutes and
can yield to the gentleman from Florida for a parliamentary inquiry.
Mr. SCARBOROUGH. Okay.
Ms. LOFGREN. Mr. Chairman, I yield to the gentleman from Michigan
(Mr. Conyers).
Mr. CONYERS. Mr. Chairman, I thank the gentlewoman from California
for yielding to me.
I am glad the gentleman from Florida (Mr. Scarborough) realizes that
this is perfectly orderly procedure.
I wanted to just thank the gentlewoman for her persistence in trying
to connect at a Federal level the relationship between gun safety, the
shipment of firearms, and the shipment of alcoholic beverages. There is
nothing illogical or irrational about it. They are both very related
subject matter.
The need for using these regulations and looking at them from this
perspective of a Federally licensed firearm dealer and wine distributor
or alcohol beverage distributor are related.
I am glad that the gentlewoman has reformulated her amendment. I
think it now attaches to this bill with a great rationality, and it is
an amendment on its own that I support very strongly.
Ms. LOFGREN. Mr. Chairman, I thank the ranking member for his kind
comments.
Point of Order
Mr. SCARBOROUGH. Mr. Chairman, I rise to speak on the point of order
that I reserved.
The CHAIRMAN. The gentleman may state his point of order.
Mr. SCARBOROUGH. Mr. Chairman, again, the fundamental purpose of this
bill is to provide the attorney general of any State with the authority
to bring a civil action in the United States district court to enjoin
any person or entity that the attorney general has a reasonable cause
to believe is engaged in any act that would constitute a violation of
State law regulating the importation or transportation of intoxicating
liquor.
Now, the fundamental purpose of this amendment is again to expand the
single class of merchandise covered by the bill from intoxicating
liquor to now adding another class of merchandise, which is firearms to
the one class covered by the bill.
Secondly, it makes absolutely no sense because it adds an unrelated
contingency in the final line when, again, reading the amendment, it
says: ``This Act and the amendment made by this act shall take
immediate effect with regard to any violation of a State law regulating
the importation or transportation of any intoxicating liquor which
results from any violation of a State's firearms laws.''
{time} 1400
Now that is clearly, clearly, an unrelated contingency.
Also, I think it is very important to understand that what we are
doing here is we are commingling again two issues. Instead of the
single issue of alcohol that is being illegally shipped across State
lines, we are actually talking about gun sales or the transporting of
guns inside of a State. Obviously, that can already be taken care of
inside the State by a State attorney general who simply goes to State
court. The State attorney general also has the power to simply take
away the State liquor license of the person who is illegally selling
guns, and so it is unnecessary.
Again, it is a commingling of two issues and, as I said earlier, the
fundamental purpose of this bill is a single issue, and that is to stop
the illegal sales of alcohol across State lines. So for those reasons
and many others, I think, once again, we have to go back to House
Practice, Germaneness, section 9, which says, ``One individual
proposition is not germane to another individual proposition.'' And
this is clearly one individual proposition that is being added to
another in a mix, sort of a legislative goo that I think even gives
sausage making a bad name.
Accordingly, Mr. Chairman, I do not believe this amendment is germane
and I insist on my point of order.
The CHAIRMAN. Does the gentlewoman from California wish to be heard
on the point of order?
Ms. LOFGREN. Yes, Mr. Chairman.
The CHAIRMAN. The gentlewoman from California (Ms. Lofgren) is
recognized.
Ms. LOFGREN. Mr. Chairman, I would disagree with my colleague from
Florida on the germaneness issue. In the example I gave in my 5 minutes
in support of my amendment, I mentioned the issue where we had the
possession of a Tech DC 9 by the owner of a winery and the holder of a
Federal license of a winery. That is not a State license, that is a
Federal license. And in order to affect that Federal license, recourse
first of the ATF and later, and arguably necessarily, to the Federal
courts, would be necessary. The State does not have jurisdiction over
the Bureau of Alcohol, Tobacco and Firearms.
Further, I would note that the forum of a Federal court gives multi-
State enforcement opportunities that arguably are not available to the
attorneys general by recourse to a State forum. And if that is not the
case, if that turns out to be incorrect, then the entire basis for this
act being asserted by the proponents of the Scarborough bill
evaporates. Because if the point of the gentleman from Florida (Mr.
Scarborough) is that there is adequate remedy in State court, then
there ought to be adequate remedy in State court for alcohol violations
as well.
As the Chair will note, I did not ask for a vote on his prior ruling
on the first amendment, because although I think an argument, and a
good argument, could be made on its germaneness, I think that the
arguments on germaneness on this amendment are weak indeed, and I would
hope that the Chair would allow a vote to be taken on this amendment.
[[Page H6881]]
We have gone to great lengths to make sure it deals with the
germaneness issue. Consequently, it is much smaller in scope than I
think is appropriate and warranted by the violence emergency that faces
us. But I offer it because at least it is something that this Congress
could do as a show of good faith to the mothers and fathers of America
who, like myself, are preparing to send their children back to school
in just a month or so.
So I would hope that the Chair would rule that this is germane, and
that absent that, those who have raised the point of order might
consider withdrawing that point of order. I think it is only fair that
this House be given the opportunity to do something, something for gun
safety for the mothers and fathers of this country.
Mr. Chairman, I submitted for the Record legal citations from the
Appellate Court of Illinois on this subject matter.
The CHAIRMAN. Does the gentleman from Georgia desire to be heard on
the point of order?
Mr. BARR of Georgia. He does.
The CHAIRMAN. The gentleman from Georgia (Mr. Barr) is recognized.
Mr. BARR of Georgia. Mr. Chairman, in looking at this amendment, I
have to conclude that Rube Goldberg is alive and well. If the Chair can
figure out what this amendment means, the Chair is indeed very smart.
I think, though, that it can be stated very clearly, very succinctly,
Mr. Chairman, that this is simply an evidence of the gun control
advocates seeking to interject gun control into any piece of
legislation they can at whatever the cost. And the cost here would be
at the price of clarity and germaneness.
What the gentlewoman is proposing here in bringing in the issue of
State firearms laws, which have nothing whatsoever to do with the laws
of a State regarding the sale of alcoholic beverages, is to try to
bring in an unrelated contingency. That, Mr. Chairman, is specifically
precluded by House rules, number 22, on germaneness, entitled
Conditions or Qualifications, which I would respectfully quote to the
Chair. It says, ``A condition or qualification sought to be added by
way of amendment must be germane to the provisions of the bill.''
The provisions of this bill relate solely and exclusively to State
laws regarding the sale of alcoholic beverages. They have nothing
whatsoever to do with firearms violations. This is not germane, it is
unrelated, and I urge the Chair to sustain the point of order raised by
the gentleman from Florida.
The CHAIRMAN. Does the gentleman from Michigan wish to be heard on
the point of order?
Mr. CONYERS. Yes, Mr. Chairman.
The CHAIRMAN. The gentleman from Michigan (Mr. Conyers) is
recognized.
Mr. CONYERS. Mr. Chairman, I rise in opposition to the point of order
that is made, and I simply want to make it clear that this is a
completely different amendment that is being brought forward.
What the gentlewoman is pointing out is that this is a subset of
liquor violations, and some liquor violations result from gun
violations. She is merely setting a different effective date for those
violations. This is just empowering the States to enforce their own
liquor laws, which sometimes involve gun laws.
So this supports the principle purpose of the bill. It in no way is
caught by germaneness. It is stopping the sale of alcohol in violation
of State laws. It does this by allowing cases where firearms' use
violate State alcohol laws to be heard immediately. She merely changes
the date.
So to argue the same nongermaneness arguments that were previously
advanced fails to recognize that this is a substantially different
amendment, and that it is clearly germane and is in accord with the
precedence of the House.
This amendment does nothing whatsoever to expand the scope of the
bill. It merely deals with the effective date issue, and for that
reason I urge that the point of order be rejected.
The CHAIRMAN. The Chair is prepared to rule on the point of order
raised by the gentleman from Florida.
The gentleman from Florida raises a point of order that the amendment
offered by the gentlewoman from California is not germane.
The bill amends the Webb-Kenyon Act to authorize an attorney general
of a State to bring a civil action in a Federal court against a person
that an attorney general has reason to believe has engaged in an act in
violation of a State law regulating the importation or transportation
of intoxicating liquor. The bill also establishes certain parameters
for Federal judicial purview of an action brought under the new law.
Clause 7 of Rule XVI, the germaneness rule, provides that no
proposition on a ``subject different from that under consideration
shall be admitted under color of amendment.'' One of the central tenets
of the germaneness rule is that the fundamental purpose of an amendment
must be germane to the fundamental purpose of the bill.
The Chair discerns that fundamental purpose of a bill by examining
the text of the bill and the report language accompanying the bill as
evidenced by the ruling of the Chair on July 18, 1990, recorded in
Volume 10, Chapter 28, section 5.6 of the Deschler-Brown Precedents. As
indicated on page 5 and 6 of the committee report, the underlying bill
was ``introduced in order to specifically provide States with access to
Federal court to enforce their laws regulating interstate shipments of
alcoholic beverages.''
The fundamental purpose of the amendment appears to be to single out
certain violations of liquor trafficking laws on the basis of their
regard for any and all firearms issues. The Chair is of the opinion
that the question illustrates the principle that an amendment may
relate to the same subject matter, yet still stray from adherence to a
common fundamental purpose, by singling out one constituent element of
the larger subject for specific and unrelated scrutiny.
The fundamental purpose of the amendment is not the same as the
fundamental purpose of the bill, nor is it a mere component of the
larger purpose. Rather, the amendment pursues a purpose that, by its
specialized focus, bears a corollary relationship to that pursued by
the bill.
The proponent of this amendment has argued that her amendment merely
addresses a subset of those State laws already addressed in the bill
and is germane based on subject matter grounds. The Chair would note
that general principle found on page 618 of the House Rules and Manual
that the standards by which the germaneness of an amendment may be
measured are not exclusive. Thus, while the amendment may arguably
address the same subject matter, or a subset thereof, as that of the
underlying bill, the fundamental purpose of the amendment must still be
germane under every application thereof to that of the bill.
In the opinion of the Chair, the amendment is not germane and the
point of order is sustained.
Are there further amendments to the bill?
Amendment Offered by Ms. Jackson-Lee of Texas
Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
Mr. SCARBOROUGH. Mr. Chairman, I reserve a point of order.
The CHAIRMAN. The point of order by the gentleman from Florida is
reserved.
The Clerk will report the amendment.
The Clerk read as follows:
Amendment offered by Ms. Jackson-Lee of Texas: Page 6, line
9, strike the close quotation marks and the period at the
end.
Page 6, after line 9, insert the following (and make such
technical and conforming changes as may be appropriate):
``SEC. 3. REQUIREMENTS APPLICABLE TO CERTAIN CARRIERS IN
CONNECTION WITH DELIVERY OF INTOXICATING LIQUOR
TO A PLACE OF RESIDENCE.
``(a) Delivery of Intoxicating Liquor by Non-governmental
Carriers for Hire.--It shall be unlawful for a
nongovernmental carrier for hire to knowingly deliver a
container transported in interstate commerce that contains
intoxicating liquor to a place of residence of any kind if
such carrier fails to obtain the signature of the individual
to whom such container is addressed.
``(b) Penalty.--Whoever violates paragraph (1) shall be
liable for a fine of $500.''.
Ms. JACKSON-LEE of Texas (during the reading). Mr. Chairman, I ask
unanimous consent that the amendment be considered as read and printed
in the Record.
The CHAIRMAN pro tempore (Mr. Barrett of Nebraska). Is there
objection to the request of the gentlewoman from Texas?
[[Page H6882]]
Mr. SCARBOROUGH. Objection, Mr. Chairman.
The CHAIRMAN pro tempore. Objection is heard.
The Clerk will continue the reading.
The Clerk continued reading the amendment.
Mr. SCARBOROUGH. Mr. Chairman, I continue to reserve a point of
order.
The CHAIRMAN pro tempore. The gentlewoman from Texas (Ms. Jackson-
Lee) is recognized.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I hope my colleague will see
fit to join me in this amendment, and I would like to share with him
language in H.R. 2031 in particular that specifically states, ``if the
Attorney General has reasonable cause to believe that a person is
engaged or has engaged in any act that would constitute a violation of
State law regulating the importation or transportation of any liquor.''
In part, this provision reads that we are dealing with the illegal
transportation of liquor. And the supporting materials that my
colleagues have circulated to even support this legislation all goes to
the underage drinking of our young people.
We realize and have seen documentation, Mr. Chairman, that underage
drinking is more devastating in our youth community than drugs. And
interestingly enough, the amendment that I have just offered, and I
might add that I would be happy to see if the gentleman would accept a
friendly amendment to my amendment or a perfecting amendment that deals
with narrowing the opportunity by way of requiring the carrier, and I
might amend that to be shipper, to in fact make sure that they have the
signature of the individual to whom the container is addressed, which
would, in and of itself, help to bring down the amendment of illegal
alcohol being shipped and transported to youth.
{time} 1415
In particular, materials that were sent out by the beer wholesalers,
national beer wholesalers, speak to this issue, as well as some
additional new faces and anecdotal stories that tell us what happens
when young people use the Internet and these amounts of liquor come
without any restraint whatsoever.
In Greenville, Mississippi, a teenage girl says ordering liquor or
alcohol over the Internet is easier than walking into a store and
buying it. February 16, 1999, in Boston, Massachusetts, indicates an
18-year-old lies about his age and uses his own debit card to order
wine by the Internet. One package is left at the door without an ID
check. One winery uses a deceptive return label that indicates the
package was shipped from a printing company.
In addition, on May 13, 1999, again beer is sent to a 17-year-old.
The UPS delivers it to an unmarked box. No ID check.
Materials that the beer wholesalers have offered to us have said
several things. There is a new black market in alcohol. It says State
laws are broken. Today this sensitive marketplace structure is in
jeopardy, a national problem with local impact. Television stations in
more than three dozen communities across the Nation have produced
investigative reports that document how easy it is for teenagers to use
the Internet to acquire beer.
If this is the premise upon which this legislation has been written,
if we are to assist the attorney general in preventing illegal
intoxicating liquors from being shipped across State lines, then I
would argue that in fact this is an amendment that should be accepted.
Because what it asks the carrier to do is to simply get a signature of
the individual on the container that is addressed.
I would say to the gentleman from Florida (Mr. Scarborough) as well
that we need to do what he says the legislation is attempting to do and
that is to respond to underage drinking.
We can all rally around underage drinking, Mr. Chairman. For many of
the carriers who are receiving alcohol from the shippers, they are in
fact shipping to teenagers, leaving it, getting no ID, getting no
signature, getting absolutely nothing. And that allows our teenagers,
our youth, our college students to engage in alcohol abuse, which
enhances and increases the numbers of those who are abusing alcohol.
I ask the gentleman from Florida to consider this amendment and, as
well, be happy to offer a friendly amendment that should say that such
requirement that requires the carriers to get the signature would be
subject to the passage of a State law.
Mr. CONYERS. Mr. Chairman, will the gentlewoman yield?
Ms. JACKSON-LEE of Texas. I yield to the gentleman from Michigan.
Mr. CONYERS. Mr. Chairman, I want to compliment the gentlewoman from
Texas (Ms. Jackson-Lee).
If I understand the amendment, all she is asking is that the outside
package have some identifying label that this is alcohol. Is that
correct?
Ms. JACKSON-LEE of Texas. Mr. Chairman, reclaiming my time, I am
asking for the signature.
Mr. CONYERS. Mr. Chairman, if the gentlewoman would continue to
yield, plus the signature when it is received to determine that it is
going into the proper hands.
Ms. JACKSON-LEE of Texas. Mr. Chairman, that is correct.
Mr. CONYERS. Mr. Chairman, first of all, I am sure that is consistent
with the bill. I mean, I hope we do not have a germaneness problem.
Secondly, it makes pretty good sense. It would seem that those who
support the bill might want to make this improvement merely because it
makes more efficacious the whole process.
Point of Order
Mr. SCARBOROUGH. Mr. Chairman, I insist on my point of order and
disagree with the gentlewoman from Texas (Ms. Jackson-Lee) and also the
ranking member of the Committee on the Judiciary. This is not
consistent at all with the bill, and it is far outside the fundamental
scope of this legislation.
Mr. Chairman, again, the fundamental purpose of this bill is to
provide the attorneys general of any State with the authority to bring
civil action in the United States District Court to enjoin any person
or entity that the attorney general has reasonable cause to believe is
engaged in any act that would constitute a violation of State law
regulating the importation or transportation of an intoxicating liquor.
Now, what we have here from the gentlewoman from Texas (Ms. Jackson-
Lee) is actually a new set of substantive laws that would actually
apply fines, penalties, and hold them accountable in Federal court for
actual criminal or civil penalties. It is a substantive approach.
It is very important to remember, in this legislation the only thing
we are talking about is providing States' attorneys general a
procedural mechanism to go into State courts.
So by proposing this bill and if it passes, after it passes, we have
not proposed any new Federal laws regarding the sale of alcohol. We
have not proposed any new civil penalties. We have not proposed any new
criminal penalties.
The only thing that we are doing is providing States' attorneys
general with a procedural mechanism to go into court and stop illegal
wine sales that are transported across State lines.
So when the gentlewoman from Texas (Ms. Jackson-Lee) offers this
amendment, she is taking us out of this very narrowly limited
procedural safeguard for States' attorneys general and instead
expanding it to a point where we are going to have an entirely new
class of individuals and businesses that are going to be liable under
Federal law that are going to be able to be dragged into Federal court
and be held accountable under civil or criminal penalties.
Despite the debate that has preceded this conversation on the floor
right now, there is nothing in my legislation and in the legislation of
the gentleman from Massachusetts (Mr. Delahunt) that would hold anybody
accountable under any new civil or criminal penalty. Again, it only
provides a simple procedural safeguard so States' attorneys general are
allowed only to stop the illegal shipment of alcohol into their States.
According to House Practice Germaneness Section 9, one individual
proposition is not germane to another individual proposition.
This is clearly one individual proposition that is being added to
another. We are clearly bringing in an entirely new group of people who
will be liable under this. We are trying to add new
[[Page H6883]]
Federal regulations, telling shippers, nongovernmental shippers, what
they may or may not ship and when they ship and how they ship and what
procedures they must go through so they are not dragged into Federal
court and then held liable.
So accordingly, Mr. Chairman, this amendment is clearly not germane.
And I will insist on my point of order.
The CHAIRMAN pro tempore (Mr. Barrett of Nebraska). Does the
gentlewoman from Texas (Ms. Jackson-Lee) wish to speak to the point of
order?
Ms. JACKSON-LEE of Texas. Yes, I would, Mr. Chairman.
Mr. Chairman, I am disappointed in my colleague from Florida. And I
realize that he has turned the debate away from the premise of the
bill.
Again I say, Mr. Chairman, that this bill was argued on and discussed
in the Committee on the Judiciary on the question of underaged
drinking. What are we here for on the floor of the House?
Again I refer to H.R. 2031, which says, ``if the attorney general has
reasonable cause to believe that a person is engaged or has engaged in
any act that would violate a constitution of State law regarding the
importation or transportation of any intoxicating liquor.''
That is what this amendment proposes to do. It proposes to make
illegal for a nongovernmental carrier to deliver liquor to a place of
residence without a signature.
I have already indicated to the gentleman from Florida (Mr.
Scarborough) that I would be more than willing to make it subject to
the passage of such State law. But we have a problem with underage
drinking. And as the materials have indicated, sent out by the
supporters of this bill, the national beer wholesalers who indicate
that, if I might just cite some of their information, Mr. Chairman,
State laws are broken. A national problem with local impact exists.
They cited a number of instances where college students were receiving
large amounts of alcohol and, of course, without any identification
and, therefore, engaging in alcohol abuse.
I would simply raise the specter to the gentleman that germaneness is
a potential waiver to something that is on the crisis level. We are at
a crisis level with the abuse of alcohol by our young people.
First of all, I would ask the gentleman from Florida (Mr.
Scarborough) would he accept a friendly amendment to modify it to make
this subject to the passage of State laws in order to get to the point
that we are trying to do?
Let me say this, Mr. Chairman, in particular. We have a situation
where our children are being negatively impacted. We have clear
evidence that laws are being broken, that there is no enforcement. The
amendment that I offer would provide enforcement. It would encourage
carriers to make sure that the addressee and the individual that signs
equals the same person. By that they would determine whether or not to
deliver to underage drinkers.
I think, Mr. Chairman, that we can do no less. If this bill is argued
on the premise of bringing down underage drinking, then I clearly
believe this amendment should be ruled not only in order but should be
ruled as germane.
Mr. BARR of Georgia. Mr. Chairman, I wish to be heard on the point of
order.
Mr. Chairman, here again, similarly, though not exactly the same as
the prior amendments, there is a germaneness issue that jumps to the
fore in looking at the amendment proposed by the gentlewoman from
Texas.
I would note particularly in the House Practice Volume, Section 27,
that what the gentlewoman is proposing to do is to amend a bill that
amends existing law and going beyond the proposed amendment to the
existing law.
It says, ``A germaneness rule may provide the basis for a point of
order against an amendment that is offered to a bill amending existing
law.''
The gentleman from Florida (Mr. Scarborough) is proposing an
amendment to an existing law in a very narrow respect.
What the gentlewoman from Texas (Ms. Jackson-Lee) is proposing to do
by way of an amendment to the bill of the gentleman goes beyond that.
It indeed would establish not an amendment to what the gentleman is
proposing, and that is a change to Section 28 of the Federal Rules of
Procedure relating to injunctive relief, but she is proposing a new
substantive provision of the Federal Criminal Code.
We are talking about two entirely different titles of the Federal
Code. We are talking here about the Civil Code. She is talking about a
new substantive criminal provision.
It clearly raises germaneness questions. She is attempting to amend a
bill that amends existing law in a way that is clearly improper
pursuant to precedent and House Practice.
I would urge the Chair to sustain the point of order raised by the
gentleman from Florida (Mr. Scarborough).
The CHAIRMAN pro tempore. Does the gentlewoman from Texas (Ms.
Jackson-Lee) have further argument on the point of order?
Ms. JACKSON-LEE of Texas. Yes, Mr. Chairman, I do.
Mr. Chairman, I am disappointed. And I hear the opponents' arguments.
As I indicated, the bill itself speaks to the attorney general being
able to prohibit the illegal transfer or interstate transfer of
alcohol. The underlying arguments for the bill speak to underage
drinking.
My amendment in particular deals with carriers shipping interstate,
in the course of interstate commerce, alcohol and the requirement
thereof for a signature to the addressee.
I cannot imagine the unwillingness of the proponents of this
legislation to be willing to accept this amendment based on the premise
of the legislation to reduce underage drinking.
The CHAIRMAN pro tempore. The Chair is prepared to rule on the point
of order.
{time} 1430
The gentleman from Florida raises a point of order that the amendment
offered by the gentlewoman from Texas is not germane.
Under clause 7 of rule XVI, one of the fundamental tenets of the
germaneness test is that the amendment must have the same fundamental
purpose as the bill. The fundamental purpose of the bill under
consideration is the creation of Federal court jurisdiction for civil
actions arising under State laws regulating the importation or the
transportation of intoxicating liquor. The fundamental purpose of the
amendment offered by the gentlewoman from Texas is the creation of new
Federal prohibitions regarding the transportation of intoxicating
liquor under Federal law. Therefore, the amendment has a different
fundamental purpose and is not germane.
The point of order is sustained.
Amendment Offered by Ms. Jackson-Lee of Texas
Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Ms. Jackson-Lee of Texas:
At the end of the bill, add the following:
SEC. 4. EFFECTIVE DATE.
(a) Study.--This Act shall not take effect until 90 days
after the Attorney General submits to the Congress the
results of a study to determine the effect the amendment made
by this Act will have on reducing consumption of intoxicating
liquor by individuals who by reason of age may not lawfully
purchase such liquor.
(b) Completion of Study.--The Attorney General shall carry
out the study required by subsection (a) and shall submit the
results of such study not later than 180 days after the date
of the enactment of this Act.
Mr. SCARBOROUGH. Mr. Chairman, I reserve a point of order.
The CHAIRMAN pro tempore (Mr. Barrett of Nebraska). The gentleman
from Florida reserves a point of order.
Ms. JACKSON-LEE of Texas. Mr. Chairman, we commit ourselves as
Members of the United States Congress to not waste the taxpayers'
dollars, to solve national crises, and to respond to the immediacy of
the issue. As I indicated in all of the underlying arguments and
supporting documentation that the proponents of this legislation have
utilized, they have utilized the premises of teenagers getting alcohol,
underage drinking, the abuse of alcohol. In fact, in their own
documentation, there is a recounting of the tragedies of what happens
when underage drinkers or how they get alcohol.
This amendment is a simple request, Mr. Chairman. I would ask my good
friend from Florida to reconsider his point of order, because it simply
asks for a study to determine the impact of
[[Page H6884]]
this act on underage drinking. It then asks for the Attorney General to
carry out the study required by subsection A and it asks for these
results to be presented back to us, this Congress, to ensure that what
we are trying to do, to bring down the numbers of underage drinking and
to stop the abuse of alcohol, has really occurred by passage of this
legislation.
This is an amendment that deals with the question of what is H.R.
2031 going to accomplish and what are we doing today with the passage
of this legislation. Does it help the 17-year-old who calls a
retailer's toll-free number to order a case of beer, she gives a fake
birth date and uses someone else's credit card, the operator asks why
she wants to pay $20 for a $7 case of beer and the teen says that she
cannot get that brand where she lives although the brand is brewed in
Michigan. The driver's license is never verified and the package is
dropped off on the doorstep without an ID.
So it is important that we understand as we pass this legislation
whether or not we are seeing the results that we should see, whether or
not it will impact, as I indicated earlier, the 19-year-old who lies
about his age, uses his own debit card to order wine via the Internet,
one package is left at the door without an ID, one winery uses a
deceptive return label that indicates the package was shipped from a
printing company. There we are, Mr. Chairman, misrepresenting.
Or May 13, 1999, another television viewpoint, a 17-year-old orders
beer from a Colorado company admitting that she is under 21, the
company calls to confirm her age, she again admits she is under 21,
beer arrives, anyway, left on the doorstep by UPS in an unmarked box,
no ID checked.
My amendment simply asks that all of the points that we have made
today regarding the impact of this legislation on again underage
drinking would be studied in order to, first of all, assess what impact
legislation like this might have, to assist the States, many of whom do
not have legislation like this. Most of them have the 21 requirement
but they do not have the requirement dealing with shipper's labeling,
they do not require the requirement of signatures, none of that is
required, and this is a study, Mr. Chairman, that would simply be able
to provide us with the necessary information.
The CHAIRMAN pro tempore. Does the gentleman insist upon his point of
order?
Mr. SCARBOROUGH. No, I do not.
The CHAIRMAN pro tempore. The gentleman from Florida withdraws the
point of order.
Mr. SCARBOROUGH. Mr. Chairman, I rise in opposition to the amendment.
Let me, first of all, respond to some things that have been said by
the gentlewoman from Texas. She has been saying them several times
today regarding the main purposes of this bill being to stop the
illegal sales of alcohol to minors. That certainly is a very important
part of it, but I believe it is just as important that we stop illegal
bootlegging to people over 21 years of age as it is to stop illegal
bootlegging for people under 21 years of age. I am hopeful that the
gentlewoman from Texas will be able to support this overall bill.
I must say that I was a bit confused in committee after she had
expressed her deep concerns about underage drinking and said that it
was a national crisis and that it was extraordinarily important for us
to stop the illegal sales of alcohol to minors and then voted against
the bill because she said that it applied also to people over the age
of 21. This is a great first step. I know the gentlewoman wants to
expand and wants to have carriers, nongovernmental carriers held
liable, wants to put nongovernmental carriers in a position where they
are actually going to be responsible for carding, and I certainly know
that my friends, or perhaps my former friends, in the wine industry
would not want to make Federal Express and UPS and other common
carriers liable for carding at doors across the United States, because
obviously their response to that would be to stop transporting wine
across State lines.
So I certainly am hopeful that the gentlewoman will be supportive of
the overall bill. If she believes that illegal alcohol sales to minors
is a national crisis, then this is the way you stop it. The argument
that you oppose stopping illegal bootlegging to minors through a bill
form because you also are trying to stop illegal bootlegging to people
over the age of 21 is an argument that quite bluntly I just do not
understand. I certainly am hopeful that the gentlewoman is not going to
oppose this bill if again she is concerned about this national crisis.
Let me also say, further, I am very pleased that she sees this as a
national crisis. I mentioned 30, 35 news stations across the country
that had identified this as a national crisis. I was accused of being
clever and somehow, I do not know, I guess somehow getting these 35
stations from San Francisco to Washington, DC to do this. I wish I
could have had that influence in the media. I do not. I think it is
helpful, though, that the gentlewoman understands that there is a
national crisis out there but the national crisis is not limited to
illegal alcoholic sales for people that are under the age of 21.
Illegal bootlegging is occurring across the country now, people of all
ages.
I do obviously withdraw the point of order that I reserved. I do
understand the purpose of this amendment. I will not be supporting this
amendment. I do not think we need to stall an additional 90 days. If it
is a crisis, I do not think we should give minors or people over 21 an
additional 3 months to purchase alcohol illegally over the Internet.
Likewise, I do not think you need a study for 180 days from the
Attorney General to the State attorneys general telling them that
illegal wine sales are occurring. They are occurring. Everybody knows
they are occurring.
Again the only thing this bill does, the overall bill that she is
seeking to amend, is it differentiates between illegal alcoholic sales
and legal alcoholic sales.
Mr. CONYERS. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from Michigan.
Mr. CONYERS. I was wondering over here on our side, if we strike out
the not taking effect for 90 days and make this a straight study, would
that meet the objections and then the approval of the leadership on
that side?
Mr. SCARBOROUGH. Again, my only concern with that is if we strike out
the 90 days, I am concerned that that gives in to the argument that
this measure strictly is concerned with illegal sales to people under
the age of 21.
The CHAIRMAN pro tempore. The time of the gentleman from Florida (Mr.
Scarborough) has expired.
(On request of Mr. Conyers, and by unanimous consent, Mr. Scarborough
was allowed to proceed for 2 additional minutes.)
Mr. SCARBOROUGH. I continue to yield to the gentleman from Michigan.
Mr. CONYERS. Suppose we make it a study of the impact of this
legislation assuming that it passes, so that there would be no taking
of effect and it would have no negative implications.
Mr. SCARBOROUGH. If it will have no negative effect on the effective
date, I certainly will consider it. I cannot give the gentleman an
answer right now, but I certainly would consider that. My main concern
is that we do not delay implementation of this obviously, because if it
is a national crisis, as the gentlewoman from Texas says it is, we do
not want to waste 3 months.
Mr. BARR of Georgia. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from Georgia.
Mr. BARR of Georgia. I am still not quite sure what the purpose of a
study just to have a study is. Members on the other side have spoken
very eloquently in committee as well as on the floor today recognizing
that there is indeed a very serious national problem with underage
drinking. That conclusion has been reached in the absence of a magical
study by the Attorney General. So we all know there is a problem out
there. This bill has nothing to do with Federal authorities. This bill
has to do with the authorities of State attorneys general, not the
United States Attorney General. I think this is makework, I do not
think we need this, and I would urge my colleagues, and especially the
gentleman from Florida, to oppose the amendment as unnecessary and
costly. The Attorney General of the United States has far too many
issues, including what I presume my colleagues on the other side would
agree is inadequate enforcement of gun
[[Page H6885]]
laws already, and now we are saying take some of those scarce resources
and conduct a study of an issue that we are not even proposing here
because what we are proposing here is the authority of State attorneys
general, not the U.S. Attorney General. I would oppose the amendment.
Mr. SCARBOROUGH. Reclaiming my time, let me ask the gentleman, is he
saying here that it is his position that this study would not delay the
implementation of this?
Mr. CONYERS. Absolutely. I am trying to save time actually, I am
trying not to go to a vote and all of that, if we could merely have the
impact of the legislation studied, which is not inconsistent with
anything in the bill, nor anything that either of us on either side
have debated in this matter.
The CHAIRMAN pro tempore. The time of the gentleman from Florida (Mr.
Scarborough) has again expired.
Mr. CONYERS. Mr. Chairman, I move to strike the last word.
Mr. Chairman, what we are trying to do is suggest that there be a
study, an impact study on the legislation if and when it is passed. I
do not think that will hurt anybody pro or con. It should be very
helpful to us, particularly on the Committee on the Judiciary, who will
be looking at this matter across the years. This is not some fly-by-
night provision. And it expedites time. We are working under 2 hours of
amendments. The gentlewoman from California has an amendment she would
like to put forward. It would save us a vote. I think that without a
not taking effect for 90 days taken out of this, we are in a position
to move forward expeditiously.
Mr. SCARBOROUGH. Mr. Chairman, will the gentleman yield?
Mr. CONYERS. I yield to the gentleman from Florida.
Mr. SCARBOROUGH. We have concerns from the gentleman from Georgia
regarding the cost of this. Is there any estimate, CBO estimate or any
other estimate on what the cost of this study would be? Because
certainly if it is a national crisis, as you say it is, it is certainly
something that we need to address and we need to know the depth of that
national crisis and certainly we know what kind of impact this is
having.
{time} 1445
Mr. CONYERS. Mr. Chairman, let me comfort the gentleman by saying
that I am sure that the Attorney General has one or two or three people
who could conduct a study here that would be negligible in the budget
of the Department of Justice. I think cost would be no immediate
concern whatsoever.
Mr. SCARBOROUGH. Mr. Chairman, if the gentleman would yield one more
time?
Mr. CONYERS. Of course.
Mr. SCARBOROUGH. Mr. Chairman, is the gentleman also willing to get
rid of the age issue and not only look at under-age, illegal alcohol
sales to under age drinkers, but also illegal bootlegging for all ages?
Would he be willing to do that?
Mr. CONYERS. Yes, we are looking at an impact of this entire
legislation. So we have taken out the specific references.
Mr. SCARBOROUGH. So, Mr. Chairman, all aspects of this legislation,
including lost revenues to States to enforce their laws.
Mr. CONYERS. Absolutely.
Mr. SCARBOROUGH. Mr. Chairman, I have got to say I have no objection
to that. I would like to see the draft.
Mr. CONYERS. Mr. Chairman, we assure the gentleman that there is
nothing but fairness exuding from this side of the aisle, no
underhanded motives, and the impact study of the legislation, nothing
could be more neutral than that.
Mr. SCARBOROUGH. Certainly, and if the gentleman would yield, if the
gentlewoman would withdraw this amendment and then have the modified
language offered at the desk, I would have no objection to that.
Mr. CONYERS. There is no other way we can do that.
I want to assure the gentleman that from my point of view there is no
other way we can proceed without withdrawing this and advancing the
other, and because I know the gentleman's good faith is no less than
mine, I am prepared to go that way.
Mrs. MALONEY of New York. Mr. Chairman, I rise in opposition to this
bill and in support of the amendment offered by my friend from
California.
I share the concern of my friend from Florida and other supporters
that we must do everything possible to reduce underage drinking, and I
would be proud to vote for this bill if I thought it would achieve that
goal.
But in reality, Mr. Chairman, this bill will do little to stop
underage drinking while potentially crippling an industry that is very
important to our nation and to my home state of New York.
New York, like many other states across the country, has a thriving
wine industry dominated by small vineyards.
These vineyards have taken advantage of the Internet to sell their
products across the nation.
The vast majority of these sales are to responsible adult consumers.
This legislation threatens these small wineries by permitting other
states to seek action in federal court to block them from distributing
their wines.
This bill is an unjustified intrusion by the federal government into
matters that should be left to the states. It is opposed by the
National Conference of State Legislatures--the very same people that
this bill is supposed to be helping. Moreover, it would effectively
give states the authority to regulate interstate commerce, in direct
violation of the Constitution.
Mr. Chairman, the real purpose of this bill is not to prevent
underage drinking. The real purpose of this bill is to protect the
large beer and wine wholesalers from competition from independent
producers, like many of the small wineries found in my home state of
New York.
The amendment, by contrast, will target our efforts toward preventing
underage drinking, where they belong.
I urge my colleagues to support this amendment, and to oppose this
bill.
The CHAIRMAN. All time authorized under the rule for consideration of
amendments is now expired.
The question is on the amendment offered by the gentlewoman from
Texas (Ms. Jackson-Lee).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I object to the vote on the
ground that a quorum is not present and make the point of order that a
quorum is not present.
The CHAIRMAN. The Chair will count for a quorum.
Ms. JACKSON-LEE of Texas. Mr. Chairman, can we ask unanimous consent
for additional time of 10 minutes? It is always better when we can work
together.
I ask unanimous consent for an additional 10 minutes to be able to
respond to these concerns and work out some of the issues that we are
working on.
The CHAIRMAN. The Chair continues to count for a quorum, but the
gentlewoman from Texas is advised that the Committee of the Whole
cannot entertain such a unanimous consent request to change the rule
adopted by the House.
Does the gentlewoman withdraw her request?
Ms. JACKSON-LEE of Texas. Can the Chair restate the motion that he
cannot entertain for clarification?
The CHAIRMAN. The Committee of the Whole may not entertain such a
unanimous consent request.
Ms. JACKSON-LEE of Texas. All right, Mr. Chairman. I now withdraw my
request for a vote.
The CHAIRMAN. The request for a vote on Amendment No. 4 offered by
the gentlewoman from Texas (Ms. Jackson-Lee) is withdrawn.
The amendment is rejected.
The question is on the committee amendment in the nature of a
substitute, as amended.
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The CHAIRMAN. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Calvert) having assumed the chair, Mr. Barrett of Nebraska, Chairman of
the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R.
2031) to provide for injunctive relief in Federal district court to
enforce State laws relating to the interstate transportation of
intoxicating liquor, pursuant to House Resolution 272, he reported the
bill back to the House with an amendment adopted by the Committee of
the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the committee
amendment in the nature of a substitute
[[Page H6886]]
adopted by the Committee of the Whole? If not, the question is on the
committee amendment in the nature of a substitute.
The committee amendment in the nature of a substitute was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. BARR of Georgia. Mr. Speaker, I object to the vote on the ground
that a quorum is not present and make the point of order that a quorum
is not present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas 325,
nays 99, not voting 9, as follows:
[Roll No. 363]
YEAS--325
Abercrombie
Aderholt
Allen
Archer
Armey
Bachus
Baird
Baker
Baldacci
Baldwin
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Becerra
Bentsen
Bereuter
Berkley
Berry
Biggert
Bilirakis
Bishop
Blagojevich
Bliley
Blunt
Boehlert
Boehner
Bonilla
Bonior
Bono
Boswell
Boyd
Brady (PA)
Brady (TX)
Brown (FL)
Brown (OH)
Bryant
Burr
Burton
Callahan
Camp
Campbell
Canady
Cannon
Capuano
Cardin
Castle
Chabot
Chambliss
Chenoweth
Clayton
Clement
Clyburn
Coble
Coburn
Collins
Combest
Condit
Cook
Cooksey
Costello
Coyne
Cramer
Crane
Crowley
Cubin
Cunningham
Danner
Davis (FL)
Davis (VA)
Deal
Delahunt
DeLay
DeMint
Deutsch
Diaz-Balart
Dickey
Dingell
Dixon
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Etheridge
Evans
Everett
Ewing
Filner
Fletcher
Foley
Ford
Fossella
Fowler
Franks (NJ)
Frelinghuysen
Frost
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Gonzalez
Goode
Goodlatte
Goodling
Goss
Graham
Granger
Green (TX)
Green (WI)
Greenwood
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hayes
Hayworth
Hefley
Herger
Hill (MT)
Hilleary
Hilliard
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Hooley
Hostettler
Hutchinson
Hyde
Isakson
Istook
Jefferson
Jenkins
John
Johnson (CT)
Johnson, E. B.
Johnson, Sam
Kanjorski
Kaptur
Kelly
Kennedy
Kind (WI)
King (NY)
Kingston
Kleczka
Klink
Knollenberg
Kolbe
Kucinich
LaFalce
LaHood
Lampson
Largent
Larson
Latham
Lazio
Leach
Levin
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Manzullo
Markey
Mascara
McCollum
McCrery
McGovern
McHugh
McInnis
McIntosh
McIntyre
McKeon
McNulty
Meehan
Menendez
Metcalf
Mica
Miller (FL)
Miller, Gary
Mink
Moakley
Moore
Moran (KS)
Moran (VA)
Morella
Murtha
Myrick
Neal
Ney
Northup
Norwood
Nussle
Oberstar
Obey
Olver
Ortiz
Ose
Pascrell
Payne
Pease
Peterson (MN)
Petri
Pickering
Pickett
Pitts
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Rahall
Ramstad
Regula
Reyes
Reynolds
Riley
Rivers
Rodriguez
Roemer
Rogan
Rogers
Ros-Lehtinen
Rothman
Roukema
Royce
Ryan (WI)
Ryun (KS)
Sabo
Salmon
Sanchez
Sanders
Sandlin
Sanford
Sawyer
Saxton
Scarborough
Schaffer
Scott
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Spence
Spratt
Stabenow
Stearns
Stenholm
Strickland
Stump
Stupak
Sununu
Sweeney
Talent
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thompson (MS)
Thornberry
Thune
Thurman
Tiahrt
Tierney
Toomey
Towns
Traficant
Turner
Udall (CO)
Upton
Visclosky
Walden
Walsh
Wamp
Watkins
Watt (NC)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Wexler
Weygand
Whitfield
Wicker
Wilson
Wise
Wolf
Wu
Young (AK)
Young (FL)
NAYS--99
Ackerman
Andrews
Berman
Blumenauer
Borski
Boucher
Buyer
Calvert
Capps
Carson
Clay
Conyers
Cox
Cummings
Davis (IL)
DeFazio
DeGette
DeLauro
Dicks
Doggett
Dooley
Engel
Eshoo
Farr
Fattah
Forbes
Gallegly
Gejdenson
Gordon
Gutierrez
Hastings (FL)
Hastings (WA)
Hill (IN)
Hinchey
Horn
Houghton
Hoyer
Hulshof
Hunter
Inslee
Jackson (IL)
Jackson-Lee (TX)
Jones (NC)
Jones (OH)
Kasich
Kildee
Kilpatrick
Kuykendall
LaTourette
Lee
Lewis (CA)
Lofgren
Lowey
Maloney (NY)
Martinez
Matsui
McCarthy (MO)
McCarthy (NY)
McKinney
Meek (FL)
Meeks (NY)
Millender-McDonald
Miller, George
Minge
Nadler
Napolitano
Nethercutt
Owens
Oxley
Packard
Pallone
Pastor
Paul
Pelosi
Phelps
Pombo
Radanovich
Rangel
Rohrabacher
Roybal-Allard
Rush
Schakowsky
Serrano
Shays
Sherman
Skelton
Slaughter
Stark
Tauscher
Tauzin
Thomas
Thompson (CA)
Udall (NM)
Velazquez
Vento
Waters
Waxman
Weiner
Woolsey
NOT VOTING--9
Bilbray
Frank (MA)
Gephardt
Lantos
McDermott
Mollohan
Peterson (PA)
Vitter
Wynn
{time} 1513
Mr. HASTINGS of Florida and Mr. ENGEL changed their vote from ``yea''
to ``nay.''
Messrs. CRANE, SISISKY, LaFACE, HINOJOSA, MALONEY of Connecticut,
CUNNINGHAM, LaHOOD, BLILEY, ADERHOLT and SAWYER and Ms. BROWN of
Florida changed their vote from ``nay'' to ``yea.''
So the bill was ordered to be engrossed and read a third time and was
read the third time.
The result of the vote was announced as above recorded.
{time} 1515
Motion to Recommit Offered by Mr. Conyers
Mr. CONYERS. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore (Mr. Calvert). Is the gentleman opposed to
the bill?
Mr. CONYERS. Yes, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Conyers moves to recommit the bill H.R. 2031 to the
Committee on the Judiciary with instructions to report the
bill forthwith to the House with the following amendment:
At the end of the bill, add the following:
SEC. 4. STUDY.
The Attorney General shall submit to the Congress the
results of a study to determine the impact of this Act. The
Attorney General shall carry out the study required by
subsection (a) and shall submit the results of such study not
later than 180 days after the date of enactment of this Act.
The SPEAKER pro tempore. The gentleman from Michigan (Mr. Conyers) is
recognized for 5 minutes on his motion to recommit.
Mr. CONYERS. Mr. Speaker, I wish the membership to know that there
was a vote taken on the third reading. That has only occurred about 2
times in recent years.
So this is a motion to recommit for which I will not ask a record
vote, and then there will be a final passage vote, which may or may not
be a record vote.
Mr. Speaker, this motion to recommit is simple. It merely provides
for a study to ascertain the impact of the legislation. It does not
limit the study to the impact on underage drinking or any other
specific area, although the amendment of the gentlewoman from Texas
(Ms. Jackson-Lee) originally did that.
This will give the Congress the information we need to assess how the
legislation is working so that we can determine any changes that might
be needed in the bill in the future.
As the bill passed the committee, I opposed it. I believed the bill
had the potential to burden Internet providers, to discriminate against
out-of-State winemakers, and to authorize discriminatory taxes. Many of
these concerns were addressed in the Goodlatte-Conyers-Cox amendment,
which passed.
The acceptance of this motion to recommit will offer an additional
modest improvement to the bill.
Mr. SCARBOROUGH. Mr. Speaker, will the gentleman yield?
Mr. CONYERS. I yield to the gentleman from Florida.
Mr. SCARBOROUGH. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, we can make this brief. I do not intend to oppose this
motion to recommit. I certainly understand
[[Page H6887]]
the concerns of many people from California and other wine-producing
regions, and understand their eagerness. I would like to thank them for
working with us to make this a better bill. I would also like to thank
them, in their eagerness, for allowing me the opportunity to vote on
the engrossment and third reading. I have not done that before. I thank
the gentleman from California that did that.
Mr. Speaker, I think this is very important for us to have this
study. I understand the gentleman's concerns. I thank the gentleman
from California (Mr. Cox) and others for coming together and having us
produce something that works. The study, I think, of the gentlewoman
from Texas (Ms. Jackson-Lee) would be helpful. As she said, we have a
national crisis right now regarding the sale of alcohol to minors, and
a national crisis on the sale of alcohol to people of majority age.
I thank the gentleman for working with us on the motion to recommit,
and I will be supporting it, as well as the final bill.
Mr. CONYERS. I thank the gentleman, Mr. Speaker. I urge the Members
to support the motion to recommit.
The SPEAKER pro tempore. If no Member rises in opposition, without
objection, the previous question is ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The motion to recommit was agreed to.
The SPEAKER pro tempore. The Chair recognizes the gentleman from
Florida (Mr. Scarborough).
Mr. SCARBOROUGH. Mr. Speaker, acting under the instructions of the
House on behalf of the Committee on the Judiciary, I report the bill,
H.R. 2031, back to the House with an amendment.
The SPEAKER pro tempore. The Clerk will report the amendment.
The Clerk read as follows:
Amendment:
At the end of the bill, add the following:
SEC. 4. STUDY.
The Attorney General shall submit to the Congress the
results of a study to determine the impact of this Act. The
Attorney General shall carry out the study required by
subsection (a) and shall submit the results of such study not
later than 180 days after the date of enactment of this Act.
The SPEAKER pro tempore. The question is on the amendment.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Ms. LOFGREN. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas 310,
nays 112, not voting 11, as follows:
[Roll No. 364]
YEAS--310
Abercrombie
Aderholt
Allen
Archer
Armey
Bachus
Baird
Baker
Baldacci
Baldwin
Ballenger
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Bass
Bateman
Becerra
Bentsen
Bereuter
Berkley
Berry
Biggert
Bilirakis
Bishop
Blagojevich
Bliley
Blunt
Boehlert
Boehner
Bonilla
Bonior
Bono
Borski
Boswell
Boyd
Brady (PA)
Brady (TX)
Brown (FL)
Brown (OH)
Bryant
Burr
Burton
Callahan
Camp
Campbell
Canady
Cannon
Capuano
Cardin
Castle
Chabot
Chambliss
Chenoweth
Clayton
Clement
Clyburn
Coble
Coburn
Collins
Combest
Condit
Cook
Costello
Coyne
Cramer
Crane
Crowley
Cubin
Cummings
Cunningham
Danner
Davis (FL)
Deal
Delahunt
DeLay
DeMint
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
Doyle
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Etheridge
Evans
Everett
Ewing
Fattah
Filner
Fletcher
Foley
Ford
Fossella
Fowler
Frank (MA)
Franks (NJ)
Frelinghuysen
Frost
Ganske
Gekas
Gephardt
Gilchrest
Gillmor
Gilman
Gonzalez
Goode
Goodlatte
Goodling
Graham
Granger
Green (TX)
Green (WI)
Greenwood
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (FL)
Hayes
Hefley
Herger
Hill (MT)
Hilleary
Hilliard
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Hooley
Hutchinson
Hyde
Isakson
Istook
Jefferson
Jenkins
John
Johnson (CT)
Johnson, E. B.
Johnson, Sam
Kanjorski
Kaptur
Kelly
Kildee
Kind (WI)
King (NY)
Kingston
Kleczka
Klink
Knollenberg
Kucinich
LaHood
Lampson
Largent
Larson
Latham
Lazio
Leach
Levin
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Manzullo
Markey
Mascara
McCollum
McHugh
McInnis
McIntosh
McIntyre
McNulty
Meehan
Menendez
Mica
Miller, Gary
Mink
Moakley
Moore
Moran (KS)
Morella
Murtha
Myrick
Neal
Ney
Northup
Norwood
Nussle
Oberstar
Obey
Olver
Ortiz
Ose
Pascrell
Pastor
Pease
Peterson (MN)
Petri
Pickering
Pickett
Pitts
Pomeroy
Porter
Price (NC)
Pryce (OH)
Quinn
Rahall
Ramstad
Regula
Reyes
Reynolds
Riley
Rivers
Rodriguez
Roemer
Rogan
Rogers
Ros-Lehtinen
Rothman
Roukema
Royce
Ryan (WI)
Ryun (KS)
Sabo
Salmon
Sanchez
Sanders
Sandlin
Sanford
Sawyer
Saxton
Scarborough
Schaffer
Scott
Sensenbrenner
Sessions
Shadegg
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Spence
Spratt
Stabenow
Stearns
Stenholm
Strickland
Stump
Stupak
Sununu
Sweeney
Talent
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thompson (MS)
Thornberry
Thune
Thurman
Tiahrt
Tierney
Toomey
Towns
Traficant
Turner
Udall (CO)
Udall (NM)
Upton
Visclosky
Walden
Walsh
Wamp
Watkins
Watt (NC)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Wexler
Weygand
Whitfield
Wicker
Wilson
Wise
Wolf
Young (FL)
NAYS--112
Ackerman
Andrews
Barton
Berman
Blumenauer
Boucher
Buyer
Calvert
Capps
Carson
Clay
Conyers
Cooksey
Cox
Davis (IL)
Davis (VA)
DeFazio
DeGette
DeLauro
Dixon
Doggett
Dooley
Doolittle
Dreier
Engel
Eshoo
Farr
Forbes
Gallegly
Gejdenson
Gibbons
Gordon
Goss
Gutierrez
Hastings (WA)
Hayworth
Hill (IN)
Hinchey
Horn
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Inslee
Jackson (IL)
Jackson-Lee (TX)
Jones (NC)
Jones (OH)
Kasich
Kilpatrick
Kolbe
Kuykendall
LaFalce
LaTourette
Lee
Lewis (CA)
Lofgren
Lowey
Maloney (NY)
Martinez
Matsui
McCarthy (MO)
McCarthy (NY)
McCrery
McGovern
McKeon
McKinney
Meeks (NY)
Metcalf
Millender-McDonald
Miller (FL)
Miller, George
Minge
Moran (VA)
Nadler
Napolitano
Nethercutt
Owens
Oxley
Packard
Pallone
Paul
Payne
Pelosi
Phelps
Pombo
Radanovich
Rangel
Rohrabacher
Roybal-Allard
Rush
Schakowsky
Serrano
Shaw
Shays
Sherman
Skeen
Slaughter
Stark
Tauscher
Tauzin
Thomas
Thompson (CA)
Velazquez
Vento
Waters
Waxman
Weiner
Woolsey
Wu
Young (AK)
NOT VOTING--11
Barcia
Bilbray
Kennedy
Lantos
McDermott
Meek (FL)
Mollohan
Peterson (PA)
Portman
Vitter
Wynn
{time} 1539
Mr. FOSSELLA changed his vote from ``nay'' to ``yea.''
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated for:
Mr. KENNEDY of Rhode Island. Mr. Speaker, on rollcall No. 364, final
passage of H.R. 2031, I was unavoidably detained. Had I been present, I
would have voted ``yea.''
Mr. PORTMAN. Mr. Speaker, on rollcall No. 364, I was detained in a
conference committee meeting and did not hear the bells. Had I been
present, I would have voted ``yea.''
____________________