Petition for Writ of Certiorari — D. Andrew Wilson, Attorney General of Ohio, Petitioner v. Kenneth M. Miller, et al.
Supreme Court briefJun 5, 2026
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No. _____
In the Supreme Court of the United States
______________________________
DAVE YOST, ATTORNEY GENERAL OF OHIO,
Petitioner,
v.
KENNETH M. MILLER; HOUSE OF GLUNZ, INC.,
Respondents.
______________________________
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________
APPENDIX
______________________________
DAVE YOST
Ohio Attorney General
MATHURA J. SRIDHARAN*
Ohio Solicitor General
*Counsel of Record
SAMUEL C. PETERSON
Deputy Solicitor General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614.466.8980
Mathura.Sridharan@OhioAGO.gov
Counsel for Petitioner
Dave Yost, Attorney
General of Ohio
TABLE OF CONTENTS
Page
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circuit, May 6, 2026 ............. 1a
Appendix B: Opinion, United States District
Court for the Southern District of Ohio, March
20, 2025 ................................................................... 38a
Appendix C: Order Denying Rehearing En
Banc, United States Court of Appeals for the
Sixth Circuit, September 11, 2023 ......................... 64a
Appendix D: Select Statutes .................................. 66a
1a
APPENDIX A
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________
Case No.
25-3305
DEREK BLOCK,
Plaintiff,
KENNETH M. MILLER; HOUSE OF GLUNZ, INC.,
Plaintiffs-Appellants,
v.
JAMES V. CANEPA, Superintendent of Liquor
Control, Ohio Division of Liquor Control,
Defendant,
DAVE YOST, Attorney General of Ohio,
Defendant-Appellee,
WHOLESALE BEER & WINE ASSOCIATION OF
OHIO,
Intervenor Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Ohio at Columbus.
No. 2:20-cv-03686—
Sarah Daggett Morrison, Chief Judge.
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Argued: February 24, 2026
Decided and Filed: May 6, 2026
Before: MOORE, CLAY, and MATHIS, Circuit
Judges.
______________________________
COUNSEL
ARGUED: James A. Tanford, EPSTEIN SEIF
PORTER & BEUTEL, LLP, Indianapolis, Indiana, for
Appellants. Michael J. Hendershot, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee Dave Yost. ON BRIEF: James A. Tanford,
EPSTEIN SEIF PORTER & BEUTEL, LLP,
Indianapolis, Indiana, for Appellants. Michael J.
Hendershot, Mathura J. Sridharan, Kaitlyn M.
Kachmarik, Samantha V. Rupp, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee. Martha Brewer Motley, Emily J. Taft,
Maxwell H. King, VORYS, SATER, SEYMOUR AND
PEASE LLP, Columbus, Ohio, for Intervenor
Appellee. Sean O’Leary, O’LEARY LAW AND
POLICY GROUP, LLC, Chicago, Illinois, John C.
Neiman, Jr., MAYNARD NEXSEN PC, Birmingham,
Alabama, Frederick R. Yarger, William P. Sowers, Jr.,
WHEELER TRIGG O’DONNELL LLP, Denver,
Colorado, for Amici Curiae.
______________________________
OPINION
______________________________
CLAY, Circuit Judge. Plaintiffs Kenneth M. Miller
and House of Glunz, Inc. challenge the
constitutionality of Ohio liquor laws preventing outof-state wine retailers from shipping wine directly to
Ohio consumers, Ohio Rev. Code §§ 4301.01(A)(2),
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4301.58(C), 4303.12, 4303.25, 4303.236(B)(1), 4303.27
(the “Direct Ship Restriction”), and prohibiting
individuals from transporting more than six bottles of
wine into Ohio during any 30-day period, id. §
4301.20(L) (the “Transportation Restriction”). On
appeal, Plaintiffs challenge the district court’s holding
that the Restrictions are constitutional. For the
reasons set forth below, we REVERSE the district
court and REMAND for further proceedings
consistent with this opinion.
BACKGROUND
Plaintiff Kenneth Miller is an Ohio resident who
wants to be able to order wine directly from out-ofstate retailers and to personally transport wine he
buys outside of Ohio back into the state. Plaintiff
House of Glunz is an Illinois retailer that wants to be
able to ship wine directly to Ohio consumers. Ohio
law, however, prohibits out-of-state retailers from
shipping wine directly to Ohio consumers (the “Direct
Ship Restriction”) and prohibits Ohio residents from
personally transporting more than six bottles of wine
into the state during any thirty-day period (the
“Transportation Restriction”). Miller and House of
Glunz thus filed suit alleging that the Direct Ship and
Transportation
Restrictions
impermissibly
discriminate against out-of-state businesses in
violation of the Commerce Clause.
The procedural and factual background relevant to
this appeal is set forth below.
1. Ohio’s Liquor Laws
Ohio, like many states, has a three-tier system for
regulating the sale and distribution of alcohol. In a
three-tier system, the state separates the entities
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involved in the distribution of alcohol into three
distinct tiers: alcohol manufacturers (tier one);
wholesale distributors (tier two); and retailers (tier
three). THREE TIERS AND A TIED HOUSE, OHIO DEP’T OF
COM.,
https://com.ohio.gov/divisions-andprograms/liquor-control/new-permit-info/guides-andresources/three-tiers-and-a-tied-house
[https://perma.cc/RV6N-ACK7] (last visited March 30,
2026). Generally, “the [first] tier makes the [alcohol]”
and “sells it to a distributor, who then sells it to a
retail location for sale to Ohio consumers.” Id. The
Ohio Division of Liquor Control issues “A” class
permits to entities it allows to operate as
manufacturers, “B” permits to wholesalers, and “C”
permits to retailers. See Ohio Rev. Code § 4303.01 et
seq. Generally, entities may not operate across more
than one tier—i.e., a manufacturer may not receive a
B permit to also act as a wholesaler—and alcohol
products must pass through each tier prior to reaching
the consumer. See id. § 4301.24.
Ohio has also, however, carved out several
exceptions that allow wine to reach end consumers
without going through the three-tier system.
Pursuant to Ohio Revised Code §§ 4303.232, 4303.233,
and 4303.236, both in- and out-of-state wineries may
acquire an S-1 or S-2 permit, which allows them to
directly ship up to twenty-four cases, or 288 bottles, of
wine a year to each Ohio household without routing
those sales through Ohio retailers or wholesalers.
Pursuant to Ohio Revised Code § 4303.071, in- and
out-of-state wineries may also acquire a B-2a permit
to sell wine directly to Ohio retailers without going
through an Ohio wholesaler—Ohio does not appear to
limit the amount of wine a winery may sell to Ohio
retailers. See id. §§ 4303.071(A)(3), 4301.24(E)(4) (a B-
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2a permit holder may operate as a wholesaler).
Because wineries can elect to rely on out-of-state
“fulfillment warehouse[s],” wine may flow from out-ofstate wineries to Ohio consumers without ever coming
to rest in Ohio wholesalers’ warehouses or on Ohio
retailers’ shelves. Id. § 4303.234(A)(1). Additionally,
before 2021, Ohio allowed some out-of-state retailers
who were also “brand owner[s]” or “importer[s] of . . .
wine” to ship wine directly to Ohio consumers. Id. §
4303.232(A)(1), (3) (2011) (repealed 2021) Although
Ohio has repealed that portion of the provision and no
longer issues new retail permits to brand owners or
importers, out-of-state entities who received permits
under the pre-2021 statute are allowed to continue
direct-to-consumer shipping.
In this case, Plaintiffs challenge two Ohio
restrictions relating to the importation of out-of-state
wine into Ohio. The first is the Direct Ship Restriction,
which is comprised of several different laws that work
together to ban out-of-state retailers from shipping
wine to Ohio consumers. Ohio issues a C-2 permit to
in-state retailers. Ohio Rev. Code § 4303.12. C-2
permittees may sell and ship wine directly to Ohio
consumers, id. § 4303.27, using “any means or
devices” including common carrier delivery of
products consumers purchase on the internet, id. §
4301.01(A)(2). And David Yost, Ohio’s Attorney
General (and the state official responsible for
enforcing Ohio’s liquor laws) has averred that
“retailers located solely outside Ohio cannot obtain a
C-2 permit from” Liquor Control, Answer, R. 37,
PageID #362, and that without this permit they are
prohibited from shipping wine to Ohio consumers,
Ohio Rev. Code §§ 4301.58(C), 4301.60, 4303.25,
4303.236(B)(1). Accordingly, in-state retailers may
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ship wine directly to Ohio consumers, but out-of-state
retailers like House of Glunz may not.
Plaintiffs also challenge the Transportation
Restriction contained in Ohio Revised Code §
4301.20(L). Section 4301.20(L) prohibits Ohio
consumers from transporting more than 4.5 liters, or
six bottles, of wine acquired outside of Ohio into the
state during any thirty-day period. Id. § 4301.20(L).
By contrast, Ohio consumers may transport up to
twenty-four cases, or 288 bottles, of wine within Ohio
so long as they purchased it from an Ohio seller. Id. §
4303.236(A).
A. First District Court Proceeding and Appeal
In 2020, Plaintiffs filed suit under 42 U.S.C. § 1983
against Ohio Attorney General David Yost and other
officials who enforce Ohio’s liquor code. 1 The
Wholesale Beer & Wine Association of Ohio
(“WBWAO”) intervened as a Defendant. Plaintiffs’
suit asserts that the Direct Ship and Transportation
Restrictions “discriminate[] against interstate
commerce, protect[] local economic interests, and
violate[] the Commerce Clause.” Compl., R. 1, PageID
#2. Plaintiffs seek “a declaratory judgment that the
1 Plaintiffs originally sued, in addition to Yost, Superintendent of
Liquor Control Jim Canepa, Director of the Ohio Department of
Public Safety Thomas Stickrath, and Chairperson of the Ohio
Liquor Control Commission Deborah Pryce. The district court
found that all of these individuals were immune from suit under
the Eleventh Amendment and dismissed the claims against
them. Plaintiffs challenged the dismissal of only the Director of
the Ohio Department of Public Safety Stickrath on appeal, and
we affirmed. Block v. Canepa, 74 F.4th 400, 411–12 (6th Cir.
2023). Accordingly, the only remaining Ohio defendant is
Attorney General Yost.
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[laws are] unconstitutional and an injunction barring
the defendants from enforcing” both laws. Id.
In 2022, the district court granted summary
judgment to Defendants after holding that the Direct
Ship Restriction constituted a valid exercise of Ohio’s
Twenty-first Amendment power to regulate the sale of
alcohol within its borders. The district court also
found that Plaintiffs lacked standing to challenge the
Transportation Restriction. Plaintiffs appealed, and
we reversed the district court’s determination that the
Direct Ship Restriction was constitutional, holding
that the district court had erred in treating this
Court’s decision in Lebamoff Enterprises Inc. v.
Whitmer, 956 F.3d 863 (6th Cir. 2020), as creating a
per se rule that state restrictions on direct-toconsumer wine shipments by out-of-state retailers
were constitutional. Block v. Canepa, 74 F.4th 400,
412-14 (6th Cir. 2023). We also reversed the district
court’s determination that Plaintiffs lacked standing
to challenge the Transportation Restriction. Id. at
410-11.
We clarified that, to determine if a discriminatory
alcohol law is constitutional, courts must apply a test
developed by the Supreme Court in Tennessee Wine &
Spirits Retailers Association v. Thomas, 588 U.S. 504
(2019). Under that test, a discriminatory law will
survive a Commerce Clause challenge if (1) it “can be
justified as a public health or safety measure or on
some other legitimate nonprotectionist ground,” and if
(2) its “predominant effect” is “the protection of public
health or safety,” rather than “protectionism.” See id.
at 539-40. We thus remanded, instructing the district
court to weigh the evidence submitted by both parties
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and then determine how the Restrictions fared under
the Tennessee Wine test. Block, 74 F.4th at 414.
B. Remand and Second Appeal
On remand, the parties engaged in additional
discovery and then again filed cross motions for
summary judgment on the questions of whether the
Direct Ship and Transportation Restrictions were
constitutional. Before applying the Tennessee Wine
test, the district court determined that, because the
Restrictions were “trusses supporting . . . the threetier system,” they could not “be excised for review
outside that context.” Block v. Canepa, 771 F. Supp.
3d 1010, 1020 (S.D. Ohio 2025). The district court thus
focused its Tennessee Wine analysis on the three-tier
system as a whole, not on the specifically challenged
provisions. See id. at 1021-24.
The district court determined that Defendants had
presented evidence showing that the three-tier system
could be justified as a public health and safety
measure because it allows Ohio “to keep close watch
over the movement and sale of wine throughout the
state” and to “control alcohol prices, including by
efficient collection of an excise tax at the wholesaler
lever [sic].” Id. at 1021-22. It also determined that the
evidence submitted by Plaintiffs was insufficient to
impeach or significantly undermine the health and
safety justifications offered by Defendants, and thus
concluded that the predominant effect of both
Restrictions was not protectionism, but the protection
of the public health and safety. Id. at 1023-24.
Accordingly, the court held both Restrictions
constitutional and again granted summary judgment
to Defendants. Id. at 1024. Plaintiffs appealed.
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DISCUSSION
Standing
Before reaching the merits of Plaintiffs’ challenge,
we address standing. See Kitchen v. Whitmer, 106
F.4th 525, 533 (6th Cir. 2024) (We “must resolve a
threshold jurisdictional issue like standing before
reaching the ‘merits’ of a case.”). Defendants advance
several different arguments as to why Plaintiffs lack
standing to challenge both the Direct Ship and
Transportation Restrictions. Although Defendants
raise some of these arguments for the first time in this
appeal, “standing is jurisdictional,” so “we may
address it at any point in the proceedings.” Kroll v.
White Lake Ambulance Auth., 691 F.3d 809, 813 (6th
Cir. 2012). We review questions of standing de novo.
In re Cannon, 277 F.3d 838, 852 (6th Cir. 2002).
To establish standing, a plaintiff must show that it
(1) suffered an “injury” that is (2) “fairly traceable to
the challenged action” and that is (3) “redressable by
a favorable ruling.” Murthy v. Missouri, 603 U.S. 43,
57 (2024) (citation omitted). All of Defendants’
standing arguments relate to the last element and
contend that Plaintiffs’ injuries cannot be redressed
by a judicial ruling. We disagree and hold that
Plaintiffs have standing to challenge both
Restrictions.
1. Direct Ship Restriction
Defendants first argue that Plaintiffs lack
standing to challenge the Direct Ship Restriction.
Before addressing the specifics of their arguments, a
few words about the methods for redressing a
Commerce Clause violation are in order. A federal
court may cure a discriminatory injury that violates
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the dormant Commerce Clause “by either ‘leveling up’
or ‘leveling down’” the restriction. See Comptroller of
Treasury of Md v. Wynne, 575 U.S. 542, 569 (2015).
Leveling up entails extending the withheld benefit to
out-of-state interests—in this case that would mean
allowing out-of-state retailers to ship wine to Ohio
consumers. See Sessions v. Morales-Santana, 582 U.S.
47, 72 (2017). Leveling down entails withholding the
benefit from both in- and out-of-state interests—in
this case that would mean leaving the Direct Ship
Restriction intact, but also forbidding in-state
retailers from direct-shipping to consumers. See id.
Either of these alternatives would redress the
discriminatory injury inflicted on Plaintiffs by
ensuring that there is no disparate treatment between
in- and out-of-state retailers. See Wynne, 575 U.S. at
569. Although Plaintiffs seek an injunction that would
allow out-of-state retailers to ship wine to Ohio
consumers (leveling up), “federal courts possess broad
discretion to fashion equitable remedies,” and it would
also be appropriate for the district court to cure their
injury by enjoining direct-to-consumer shipping by
Ohio retailers (leveling down). Coal. for Gov’t
Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435,
460 (6th Cir. 2004). This “partial redress” sufficiently
“satisf[ies] the standing requirement.” Parsons v. U.S.
Dep’t of Just., 801 F.3d 701, 716 (6th Cir. 2015).
We now turn to Defendants’ standing arguments,
beginning with Yost’s. As described above in section
I.A, Plaintiffs challenge several statutes that,
together, form the Direct Ship Restriction. However,
they do not explicitly challenge Ohio Revised Code §
4303.35, which requires “holders of [Ohio] retail
permits” to purchase the wine they sell to Ohio
consumers only from “holders of A or B permits.”
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According to Yost, even if the district court enjoined
the enforcement of the Direct Ship Restriction, §
4303.35 would still require out-of-state retailers to
obtain all of the wine they ship to Ohio consumers
exclusively from sellers located in Ohio because Ohio
issues A and B permits to only Ohio entities. 2 Yost
contends that this would make it practically
impossible for out-of-state retailers to direct-ship wine
to Ohio consumers because it would be economically
infeasible for them to buy wine from Ohio only to ship
it back to Ohio. Under Yost’s theory, this would leave
the direct shipping ban de facto in effect, rendering
Plaintiffs’ injury unredressed.
Yost’s argument is unconvincing for several
reasons. First, by its own terms, § 4303.35 does not
cover out-of-state retailers with no physical presence
in Ohio. Section 4303.35 applies to “holder[s] of retail
permits,” which for wine retailers is a C-2 permit. See
Ohio Rev. Code § 4303.12. “[R]etailers located solely
outside of Ohio cannot obtain a C-2 permit;” thus, if
an out-of-state retailer wants to sell wine in Ohio, it
must “establish[] a physical facility in Ohio.” Answer,
R.37, PageID #361-62. Accordingly, § 4303.35 does not
regulate retailers like House of Glunz who cannot
obtain a C-2 permit because they maintain no physical
presence in Ohio. Yost is thus incorrect that, in the
absence of the Direct Ship Restriction, § 4303.35
would necessarily apply to out-of-state retailers so as
to effectively keep the direct shipping ban in place.
Indeed, under the version of Ohio Revised Code §
2 Note that this contention is not correct because Ohio issues B-
2a permits to out-of-state wineries. See Ohio Rev. Code §
4303.071(A)(1).
12a
4303.232 that was repealed in 2021 that did allow
some out-of-state retailers to directly ship wine to
Ohio consumers, Ohio granted them an S permit to do
so, not a C-2 retail permit. See Ohio Rev. Code §
4303.232(A)(1), (3) (2011) (repealed 2021).
Moreover, even if Yost is correct that § 4303.35
would apply to out-of-state retailers if the Direct Ship
Restriction were enjoined, Plaintiffs’ injury would still
be redressable. First, the district court could take the
leveling down approach and enjoin direct-to-consumer
wine shipments by in-state retailers, which would
cure the discriminatory injury. Second, the court
might also be able to level up and extend shipping
benefits to out-of-state retailers by enjoining §
4303.35’s in-state purchase requirement. “The power
of the federal courts to remedy constitutional
violations is flexible . . . [and] [w]here such a violation
has been found, the court should tailor the remedy to
fit the nature and extent of the violation.” Doe v.
DeWine, 910 F.3d 842, 850-51 (6th Cir. 2018)
(alterations in original) (quoting United States v.
Yonkers Bd. of Educ., 837 F.2d 1181, 1235 (2d Cir.
1987)). So even though Plaintiffs did not specifically
challenge § 4303.35, it may be within a federal court’s
equitable powers to enjoin its purchase requirements
to the extent it frustrates efforts to cure the
constitutional violation. Because there is at least some
remedy the district court could issue no matter how
one interprets § 4303.35 and its relationship to the
Direct Ship Restriction, Yost’s standing arguments
fail.
Defendant WBWAO argues that Plaintiffs’ injuries
are not redressable because we lack authority to grant
the type of relief that Plaintiffs seek. It claims that
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because there is no one specific discriminatory statute
that we could strike down to cure Plaintiffs’ injury, the
only way to provide relief would be for us to effectively
“order, design, and implement a makeshift exception
for out-of-state wine retailers onto the Ohio Revised
Code.” Appellee WBWAO’s Brief at 52. This, according
to WBWAO, would constitute “impermissible
legislative drafting” that is “beyond the power of an
Article III court.” Id. (quoting Juliana v. United
States, 947 F.3d 1159, 1170 (9th Cir. 2020).
WBWAO is incorrect. The district court here could
certainly level down by removing in-state retailers’
ability to ship wine directly to consumers. This sort of
straightforward revocation of a benefit is well within
an Article III court’s powers. See Lebamoff, 956 F.3d
at 876 (acknowledging that any discriminatory injury
inflicted by Michigan’s wine-shipping restrictions
could have been redressed by leveling down the
statute). The court may also be able to level up and
enjoin the Direct Ship Restriction without
overstepping its constitutional bounds so long as it
does so in a way that is “faithful to legislative intent.”
Ayotte v. Planned Parenthood of N. New England, 546
U.S. 320, 331 (2006); see also Day v. Henry, 152 F.4th
961, 968 (9th Cir. 2025) (holding that the district court
could “[enjoin] the enforcement of the statutory
scheme as applied to all liquor retailers and
wholesalers inside and outside of [the state].”).
However, the fact that the district court could level
down the statute is enough on its own to satisfy the
redressability element. See Cooper v. USPS, 577 F.3d
479, 496 (2d Cir. 2009) (“Appellate tribunals have
accorded district courts broad discretion to frame
equitable remedies for constitutional violations so
long as the relief granted is commensurate with the
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scope of the constitutional infraction.” (citation
modified)).
Lastly, WBWAO says that Plaintiffs’ injuries are
not redressable because none of the provisions that
Plaintiffs challenge facially discriminate between inand out-of-state retailers. Their argument appears to
be that the lack of facial discrimination makes it
impossible for us to redress a facial challenge to the
statute. They claim that “because the statutes do not
discriminate between in-state and out-of-state
retailers in the first place, . . . declaring the challenged
statutes unconstitutional and enjoining their
enforcement would not redress any discrimination
between in-state and out-of-state retailers.” Appellee
WBWAO’s Br. at 50.
WBWAO is correct that the language of the
provisions that comprise the Direct Ship Restriction
does not explicitly differentiate between in- and outof-state retailers. But Ohio clearly understands these
statutes to authorize direct-to-consumer shipping
from only retailers with a physical presence. See
Answer, R.37, PageID #361-62 (admitting that out-ofstate retailers may not ship wine directly to Ohio
consumers under the relevant statutes). Indeed,
Ohio’s liquor permitting laws impose an in-state
presence requirement. See Ohio Rev. Code §§
4301.10(A)(6) (Liquor Control must “[c]onduct
inspections of liquor permit premises”); 4303.27
(authorizing permit holders “to carry on the business
specified at the place . . . described” in the permit);
4303.29(B)(2)(a) (capping the number of retail store
permits Ohio issues in each of the state’s taxing
districts based on that district’s population);
4303.292(A)(2)(a)-(d) (Liquor Control may refuse to
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grant a permit for issues relating to the physical
location of a business). Given that Ohio presumes that
its laws do not have extraterritorial effect, these
location-based regulations contemplate a C-2 permit
holder’s in-state presence. See State ex rel. Haavind v.
Crabbe, 151 N.E. 755, 757 (Ohio 1926) (“[T]he laws of
a state, generally speaking, have no force beyond the
state’s territorial limits.”). Indeed, in the instances
where Ohio’s liquor code allows out-of-state entities to
sell wine in Ohio without going through Ohio
wholesalers, it says so explicitly. See, e.g., Ohio Rev.
Code §§ 4303.232(A)(1), (C)(1) (stating that “[i]f the
person resides outside this state” and is a wine
manufacturer, he may acquire a permit to ship wine
directly to Ohio consumers); 4303.233(B)(1), (D)(1)
(same); 4303.234(A)(1) (allowing a “person that
operates a warehouse that is located outside this
state” to fulfill a permitted winery’s orders by
shipping “wine to personal consumers). Against this
backdrop, it is clear that the statutes challenged by
Plaintiffs allow direct shipping by only in-state
entities. WBWAO’s contention that the lack of facial
discrimination robs Plaintiffs of standing thus fails.
Accordingly, we hold that Plaintiffs have standing
to challenge the Direct Ship Restriction.
2. Transportation Restriction
Defendant Yost also argues that Plaintiffs’
challenge to the Transportation Restriction is not
redressable because the statute containing the
Restriction, Ohio Rev. Code § 4301.20(L), is an
exception to Ohio’s blanket ban on transporting any
wine into the state. This total prohibition is contained
in a separate and unchallenged provision, § 4303.25.
According to Yost, if we enjoin § 4301.20(L), which
16a
allows a consumer to bring six bottles of wine into
Ohio, § 4303.25’s total ban would remain intact and
forbid consumers from bringing any out-of-state wine
into the state. Under Yost’s version of events,
Plaintiffs’ injury would thus be left unredressed.
Yost’s argument is misplaced. He is correct that
the redressability element is not satisfied where,
“notwithstanding any action [a court] might take” in
response to a plaintiff’s suit, an unchallenged,
overlapping law regulating the same conduct “would
remain in place” and inflict the same alleged injury on
the plaintiff. White v. United States, 601 F.3d 545, 552
(6th Cir. 2010). But this principle does not apply to the
instant case because enjoining § 4301.20(L)’s six bottle
limit would cure Plaintiffs’ injury, even with § 4303.25
remaining in place.
Section 4303.25 reads, in relevant part:
No person . . . shall . . . transport, import, or cause
to be transported or imported any . . . alcohol in or
into this state for delivery, use, or sale, unless the
person has fully complied with this chapter and
Chapter 4301 of the Revised Code . . .
Ohio Rev. Code § 4303.25 (emphasis added). The
italicized language instructs that, the general
transportation ban notwithstanding, the importation
of alcohol is permissible in certain circumstances.
Section 4301.20(L) then clarifies that one of the
circumstances in which importing wine is permissible
is where a 21-or-above Ohio resident brings wine into
Ohio for “personal use and not for resale,” and if he
brings “not more than . . . four and one-half liters of
wine . . . in any thirty-day period.” If we struck down
the 4.5-liter limit, § 4301.20(L) would instead clarify
that wine importation is permissible under § 4303.25
17a
so long as the importing consumer is of-age and the
wine is “for personal use and not for resale.” This
would leave consumers free to bring up to 288 bottles
of out-of-state wine into Ohio per year, remedying the
discrepancies between the amount of out-of-state
versus in-state wine a consumer may purchase and
transport, thus curing Plaintiff Miller’s injury. See
Ohio Rev. Code § 4303.236(A).
Yost’s argument works only if we accept his
contention that Plaintiffs’ suit necessarily seeks to
strike down § 4301.20(L) in its entirety, and not
simply the parts of that provision that discriminate
against out-of-state retailers. But that framing
mischaracterizes Plaintiffs’ argument. Throughout
this suit, Plaintiffs have clearly limited their
challenge specifically to “the provisions in Ohio Rev.
Code § 4301.20 that prohibit[] Ohio residents from
personally transporting more than 4.5 liters of wine,”
not the non-discriminatory components of the statute.
Compl., R.1, PageID #7 (emphasis added). And in any
event, federal courts may exercise their equitable
power to fashion remedies narrowly if they see fit. See
Coal. for Gov’t Procurement, 365 F.3d at 460
(“[F]ederal courts possess broad discretion to fashion
equitable remedies.”). In this case, an appropriate and
narrow remedy to cure Plaintiffs’ injury would be to
enjoin only the six bottle limit.
Accordingly, the injury to Plaintiffs inflicted by the
Transportation Restriction is redressable, and
Plaintiffs thus have standing to challenge the
Restriction.
Constitutionality
Because Plaintiffs have standing to challenge both
the Direct Ship and Transportation Restrictions, we
18a
turn to the question of constitutionality. We review
the district court’s grant of summary judgment to the
Defendants de novo. Levine v. DeJoy, 64 F.4th 789,
796 (6th Cir. 2023). A party is entitled to summary
judgment if, based on the record as a whole, there are
no genuine disputes of material fact that could lead a
factfinder to find for the moving party’s opponent. Fed.
R. Civ. P. 56(a); see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The
mere existence of a scintilla of evidence in support of
the [non-moving party’s] position” is “insufficient” to
defeat the moving party’s motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
To determine whether the Direct Ship and
Transportation Restrictions are constitutional, we
need to understand the relationship between the
Constitution’s Twenty-first Amendment and the
Commerce Clause. Section 2 of the Twenty-first
Amendment states that “[t]he transportation or
importation into any State . . . for delivery or use
therein of intoxicating liquors, in violation of the laws
thereof, is hereby prohibited.” U.S. Const. amend.
XXI, § 2. It “delegates to each State the choice whether
to permit sales of alcohol within its borders and, if so,
on what terms and in what way.” Lebamoff, 956 F.3d
at 868. According to the dormant Commerce Clause,
however, a state law that discriminates “against outof-state goods or nonresident economic actors” is
unconstitutional unless “it is narrowly tailored to
advance a legitimate local purpose.” Tenn. Wine, 588
U.S. at 518 (cleaned up). In short, the Twenty-first
Amendment “grants States latitude with respect to
the regulation of alcohol” but does not “allow[] the
States to violate the nondiscrimination principle” of
19a
the dormant Commerce Clause. Id. at 533 (cleaned
up).
In Tennessee Wine, the Supreme Court developed a
constitutionality test that balances the latitude of the
Twenty-first Amendment with the limits of the
dormant Commerce Clause. “A discriminatory state
liquor law will survive a dormant Commerce Clause
challenge if (1) it ‘can be justified as a public health or
safety measure or on some other legitimate
nonprotectionist ground,’ and (2) its ‘predominant
effect’ is ‘the protection of public health or safety,’
rather than ‘protectionism.’” Block, 74 F.4th at 413
(quoting Tenn. Wine, 588 U.S. at 539-40). The district
court applied the Tennessee Wine test and concluded
the Direct Ship and Transportation Restrictions were
valid exercises of Ohio’s Twenty-first Amendment
authority to regulate alcohol sales within its borders.
Block, 771 F. Supp. 3d at 1020-24.
We disagree with this conclusion. Based on the
record as a whole, and analyzing the constitutionality
of the Restrictions under the correct legal framework,
we conclude that neither Restriction can be justified
as a legitimate health and safety measure. Because
the connection between both Restrictions and Ohio’s
purported health and safety objectives is tenuous or
nonexistent, the predominant effect of both
Restrictions is protectionism. We thus hold the Direct
Ship
and
Transportation
Restrictions
unconstitutional under the dormant Commerce
Clause.
1. Legal Framework
We first address the appropriate legal framework
for analyzing the Restrictions. The district court
determined that the Direct Ship and the
20a
Transportation
Restrictions
were
“essential
components of Ohio’s three-tier system” of alcohol
regulation and could not be “excised for review outside
that context.” Block, 771 F. Supp. 3d at 1021, 1024. It
thus applied the Tennessee Wine test not to each
individual Restriction, but to Ohio’s three-tier system
as a whole. It then concluded that the Restrictions
were constitutional by virtue of the fact that they were
supposedly essential to Ohio’s “unquestionably
legitimate” three-tier system. Granholm v. Heald, 544
U.S. 460, 489 (2005) (citation omitted); see Block, 771
F. Supp. 3d at 1020-1024.
The district court erred in applying this “essential
feature” framework. We have clearly held that “a
state’s alcoholic-beverages law is not automatically
valid simply because it addresses a portion of a threetier system.” Byrd v. Tennessee Wine & Spirits
Retailers Association, 883 F.3d 608, 620 (6th Cir.
2018). This is because The Twenty-first Amendment
does not “sanction[] every discriminatory feature that
a State may incorporate into its three-tiered scheme.”
Tenn. Wine, 588 U.S. at 535. The Twenty-first
Amendment protects features “essential” to “the basic
three-tiered model of separating producers,
wholesalers, and retailers,” but beyond that, “each
variation must be judged based on its own features.”
Id.
At the outset, we have little difficulty concluding
that the Restrictions are neither basic nor essential
components of three-tier systems. Many states with
three-tier systems allow both in- and out-of-state wine
retailers to ship wine directly to their residents, see B21 Wines, Inc. v. Bauer, 36 F.4th 214, 235 (4th Cir.
2022) (Wilkinson, J., dissenting) (identifying eleven
21a
states that eschew direct-ship restrictions), so directship restrictions are hardly instrumental to the
existence of three-tier schemes, Tenn. Wine, 588 U.S.
at 535 (concluding that residency requirements are
“not . . . essential feature[s] of . . . three-tiered
scheme[s]” because “[m]any . . . schemes do not impose
. . . any residency requirements”). A state can easily
maintain three distinct tiers and treat in-state and
out-of-state retailers evenhandedly with respect to
direct-shipping—the three-tier system remains intact
whether the state permits or proscribes direct
shipping for both in-state and out-of-state retailers.
Transportation limits are likewise not essential to
three-tier systems because they do nothing to help
“separat[e] producers, wholesalers, and retailers.”
Tenn. Wine, 588 U.S. at 535.
Thus,
contrary
to
the
district
court’s
determination, there is no rule telling courts to use an
“essential feature” approach to analyze the
Restrictions at issue here. Lebamoff merely suggests
that it may be appropriate to apply the essential
feature framework in some circumstances, depending
on the specifics of the challenged law, how vital the
law is to the state’s three-tier system, and the
evidence presented by the parties. See Lebamoff, 956
F.3d at 877 (McKeague, J. concurring, joined by
Donald, J.) (“Michigan has presented enough
evidence, which the plaintiffs have not sufficiently
refuted, to show its in-state retailer requirement
serves the public health.”); see also Anvar v. Dwyer, 82
F.4th 1, 10-11 (1st Cir. 2023) (“[T]here is nothing
inherent in the three-tier system . . . that necessarily
demands an in-state-presence requirement for
retailers.”). This is precisely why we previously
explained that “Lebamoff did not hold that direct ship
22a
restrictions are always constitutional” and directed
the district court to “consider Plaintiffs’ evidence in
this case concerning Ohio’s Direct Ship Restriction.”
Block, 74 F.4th at 413-14.
In this case, it is clear that neither Restriction is
an essential feature of Ohio’s three-tier system
because Ohio does not actually have a three-tier
system with respect to wine. 3 As discussed above in
section I.A., Ohio broadly uses a three-tier system to
regulate alcohol sold in the state, but has also carved
out extensive wine-specific exceptions to the three-tier
system. Out-of-state wineries may already directly
ship up to 288 bottles to wine to each Ohio household
every year and sell an unlimited amount of wine to
Ohio retailers without going through a wholesaler. See
Ohio Rev. Code §§ 4303.071(A)(3), 4303.232(C)(1),
4303.233(D)(1). Fulfillment warehouses located
outside Ohio can ship wine, on behalf of a licensed
winery, straight to Ohio households. Id. §
4303.234(A)(1). And some out-of-state retailers
grandfathered into Ohio’s retail permit scheme under
the pre-2021 version of § 4303.232 continue to make
direct wine shipments in the state. These exceptions
create numerous pathways for out-of-state wine to
enter Ohio’s market without going through the three
tiers—including via direct-consumer shipping. We
thus conclude that Ohio does not actually maintain a
three-tier system through which “all [wine] passes
3 We
do not suggest that it is always appropriate to use the
essential feature approach if a regulation is an essential
component of a state’s three-tier system. We focus our analysis
on the role the Restrictions at issue in this case play in the threetier system simply because they are non-essential, meaning the
essential feature framework is inapplicable.
23a
before reaching consumers.” Lebamoff, 956 F.3d at
868. The Direct Ship and Transportation Restrictions
cannot be essential features of a system that does not
exist for wine.
The Transportation Restriction, § 4301.20(L), is
also not essential for the additional reason alluded to
above: there is no clear relationship between §
4301.20(L) and the regulatory aims of the three-tier
system. Ohio’s three-tier system regulates how alcohol
is “brought . . . to market” and sold in the state.
Lebamoff, 956 F.3d at 867. Section 4301.20(L),
however, does not regulate an activity with a direct
relationship to the marketing or distribution-for-sale
of alcohol, but rather the transport of alcohol into Ohio
“for personal use and not for resale.” Ohio Rev. Code §
4301.20(L) (emphasis added). Defendants vaguely
aver that allowing consumers to bring an unlimited
amount of out-of-state wine into Ohio would
undermine the state’s ability to control the price of
wine in Ohio’s market. But they provide no concrete
evidence demonstrating that wine imported by
consumers for personal use actually has this, or any
other, effect on wine for sale in Ohio.
Because neither Restriction is essential to Ohio’s
three-tier system, the district court should have
applied this Circuit’s normal framework for analyzing
the constitutionality of state alcohol laws and
considered how each individual Restriction “stacks up
against the Tennessee Wine test.” Block, 74 F.4th at
414. Accordingly, we proceed to analyze each
Restriction under Tennessee Wine on its own terms,
not in the context of the three-tier system.
24a
2. Direct Ship Restriction
We begin with the Direct Ship Restriction. The
parties agree that this Restriction discriminates
between in- and out-of-state interests because it
allows direct-to-consumer wine shipping by the former
but not the latter. See supra section I.A. Applying the
Tennessee Wine test to the Restriction, we ask whether
it can be justified on legitimate “health and safety
grounds” or whether its “predominant effect” is
protectionism. 588 U.S. at 539-40. As we evaluate the
evidence in the record, we are guided by the Supreme
Court’s caution that “‘mere speculation’ or
‘unsupported assertions’ are insufficient to sustain a
law that would otherwise violate the Commerce
Clause.” Id. at 539 (quoting Granholm, 544 U.S. at
490, 492).
Defendants offer three primary health and safety
justifications for the Direct Ship Restriction. They
claim that the Restriction ensures that Ohio is able to:
(1) physically access wine retailers to perform on-site
safety inspections; (2) impose price controls and taxes
on wine sold in the state, which in turn promotes
temperance; and (3) monitor and curb underage
drinking. However, the record as a whole
demonstrates that the connection between the Direct
Ship Restriction and these purported objectives is
tenuous and unsubstantiated, leading us to conclude
that the Restriction’s predominant effect is
protectionism, in violation of the Commerce Clause.
To explain how we reach this conclusion, we walk
through each of Defendants’ purported health and
safety justifications for the Restriction.
25a
i. Physical Presence Requirement
Defendants contend that the ban on direct-toconsumer shipping from out-of-state retailers is
designed to require retailers to maintain a physical
presence in Ohio, thus ensuring that Ohio liquor
enforcement agents can physically inspect wine
sellers for product safety violations. Yost submitted
evidence showing that enforcement agents routinely
inspect the premises of state-issued alcohol permit
holders. Between September 1, 2021, and January 31,
2024, for example, Ohio conducted several thousand
inspections and issued 935 notices and 46 citations to
alcohol permit holders.
Yost offers one wine-specific instance where the
physical presence requirement helped the state
enforce its product safety objectives. In 2021, a
consumer reported falling ill after drinking “Saint
Sadler” wine, and the Division of Liquor Control
traced the tainted wine from its Ohio retailer back to
an individual in Cleveland who used unsanitary
production methods. The Division then confiscated
hundreds of bottles of contaminated wine from the
manufacturer and retailers across Ohio. According to
Yost, “Ohio could not have removed similarly unsafe
wine from out-of-state retail shelves as it lacks the
power and authority to inspect out-of-state retailers
and to seize unsafe product from their inventory, even
if the contaminated wine was intended for sale or
shipment to Ohioans.” Appellee Yost Br. at 34-35.
The connection this evidence demonstrates
between the physical presence requirement and
Ohio’s purported safety aims is weak. First,
Defendants are able to offer only one example, the
Saint Sadler incident, where the physical presence
26a
requirement helped Ohio root out unsafe wine—all of
their other examples relate to alcohol in general. The
Saint Sadler example is also of limited value: there,
an unlicensed in-state producer sold wine he brewed
using a home winemaking kit, in direct contravention
of Ohio law. This isolated example of an amateur
vintner illegally smuggling homemade wine into the
stream of commerce sheds little light on health and
safety risks stemming from wine sold by professional
retailers. Indeed, Defendants are unable to point to a
single piece of concrete evidence demonstrating
tangible risks stemming from the interstate shipping
of wine from professional, licensed retailers—and the
fact that Ohio already allows interstate direct-toconsumer shipping from licensed sellers (wineries)
suggests that it is safe, “weaken[ing] the public health
justifications” for the Direct Shipping Restriction.
Lebamoff, 956 F.3d at 877 (McKeague, J. concurring,
joined by Donald, J.).
Additionally,
Defendants’
own
evidence
demonstrates that an in-state presence requirement
is not necessary to pursue its product safety aims. See
Tenn. Wine, 588 U.S. at 540 (concluding that the
state’s purported health and safety rationales are
undermined by the existence of nondiscriminatory
alternatives). As discussed above, Ohio already allows
wineries to ship large amounts of out-of-state wine
into its state. See Ohio Rev. Code §§ 4303.071(A)(3),
4303.232(C)(1), 4303.233(D)(1). WBWAO contends
that we should discount this glaring exception to the
Direct Ship Restriction’s presence requirement
because “wineries are required to obtain a federal
permit and comply with various federal . . . laws,”
providing “an added layer of accountability not
present with retailers.” Appellee’s WBWAO Br. at 30.
27a
Yet Ohio has no qualms about allowing its residents
to drink wine shipped straight from out-of-state
“fulfillment houses” and “brand owners,” even though
these entities receive no federal oversight and sit
beyond the reach of Ohio inspectors. Ohio Rev. Code
§§ 4303.232(A)(1), (3) (2011) (repealed 2021),
4303.234(A)(1). WBWAO, therefore, fails to explain
why it is safe for Ohio residents to drink wine
purchased from out-of-state wineries, fulfillment
houses, and brand owners, but not retailers.
Furthermore, Ohio law imposes numerous
requirements on wineries that allow the state to track
the wine entering the state and ensure its safety. Ohio
requires these out-of-state wineries to (1) “keep a
record of each shipment of . . . wine that [it] sends to a
personal consumer,” (2) “provide a copy of each . . .
wine shipment invoice to the tax commissioner” that
“include[s] the name of each personal consumer that
purchased . . . wine from the” winery, (3) provide an
annual report to the Division of Liquor Control that
“include[s] the name and address of each personal
consumer that purchased . . . wine” from the winery
and the amount they purchased, and (4) “notify a
personal consumer of any health or welfare recalls of
the . . . wine” they purchased. Id. §§ 4303.232(C)(3)(a)(c), 4303.233(D)(3)(a)-(c) (same). The law also requires
that all out-of-state wineries shipping wine into Ohio
comply with the permitting and licensing
requirements for wine manufacturers in their home
states. Id. §§ 4303.232(A)(1); 4303.233(B)(1). In short,
Ohio has shown that it is possible to track out-of-state
wine sold in Ohio and regulate its safety without
requiring an in-state presence. See Granholm, 544
U.S. at 492 (noting that “improvements in technology
have eased the burden of monitoring out-of-state”
28a
entities); see also Tenn. Wine, 588 U.S. at 541 (“In this
age of split-second communications by means of
computer networks . . . there is no shortage of less
burdensome, yet still suitable, options” to maintain
oversight over alcohol retailers (quotation omitted)).
We are thus unconvinced by Defendants’ claim that
the physical presence requirement is necessary for
Ohio to pursue its product safety goals.
WBWAO also argues that Ohio’s physical presence
requirement enables the state to impose a populationbased quota system that restricts the number of
alcohol retailers in each Ohio municipality, which
promotes temperance. It claims that “[a]llowing outof-state retailers to ship unlimited quantities of
alcohol directly to Ohio consumers” would
dramatically increase the supply of alcohol in the Ohio
market, thwarting the quota system. MSJ, R.116,
PageID #6005. We are not persuaded by this
argument for two reasons. First, Ohio currently allows
in-state wine retailers and in- and out-of-state
wineries to deliver across the state, which already
unravels its location-based quota system with respect
to wine. Second, Ohio does not need to allow
“unlimited quantities” of wine into its market in order
to avoid discriminating against out-of-state
commerce. Just as Ohio Rev. Code § 4303.236 limits
the numbers of bottles of wine that wineries may ship
to each Ohio household per year, it could institute
provisions that prescribe quotas or limits on the
amount of wine that retailers may ship to
consumers—so long as it applies equally to both inand out-of-state interests. See Granholm, 544 U.S. at
472 (“[I]n all but the narrowest circumstances, state
laws violate the Commerce Clause if they mandate
‘differential treatment of in-state and out-of-state
29a
economic interests that benefits the former and
burdens the latter.’” (quoting Or. Waste Sys. Inc. v.
Dep’t of Env’t Quality of Or., 511 U.S. 93, 99 (1994))).
It could also ban direct-to-consumer shipping
altogether, which would also cure the discriminatory
injury inflicted by the Restriction.
In short, Defendants’ evidence does not
demonstrate that the physical presence requirement
substantially promotes public health and safety. And
to the extent that they draw any connection between
the presence requirement and public health, it is clear
that there are other non-discriminatory means of
achieving those same goals. We thus conclude that the
physical presence requirement is not “reasonably
necessary to protect [Ohio’s] asserted interest in
policing” the amount of wine in the state or the safety
of that wine. Tenn. Wine, 588 U.S. at 533.
ii. Price Control and Taxation Objectives
Defendants also claim that the Direct Ship
Restriction furthers Ohio’s health and safety objective
of imposing price controls and taxes on wine, which
promotes temperance by making wine more expensive
to buy. At each level of its three-tier system, Ohio
imposes price controls and excise taxes on alcohol,
including wine, to increase retail prices and “prevent
aggressive sales practices that improperly stimulate
purchase and consumption, thereby endangering the
state’s efforts to . . . discourage intemperate,
consumption of alcoholic beverages.” Ohio Admin.
Code 4301:1-1-03(C) (outlining Ohio’s minimum price
thresholds for wine).
Some states, including Illinois, where Plaintiff
House of Glunz is located, impose no price controls on
wine and allow for more discount purchase and sale of
30a
wine than does Ohio. By way of demonstrating the
downstream effects of these price control disparities,
Defendants point to several instances where House of
Glunz has sold wine more cheaply than some
comparable Ohio retailers. Defendants insist that
direct shipping by retailers from states with weaker
price controls would flood the local market with cheap
wine, undermining Ohio’s temperance objectives.
They claim that direct shipping by retailers risks
applying downward pressure on wine prices whereas
direct shipping by wineries (currently allowed by
Ohio) does not because there are between 400,000 and
640,000 wine retailers in America, but only 5,000
wineries.
We again find these rationales less than
compelling. First, it does not follow purely from the
number of out-of-state retailers that Ohio’s market
will actually be flooded with out-of-state wine absent
the Direct Ship Restriction. Indeed, Plaintiffs’
evidence shows that, in states that allow direct
shipping by out-of-state wine sellers (retailers and
wineries), the total number of out-of-state permit
holders ranges from under 50 to, at most, 2,000. But
Ohio can control the number of permits it issues to
out-of-state retailers. And, as described above, Ohio
could impose non-discriminatory limits on the amount
of wine retailers may ship to avoid flooding the market
with cheap wine.
As to Ohio’s purported temperance objectives,
Plaintiffs’ evidence demonstrates that states that
allow shipping by out-of-state retailers do not
necessarily have higher rates of wine consumption
than states that prohibit it—in some states where
direct shipping is permitted, wine consumption is
31a
higher than in Ohio; in others it is lower. See NIH
Consumption Data, R. 52-20, PageID# 3863-66. And
the record does not show an obvious causation or
correlation between state laws that allow direct-toconsumer wine shipping and increased wine
consumption. Perhaps some states allow direct
shipping because their residents already have a
robust culture of wine drinking. And even Defendants’
experts offer no data showing that direct shipping
from out-of-state retailers actually reduces the retail
price of wine; they merely speculate, without
supporting evidence, that direct shipping from states
with weaker price controls could “potentially result[]
in lower prices for products shipped from out of state.”
Kerr Report, R.53-4, PageID #4317 (emphasis added).
These are the sort of speculative and unsupported
assertions that Tennessee Wine counsels us to reject.
Moreover, Defendants’ narrative about the price
control mechanisms Ohio imposes on in-state wine
and its ability to impose similar price controls on outof-state wine is contradicted by Defendants’ own
evidence. Defendants insist that the collection of taxes
via the three-tier system is essential for keeping the
price of wine high and for collecting revenue that the
state uses to offset the negative social costs of
drinking, but even Defendants’ own expert admits
that “[t]he Ohio wine tax rate is low.” Id. at PageID
#4318. Indeed, he is only able to point to three states
that have lower tax rates. This leads us to question
Ohio’s contention that its excise taxes play a vital role
in its wine price controls and revenue generation. And
insofar as Ohio does view taxation of wine as an
essential health and safety mechanism, it may impose
taxes on out-of-state retailers. The Ohio laws that
currently allow out-of-state wineries to ship wine to
32a
Ohio consumers and retailers “all include provisions
to ensure the payment of Ohio taxes.” Kerr Report,
R.116-1, PageID #6074; see also Ohio Rev. Code §§
4303.071(A)(3), 4303.232(C)(3)(a), 4303.233(D)(3)(a).
We thus conclude that Defendants have presented
insufficient evidence showing that the Direct Ship
Restriction is necessary for Ohio to achieve its
purported objectives of promoting temperance by
controlling the price of wine and collecting taxes from
its sale.
iii. Underage Drinking
Lastly, Defendants argue that the Direct Ship
Restriction curbs underage drinking because minors
are able to more easily acquire wine from online
sources than in-person retail establishments. This is
the least convincing of all of Defendants’ health and
safety objectives. Ohio already allows online ordering
and direct shipping of all alcohol products from instate retailers, as well as the out-of-state entities we
have been discussing throughout this opinion. If Ohio
“thinks there is such a risk of underage sales in the
state, why expand that risk by allowing online sales”
in the first place? Lebamoff, 956 F.3d at 878
(McKeague, J., concurring, joined by Donald, J.). And
again, the Ohio laws that currently allow direct-toconsumer shipping “include provisions for . . . avoiding
underage sales.” Kerr Report, R.116-1, PageID #607475. For one thing, entities that sell and ship wine to
consumers must “make a bona fide effort to ensure
that the personal consumer is at least twenty-one
years of age.” Ohio Rev. Code § 4303.233(D)(1). And
upon delivery, they must “verify that the personal
consumer is at least twenty-one years of age by
checking the personal consumer’s driver’s or
33a
commercial driver’s license or identification card.” Id.
§ 4303.233(D)(2). If there is a reason that Ohio can
implement these controls for laws allowing direct
shipping from wineries and in-state retailers, but not
for out-of-state retailers, it has not explained what
that reason is.
***
Because the public health and safety rationales
offered by Ohio are questionable and unsupported by
convincing evidence, we cannot conclude that the
“predominant effect” of the Direct Ship Restriction is
the “protection of public health or safety,” rather than
“protectionism.” Tenn. Wine, 588 U.S. at 539-40. The
majority of Defendants’ health and safety
justifications are speculative, and the weight of their
limited nonspeculative evidence is significantly
undermined by the fact that Ohio already allows
direct-to-consumer and direct-to-retailer wine
shipping by out-of-state wineries. That Ohio allows
these wine sellers to access their market
demonstrates that the state is still able to pursue its
health and safety aims without banning direct
shipping.
It is thus clear that the predominant effect of this
law is not to ensure the public health and safety, but
rather to “deprive citizens of their right to have access
to the markets of other States on equal terms,” and
instead direct them to purchase wine from Ohio
retailers. Granholm, 544 U.S. at 473. Under Tennessee
Wine, this sort of protectionism clearly violates the
Commerce Clause. We thus hold the Direct Ship
Restriction unconstitutional.
34a
3. Transportation Restriction
We now turn to the Transportation Restriction
contained in Ohio Revised Code § 4301.20(L). As with
the Direct Ship Restriction, the parties agree that the
Transportation Restriction discriminates between inand out-of-state interests because it prohibits
consumers from transporting more than six bottles of
wine acquired outside of Ohio into the state during
any thirty-day period. Ohio Rev. Code § 4301.20(L).
Conversely, consumers may transport up to 288
bottles of wine they purchased from an Ohio entity.
Ohio Rev. Code § 4303.236. We thus proceed to apply
the Tennessee Wine test to the Restriction.
Defendants have advanced virtually no arguments
or evidence demonstrating that the Transportation
Restriction itself protects the public health and
safety—their entire argument depends on us deciding
that the Restriction is constitutional because it is
“essential” to Ohio’s constitutional three-tier system.
But because the Transportation Restriction is clearly
not essential to Ohio’s three-tier system, which does
not exist for wine, we consider the extent to which the
Restriction, on its own terms, advances Ohio’s
purported health and safety objectives of (1) ensuring
that wine retailers are physically present in Ohio and
available for inspection by Ohio liquor enforcement
agents and (2) controlling the amount of wine in the
state and the price of wine to promote temperance.
The connection between these stated health and
safety objectives and the Transportation Restriction is
extremely tenuous. Ohio claims that it wants to
ensure that it can inspect all wine being consumed,
but with the Transportation Restriction in place,
Ohioans can still personally bring up to 72 bottles of
35a
uninspected-by-Ohio out-of-state wine into the state
every year. Ohio Rev. Code § 4301.20(L). If there is
some public safety rationale indicating why it is safe
to allow individuals to bring only six bottles of wine
into the state every thirty days—but not seven, or
eight, or nine, or more—the State has not shown what
that is. And more importantly, Ohio allows out-ofstate wineries to directly ship up to 288 bottles of wine
to each household every year and to ship an unlimited
quantity to Ohio retailers. Id. §§ 4303.071(A)(3);
4303.236(A). The effect of these statutes is that
Ohioans can legally order 288 bottles of wine from a
California winery but cannot personally bring home
seven bottles from the same winery after roadtripping out west. It would be nonsensical to say that
the Transportation Restriction itself actually helps
Ohio ensure that it can inspect all of the wine sold in
the state when Ohio has other laws that allow far
greater quantities of uninspected-by-Ohio out-of-state
wine into its market.
The Transportation Restriction also bears little
relationship to Ohio’s purported price control
objectives inasmuch as it regulates the importation of
wine into Ohio for personal use, not for resale.
Defendants have presented no concrete evidence
showing that, without a personal transport limit, Ohio
would be flooded with so much out-of-state wine that
the price of wine for sale in the state would fall so
precipitously as to undermine the state’s price control
and attendant temperance objectives. We thus cannot
conclude that the Restriction is “reasonably necessary
to protect” any of the health and safety objectives
asserted by Ohio. Tenn. Wine, 588 U.S. at 533.
36a
Because the record is virtually “devoid of any
concrete evidence showing that the [Restriction]
actually promotes public health or safety,” we
conclude that the predominant effect of the law is not
the protection of public health. Id. at 540 (internal
quotation omitted). Rather, the law appears to have
the primary effect of deterring Ohioans from buying
wine from other states, thus “tilt[ing] the market in
favor of in-state retailers.” Brooks v. Vassar, 462 F.3d
341, 362 (4th Cir. 2006) (Goodwin, J. concurring and
dissenting). We thus hold the Transportation
Restriction unconstitutional.
***
Although we remand this case to the district court
with instructions to engage in further consideration of
the appropriate remedies for the constitutional
injuries inflicted by both the Transportation
Restriction and Direct Ship Restriction, we also offer
some guidance with respect to the appropriate remedy
for the Transportation Restriction. The district court
must fashion a remedy that is as “faithful to
legislative intent” of the Ohio legislature as possible.
Ayotte, 546 U.S. at 331. Plaintiffs ask that we enjoin
the small portion of § 4301.20(L) that caps the number
of bottles of wine they may bring into the state at six.
The effect of enjoining the six bottle limit would be to
allow Ohioans to transport up to 288 bottles of wine
into and in the state regardless of whether it comes
from an in- or out-of-state source. See Ohio Rev. Code
§ 4303.236(A). This approach appears to hew more
closely to legislative intent than does the alternative
approach of “leveling down” the Restriction and
limiting the number of any type of wine that
consumers may personally transport within the state
37a
to six bottles. Ohio Revised Code § 1.50 states that “[i]f
any provision of a section of the Revised Code . . . is
held invalid, the invalidity does not affect other
provisions or applications of the section or related
sections which can be given effect without the invalid
provision or application, and to this end the provisions
are severable.” Without prescribing this approach for
the district court, we suggest that this section of the
Ohio Code counsels in favor of an injunction against
only the small offending provision of § 4301.20(L),
without toying with the separate provision of §
4303.236. The remedy for the Direct Ship Restriction,
however, is more complicated because it is comprised
of several different statutes that work together to form
the Restriction, and we do not have enough
information before us to provide the district court with
detailed guidance as to the remedy. However, we do
note that the district court must choose the remedy
that adheres most closely to the intent of the Ohio
legislature without violating the Constitution, and it
should consider the impact of the severability
provision in § 1.50 on the appropriate remedy.
CONCLUSION
For the reasons set forth above, we REVERSE the
district court’s grant of summary judgment to
Defendants and REMAND this case to the district
court with instructions to (1) enter summary
judgment for Plaintiffs, (2) declare both Restrictions
unconstitutional, and (3) determine the appropriate
remedies for the constitutional injuries inflicted by the
Restrictions.
38a
APPENDIX B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEREK BLOCK, et al.,
Plaintiffs,
v.
JAMES V. CANEPA, et al.,
Defendants.
Case No. 2:20-cv-3686
Chief Judge Sarah D. Morrison
Magistrate Judge Chelsey M. Vascura
OPINION AND ORDER
Plaintiffs’ constitutional challenge to Ohio’s wine
importation laws is before the Court following remand
from the Sixth Circuit Court of Appeals. Plaintiff
Kenneth M. Miller is an Ohio resident and wine
collector. His co-plaintiff, The House of Glunz, Inc., is
an Illinois wine retailer with no permit or license from
the Ohio Division of Liquor Control. 1 Defendant Dave
Yost serves as Ohio’s Attorney General. The
Wholesale Beer & Wine Association of Ohio
(“WBWAO”) has intervened as a defendant. The
parties’ cross-Motions for Summary Judgment (ECF
Nos. 114, 116, and 119) and the WBWAO’s motion to
strike certain testimony and exhibits offered in
1 Plaintiff Derek Block voluntarily dismissed his claims. (ECF
No. 30.)
39a
support of Plaintiffs’ Motion for Summary Judgment
(ECF No. 120) are ripe for decision.
I. FACTUAL BACKGROUND
A. Ohio law establishes a three-tier system
for the sale of wine.
Alcohol “is the only consumer product identified in
the Constitution. Only its regulation by States is given
explicit warrant.” Wine Country Gift Baskets.com v.
Steen, 612 F.3d 809, 813 (5th Cir. 2010). The history
of alcohol regulation in America has been told many
times. See Tenn. Wine & Spirits Retailers Ass’n v.
Thomas, 588 U.S. 504, 139 S. Ct. 2449, 2462–70
(2019); Granholm v. Heald, 544 U.S. 460, 476–89
(2005). Rather than recite the full history here, it is
enough to say that Prohibition began with the
Eighteenth Amendment and ended with the Twentyfirst. See U.S. CONST. amend. XVIII, repealed by U.S.
CONST. amend. XXI. While § 1 of the Twenty-first
Amendment repealed the Eighteenth, § 2 prohibits:
The transportation or importation into any State. .
. for delivery or use therein of intoxicating liquors,
in violation of the laws thereof[.]
U.S. Const. amend. XXI, § 2. Thus, § 2 “grants the
States the power to regulate commerce with respect to
alcohol.” Lebamoff Enters. Inc. v. Whitmer, 956 F.3d
863, 869 (6th Cir. 2020), reh’g denied, Case No. 182199, Docket No. 56 (May 26, 2020), cert. denied, 141
S. Ct. 1049 (2021).
Ohio has taken full advantage of that power.
Chapters 4301 and 4303 of the Ohio Revised Code,
along with their implementing regulations, establish
a
comprehensive
scheme
governing
the
transportation, importation, distribution, and sale of
40a
alcoholic beverages, including wine. Those laws
establish a three-tier system for distributing wine in
Ohio. Entities operating in each tier (first, suppliers;
second, wholesalers; and third, retailers) must obtain
a permit from the Ohio Division of Liquor Control. See,
e.g., Ohio Rev. Code §§ 4303.03, 4303.07, 4303.10,
4303.12. Generally, permitted suppliers must sell to
permitted wholesalers (who may purchase only from
permitted suppliers), see Ohio Rev. Code §§ 4303.07,
4303.10, 4301.58(C), and permitted wholesalers must
sell to permitted retailers (who may purchase only
from permitted wholesalers), see Ohio Rev. Code. §§
4303.03(B)(1), 4303.35; Ohio Admin. Code 4301:1-146(B), (F). With limited exception, wine must pass
through each tier before reaching a consumer. 2
Wholesalers and retailers are required to maintain a
physical presence within the state of Ohio, and all
wine sold by those entities is required to “come to rest”
at that physical location. (See ECF No. 114-1, ¶ 62.a.);
see also Ohio Rev. Code §§ 4301.10(A)(1),
4301.10(A)(6), 4303.292(A); Ohio Admin Code 4301:11-22(B).
To qualify for a permit, participants in the threetier system must comply with a host of regulations
and requirements. See Ohio Rev. Code § 4303.25. For
example, permit applicants must submit to an initial
inspection of their premises by the Ohio Division of
Liquor Control’s Investigative Services Unit. (ECF
2 The most notable exception is of recent vintage. Beginning in
2007, small wineries could apply for a permit to sell and deliver
wine directly to Ohio consumers. (ECF No. 114-1, PAGEID #
5479–80.) In 2021, similar permits were made available to large
wineries. (Id.) All such wineries are licensed by the federal
Alcohol and Tobacco Tax and Trade Bureau. (Id.)
41a
No. 116-3, ¶ 7. See also ECF No. 53-2, ¶ 14.) A permit
holder must then submit to annual renewal
inspections of their premises and books and records,
as well as inspections based on any complaints the
Division might receive. (ECF No. 116-3, ¶ 7. See also
ECF No. 53-2, ¶¶ 18, 20.) During an inspection,
Compliance Agents monitor for adherence to:
ownership rules, see, e.g., Ohio Rev. Code §
4301.24(B), Ohio Admin. Code 4301:1-1-24(B);
environmental cleanliness and product safety
standards, see, e.g., Ohio Admin. Code 4301:1-1-17;
minimum pricing requirements, see, e.g., Ohio Admin.
Code 4301:1-1-03; and form-of-payment restrictions,
see, e.g., Ohio Rev. Code § 4301.24(D). (ECF No. 53-2,
¶¶ 17–18.) If a violation is found, the permit holder
may be subject to enforcement action(s), including
Correction Notices and fines, up to suspension or
revocation of the permit. (ECF No. 53-1, ¶ 24.)
B. Plaintiffs want to buy and sell wine at
retail outside of Ohio’s three-tier system.
Plaintiffs challenge two components of Ohio’s
three-tier system. First, Ohio law prohibits wine
retailers who do not have a Division-issued permit
from shipping wine directly to Ohio consumers (the
“Direct Ship Restriction”). See Ohio Rev. Code §§
4301.58(C), 4301.60, 4303.25, 4303.27. Because Ohio
requires permitted retailers to maintain a physical
presence in the state, the Direct Ship Restriction has
the effect of severely limiting out-of-state retailers’
ability to sell their wares to Ohio consumers—even
those retailers that are licensed to sell wine by their
home state. (See ECF No. 52-4, ¶¶ 9–13, 19, 27, 57.)
And second, Ohio law prohibits individuals from
transporting more than 4.5 liters (six bottles) of wine
42a
from out-of-state in any 30-day period (the
“Transportation Limit”), further restricting out-ofstate retailers’ access to the Ohio market. See Ohio
Rev. Code §§ 4301.20(L), 4301.60.
Mr. Miller is “an active wine consumer who looks
for good wines at good prices wherever [he] can find
them.” (ECF No. 52-2, ¶ 2.) He would like to purchase
wine from out-of-state retailers and have it shipped
directly to his home in Ohio. (ECF No. 52-2, ¶ 5.) He
would also like to purchase wine while out-of-state
and personally transport it back home. (ECF No. 345, ¶ 3.) Chicago-based House of Glunz “is a family
business . . . engage[d] in retail wine sales, including
online sales, and has customers from all over the
country[.]” (ECF No. 52-3, ¶ 1–2.) House of Glunz is
licensed to sell wine by the City of Chicago and the
State of Illinois. (ECF No. 50, 61:7–19.) The company
would like to sell wine to Ohio consumers and ship it
directly to their homes. (ECF No. 52-3, ¶¶ 5–7.)
Plaintiffs contend that the Direct Ship Restriction and
the Transportation Limit, which prevent them from
engaging in their desired conduct, run afoul of the
United States Constitution.
II. PROCEDURAL BACKGROUND
Plaintiffs’ Complaint challenged the Direct Ship
Restriction and the Transportation Limit by bringing
claims against four state officials—Jim Canepa,
Superintendent of Liquor Control for the Ohio
Division of Liquor Control; Dave Yost, Ohio Attorney
General; Thomas J. Stickrath, Director of the Ohio
Department of Public Safety; and Deborah Pryce,
Chair of the Ohio Liquor Control Commission. (ECF
No. 1.)
43a
This Court dismissed Plaintiffs’ claims against
Superintendent Canepa, Director Stickrath, and
Chair Pryce after concluding that they were entitled
to Eleventh Amendment immunity, and that the Ex
Parte Young exception to such immunity did not
apply. (ECF No. 33.) The Court also found that
Plaintiffs lacked standing to challenge the
Transportation Limit in a pre-enforcement action
because they did not allege a credible threat of
prosecution. (ECF No. 36.)
After completing discovery, the parties filed crossmotions for summary judgment on the remaining
claim. The Court resolved those motions in a
September 12, 2022 Opinion & Order granting
summary judgment in favor of Defendants. (ECF No.
91.)
Plaintiffs appealed to the Sixth Circuit Court of
Appeals, which issued an Opinion on July 17, 2023.
(ECF No. 104.) The Sixth Circuit held that (i) Mr.
Miller adequately alleged a credible threat of
prosecution under the Transportation Limit and (ii)
this Court should have conducted additional analysis
of the evidentiary record before granting summary
judgment. (Id.) It remanded the case for further
proceedings, with the express mandate that this Court
consider the facts and evidence presented in this
case and determine whether the challenged
statutes (1) “can be justified as a public health or
safety measure or on some other legitimate
nonprotectionist ground,” and whether (2) their
“predominant effect” is “the protection of public
health or safety,” rather than “protectionism.”
(Id. (quoting Tenn. Wine & Spirits, 139 S. Ct. at 2474.)
44a
The parties have since had the opportunity to
exchange supplemental discovery and brief renewed
motions for summary judgment. (See ECF No. 111.)
III. MOTION TO STRIKE
The Court will first address the WBWAO’s motion
to strike Tom Wark’s expert report and deposition
testimony. (ECF No. 120.) Attorney General Yost joins
the Motion. (ECF No. 122, PAGEID # 6669.) Plaintiffs
responded in opposition (ECF No. 124) and the
WBWAO replied (ECF No. 125).
The admissibility of expert testimony is governed
by Federal Rule of Evidence 702:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise
if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.
Fed. R. Evid. 702. The Rule incorporates the Supreme
Court’s instruction in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993) and Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), requiring
the trial court to serve as a “gatekeeper,” tasked with
45a
“ensuring that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at
hand.” Daubert, 509 U.S. at 597. Courts are afforded
“considerable leeway” both in determining whether to
admit expert opinion testimony and how to test its
reliability and relevance to the case at bar. Kumho
Tire, 526 U.S. at 152. The proponent of the expert
testimony bears the burden of proving its
admissibility. See Fed. R. Evid. 104(a); Sigler v. Am.
Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 2008).
Nonetheless, the Federal Rules of Evidence provide a
“permissive backdrop,” favoring the admission of
expert opinion testimony. Daubert, 509 U.S. at 588–
89.
Plaintiffs use a 2021 report by Tom Wark,
Executive Director of the National Association of Wine
Retailers, to support their Motion for Summary
Judgment. (See ECF No. 119 (citing ECF No. 52-4).)
The WBWAO challenges Mr. Wark’s qualifications as
an expert and the reliability and relevance of his
opinions. (ECF No. 120.) As such, they seek to strike
Mr. Wark’s report and deposition transcript from the
record. (Id.) The WBWAO’s Motion is GRANTED in
part and DENIED in part.
A. Mr. Wark is qualified to testify as an
expert on the retail wine business.
The WBWAO first argues that Mr. Wark is not
qualified to testify as an expert in this matter. (Id.) As
of the date of his report, Mr. Wark had worked as a
public relations consultant in the alcohol industry for
more than thirty years. (ECF No. 52-4, PAGEID #
1276, 1287.) For thirteen of those, he was Executive
Director of the National Association of Wine Retailers
and publisher of a daily blog on the business of wine.
46a
(Id.) Although Mr. Wark’s curriculum vitae boasts
expertise in “Media Relations,” “Wine Industry
Marketing,” “Marketing Communications,” “Alcohol
Industry
Regulation,”
“Writing,”
“Association
Management,” “Wine Evaluation,” and “Wine
Industry Politics” (ECF No. 52-4, PAGEID # 1287),
Plaintiffs offer him as “an expert in the retail wine
business” (ECF No. 124, PAGEID # 6706). His
experience managing an association representing
wine retailers qualifies him as such. See Fed. R. Evid.
702 advisory committee’s notes to 2000 amendments
(“[T]he text of Rule 702 expressly contemplates that
an expert may be qualified on the basis of
experience.”).
B. Eleven of the fourteen proffered pieces of
testimony are admissible.
The WBWAO next seeks a ruling that the contents
of Mr. Wark’s 2021 report are inadmissible. (ECF No.
120.) In his report, Mr. Wark offers “a basic
description of the market conditions in which wine
consumers and wine retailers interact” as of July
2021. (ECF No. 52-4, PAGEID # 1277.) He also draws
ten “conclusions” on the basis of the recited
background facts. (Id., PAGEID # 1285.)
Plaintiffs oppose Defendants’ motion in part
because it is overbroad; only fourteen paragraphs of
Mr. Wark’s report are cited in their Motion for
Summary Judgment. (ECF No. 124.) The Court
construes Plaintiffs’ argument as a disclaimer of all
other paragraphs in Mr. Wark’s report and will thus
confine its analysis to the fourteen cited.
Paragraphs 10 and 11 discuss the availability of
wines for sale in the United States at the national and
local levels. Mr. Wark states that “the total number of
47a
wines approved and available for resale somewhere in
the U.S. could reach up to 1 million.” (ECF No. 52-4, ¶
10.) He further describes the effect of state laws like
the Direct Ship Restriction on the number of wines
available to those states’ consumers. (Id., ¶ 11.) These
general market dynamics are appropriate subjects for
a wine retailing expert’s testimony, and they are
relevant because they illustrate the economic impact
of state laws like the Direct Ship Restriction. The
WBWAO’s motion is DENIED as to paragraphs 10
and 11 of Mr. Wark’s report.
Paragraphs 21, 23, and 24 describe the
characteristics and experience of a wine consumer.
Mr. Wark describes several legitimate—and perhaps
common—circumstances in which consumers may
want to buy and ship wines across state lines. (Id., ¶
21.) He again stresses the limited number of wines
available in common retailer-categories, like grocery
stores. (Id., ¶¶ 23, 24.) This testimony is also reliably
given and a relevant illustration of how state laws can
impact interstate commerce in wine. The WBWAO’s
motion is thus DENIED as to paragraphs 21, 23, and
24.
Paragraphs 29 and 30 describe the experience of a
wine retailer. Mr. Wark discusses considerations for
brick-and-mortar wine retailers seeking to maximize
profit, and the effect of those considerations on the
local availability of “rare and collectible wines” in any
given market. (Id., ¶ 29.) He opines that the Direct
Ship Restriction “bar[s] access to the vast majority of
rare, hard to find and collectible wines sold by the[]
relatively small number of specialty wine retailers.”
(Id., ¶ 30.) The Court finds paragraphs 29 and 30 to
be reliable testimony on a topic relevant to the issue
48a
at hand. The WBWAO’s motion is DENIED as to
paragraphs 29 and 30.
Paragraph 38 provides:
According to the Wine Institute, 44 states
currently allow shipments from out-of-state
wineries to consumers. The Wine Institute is the
leading authority on the wine production industry
in the U.S.
The first sentence is inadmissible hearsay. See Fed. R.
Evid. 801, 802. Because the first sentence is the
report’s only reference to the Wine Institute, the
second sentence is irrelevant. The WBWAO’s motion
is GRANTED as to paragraph 38.
Paragraphs 41, 42, and 43 summarize the process
by which consumers “most commonly” receive wine by
direct shipment from an out-of-state retailer in the
states that permit such activity. (ECF No. 52-4, ¶ 41;
see also id., ¶42 (detailing the steps as they “[m]ost
often” occur).) This testimony is also reliable and
relevant. The WBWAO’s motion is DENIED as to
paragraphs 41, 42, and 43.
Paragraph 44 summarizes the findings of a 2003
report by the Federal Trade Commission and a 2012
study by the Maryland Comptroller. Those reports,
which are included in the record, speak for
themselves. Mr. Wark’s summary is inadmissible as
hearsay and lesser evidence. See Fed. R. Evid. 802,
1002. The WBWAO’s motion is GRANTED as to
paragraph 44.
Paragraph 45 states:
In fact, there has been no study nor any report ever
produced by any law enforcement or any alcohol
49a
regulatory body that shows the direct shipment of
wine from out-of-state retailers has led to a
problem with minors obtaining alcohol in any
state. While a limited number of academic and law
enforcement studies have shown via coordinated
“stings” that minors could be able to obtain alcohol
via direct shipment, no study has shown that
minors actually use the Internet to obtain alcohol.
The 2015 National Survey on Drug Use and Health
carried out by the Substance Abuse and Mental
Health Services Administration looked at how
minors obtain alcohol. No minor responding to the
national survey cited the Internet as their source
of alcohol. In fact, no state has produced any report
or evidence that direct shipment of wine from outof-state wineries or retailers in any way negatively
impacts the health and safety of its residents.
The third and fourth sentences of paragraph 45 are
inadmissible hearsay for the reasons already
discussed. The first, second, and final sentences make
sweeping statements that “no” study or report has
ever shown that direct shipment of wine to a state’s
consumers results in certain adverse outcomes. In
deposition, Mr. Wark acknowledged that he did not
review anything outside the few studies specifically
mentioned in his report. (See ECF No. 49, PAGEID
674–75.) This is not the type of searching review
necessary to support the broad claims in his opinion.
The Court cannot conclude that those sentences are
based on sufficient facts or data and so, exercising its
gatekeeping function, will exclude them from the
record. The WBWAO’s motion is GRANTED as to
paragraph 45.
Finally, in paragraph 54, Mr. Wark states:
50a
All wine sold at wine retail stores is in sealed
containers and has been approved for sale to the
public by the TTB and the state alcohol regulatory
agency in which the retailer is located. There are
no reports of any contaminated or harmful wine
sold and shipped from these retailers to
consumers.
Neither Mr. Wark nor his proponents have shown the
Court that these statements are based on sufficient
facts or data to be admissible. The WBWAO’s motion
is GRANTED as to paragraph 54.
C. The deposition testimony is properly
included in the record.
In view of the above rulings, the Court sees no
reason to strike Mr. Wark’s deposition testimony from
the record. The WBWAO’s motion is DENIED as to
the deposition transcript.
IV. MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when “there is
no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The movant has the burden of
establishing there are no genuine issues of material
fact, which may be achieved by demonstrating the
nonmoving party lacks evidence to support an
essential element of its claim. Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel,
Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th
Cir. 1993). The burden then shifts to the nonmoving
party to “set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P.
56). When evaluating a motion for summary
51a
judgment, the evidence must be viewed in the light
most favorable to the nonmoving party. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970).
A genuine issue exists if the nonmoving party can
present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to
the material facts.” Moore v. Philip Morris Cos., 8 F.3d
335, 339–40 (6th Cir. 1993). In other words, “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S.
at 248. See also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (concluding that
summary judgment is appropriate when the evidence
could not lead the trier of fact to find for the
nonmoving party).
Here, Defendants have submitted sufficient
admissible evidence that there is no genuine issue of
material fact and they are entitled to judgment as a
matter of law. Plaintiffs have failed to present
significant probative evidence establishing otherwise.
A. This case must
Tennessee Wine.
be
analyzed
under
Plaintiffs assert that the Direct Ship Restriction
and the Transportation Limit unconstitutionally
discriminate against out-of-state businesses. 3 As the
3 Attorney
General Yost concedes that Ohio’s Direct Ship
Restriction discriminates against out-of-state retailers. (See ECF
No. 116, PAGEID # 5973.) Although the statutes comprising that
restriction do not distinguish between instate and out-of-state
businesses on their face (see Ohio Rev. Code §§ 4301.01, 4303.12,
4303.22, 4303.27), the Ohio Division of Liquor Control will not
issue a permit to a wine retailer that does not maintain a physical
presence in the state. The WBWAO argues that the implicit
52a
Sixth Circuit recently explained in a similar case out
of Michigan, such a challenge “turns on the accordionlike interplay” between the Commerce Clause and the
Twenty-first Amendment:
The [Commerce] Clause grants Congress power to
preempt or permit state laws that interfere with
interstate commerce, and it impliedly “prohibits
state laws,” as determined by the federal courts,
“that unduly restrict interstate commerce.” Tenn.
Wine & Spirits, 139 S. Ct. at 2459. Under the
implied prohibition, if a state law discriminates
against “out-of-state goods or nonresident
economic actors,” it may survive only if tailored to
advance a legitimate state purpose. Id. at 2461.
. . . While the Commerce Clause grants Congress
power to eliminate state laws that discriminate
against interstate commerce, the Twenty-first
Amendment grants the States the power to
regulate commerce with respect to alcohol. Section
2 of the Amendment bars “[t]he transportation or
nature of the discrimination deprives Plaintiffs of standing to
challenge it. (ECF No. 114, PAGEID # 5414.) The Court
disagrees. The state’s position on out-of-state retailers’ eligibility
for a permit caused Plaintiffs’ alleged injury and is redressable.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.
Ct. 2130, 119 L. Ed. 2d 351 (1992) (discussing the three elements
of Article III standing: injury-in-fact, causation, and
redressability); cf. Granholm v. Heald, 544 U.S. 460, 477, 125 S.
Ct. 1885, 161 L. Ed. 2d 796 (2005) (explaining that the Commerce
Clause prevents states from imposing impermissible burdens on
interstate commerce, even through application of “facially
neutral laws”); Day v. Henry, — F.4th —, 129 F.4th 1197, 2025
U.S. App. LEXIS 4985 (9th Cir. 2025) (finding that plaintiffs in
an analogous action against Arizona liquor control laws had
standing to sue).
53a
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.” U.S. Const. amend. XXI, § 2. The
section gives the States broad latitude to regulate
the distribution of alcohol within their borders. See
North Dakota v. United States, 495 U.S. 423, 432–
33 (1990) (plurality opinion); see also id. at 447–48
(Scalia, J., concurring in the judgment). Indeed,
had Congress (as opposed to the people through the
ratification process) enacted this exact law, it is
doubtful there would be any role for the federal
courts to play. When faced with a dormant
Commerce Clause challenge to an alcohol
regulation, as a result, we apply a “different” test.
Tenn. Wine & Spirits, 139 S. Ct. at 2474. Rather
than skeptical review, we ask whether the law “can
be justified as a public health or safety measure or
on some other legitimate nonprotectionist ground.”
Id. But if the “predominant effect of the law is
protectionism,” rather than the promotion of
legitimate state interests, the Twenty-first
Amendment does not “shield[ ]” it. Id.
Lebamoff Enters. Inc. v. Whitmer, 956 F.3d 863, 869
(6th Cir. 2020), reh’g denied, Case No. 18-2199, Docket
No. 56 (May 26, 2020), cert. denied, 141 S. Ct. 1049
(2021).
In its September 2022 Opinion, this Court
endeavored to apply the Tennessee Wine test, as
illuminated by Lebamoff, to Plaintiffs’ challenge to the
Direct Ship Restriction. (See ECF No. 91.) The Court
of Appeals found fault in this Court’s approach,
however, and remanded for further consideration of
Plaintiffs’ challenge to both the Transportation Limit
54a
and the Direct Ship Restriction. In particular, the
Court was directed to evaluate
the facts and evidence presented in this case [to]
determine whether the challenged statutes (1) “can
be justified as a public health or safety measure or
on some other legitimate nonprotectionist ground,”
and whether (2) their “predominant effect” is “the
protection of public health or safety,” rather than
“protectionism.”
(ECF No. 104 (quoting Tenn. Wine, 139 S. Ct. at
2474).) The Court will turn to that evidence now. 4
B. The challenged laws can be justified on
legitimate nonprotectionist grounds.
The first question before the Court is whether the
challenged laws can be justified on legitimate
nonprotectionist grounds. The most salient of the
legitimate grounds is protecting public health and
safety. Tenn. Wine, 139 S. Ct. at 2474 (recognizing
that Ҥ 2 was adopted to give each State the authority
to address alcohol-related public health and safety
issues in accordance with the preferences of its
citizens”).
4 Plaintiffs
urge the Court to consider whether there are
nondiscriminatory alternatives to the scheme established by the
Ohio General Assembly. (See ECF No. 119, PAGEID # 6564.) But
as the First Circuit Court of Appeals explained in Anvar v.
Dwyer, that argument “conflates the proper Twenty-first
Amendment inquiry with a traditional analysis under the
dormant Commerce Clause.” 82 F.4th 1, 11 (1st Cir. 2023); see
also id. at 8 (explaining that nondiscriminatory alternatives are
only considered if, after consideration of the Tennessee Wine test,
“the law’s predominant effect is protectionist in nature”).
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In arguing whether the Direct Ship Restriction and
the Transportation Limit can be justified as health
and safety measures, the parties offer very different
framing. Plaintiffs urge the Court to focus on whether
direct shipping and personal transportation threaten
public health. (See ECF No. 119, PAGEID # 6556,
6566.) But Defendants zoom out. They argue that the
Direct Ship Restriction and the Transportation Limit
are trusses supporting a larger structure—namely,
the three-tier system—and cannot be excised for
review outside that context. (See, e.g., ECF No. 116,
PAGEID # 5973–74.) The difference is significant, as
the state must present “concrete evidence” showing
the challenged laws’ “purpose and effect.” Tenn. Wine,
139 S. Ct. at 2473–74. In Plaintiffs’ frame, the
relevant evidence is narrowly drawn to whether
bottles shipped or carried across state lines are more
dangerous than those that were not. While in
Defendants’, the relevant evidence goes to the
system’s effect on public health and safety.
Allowing out-of-state retailers to deliver wine
directly to Ohio’s consumers would effectively
eliminate the role of Ohio’s wholesalers and “create a
sizeable hole in the three-tier system.” Lebamoff, 956
F.3d at 872. Accord B-21 Wines, Inc. v. Bauer, 36 F.4th
214, 228 (4th Cir. 2022) (observing that striking down
North Carolina’s corollary to the Direct Ship
Restrictions “would open the North Carolina wine
market to less regulated wine, undermining the
State’s three-tier system and the established public
interest of safe alcohol consumption that it
promotes”), reh’g denied, No. 21-1906, Docket No. 58
(June 28, 2022), cert. denied, 143 S. Ct. 567 (2023);
Sarasota Wine Mkt., LLC v. Schmitt, 987 F.3d 1171,
1184 (8th Cir. 2021) (concluding that a physical
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presence requirement for retailers was an “essential
feature of [Missouri’s] three-tiered system”); Wine
Country Gift Baskets, 612 F.3d at 821 (same).. The
same would be true if Ohio consumers could import
wine themselves by buying from out-of-state retailers
and bringing the product in bulk across state lines.
The Court is thus persuaded that Defendants’ framing
is the correct one and will evaluate evidence of the
purpose and effect of the challenged laws within the
context of Ohio’s three-tier system.
Ohio’s three-tier system sets out a prescribed
supply chain, with a limited number of legislatively
considered exceptions. The system is designed to:
(A) Promote
temperance
by
preventing
consumption by underage persons and by
discouraging abusive consumption;
(B) Promote orderly markets by requiring
transparent,
accountable,
and
stable
distribution of beer and intoxicating liquor and
preventing unfair competition; [and]
(C) Facilitate the collection of taxes related to the
sale and consumption of beer and intoxicating
liquor.
Ohio Rev. Code § 4303.011. Defendants’ evidence
shows how the state performs against these goals and
what they serve to accomplish.
Oversight. Defendants first argue that Ohio’s
three-tier system allows the state regulatory and
enforcement agencies to keep close watch over the
movement and sale of wine throughout the state (see
ECF No. 114-1, ¶ 4), which serves the legislative
purposes of preventing underage driving and
promoting orderly markets by ensuring that the
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distribution of wine is done in a transparent and
accountable manner. Attorney General Yost offers a
recent example illustrating the vital importance of
these oversight mechanisms.
In January 2021, the Ohio Division of Liquor
Control and the Ohio Investigative Unit (“OIU”)
launched a joint investigation after a consumer
reported becoming ill after drinking “Saint Sadler”
wine. (ECF No. 116-3, ¶ 15.) No such wine product was
registered with the Division, and no such wine
producer was permitted. (Id.) The investigation
revealed that an individual, Paul Sadler, had
purchased several “make your own wine” kits from a
permit holder called Grape and Granary, Inc. (Id., ¶
20.) Though these kits are widely available to homevintners, their wine is not licensed for sale. (Id., ¶ 19.)
OIU executed a search warrant on a warehouse
connected to Sadler’s operation. (ECF No. 116-5, ¶ 12;
see also ECF No. 116-6, PAGEID # 6425.) When
agents arrived, they found four people actively
engaged in the bottling process[.]” (ECF No. 116-6,
PAGEID # 6426.) The warehouse was “filthy, with
many areas looking to be under construction[.]” (Id.)
Wine jugs were “uncovered and open to the air with no
top or means to prevent contamination.” (Id.) There
was nothing preventing fill hoses from touching the
ground and nothing available to clean the fill hoses
after use. (Id.) The restrooms “contained no hand soap
or sanitary towels” for bottlers “to properly wash
hands after restroom use.” (Id.) OIU confiscated more
than 600 intact bottles of Saint Sadler wine and
“several gallons” more in various stages of
fermentation. (ECF No. 116-5 ¶ 13.) The Division then
conducted on-site inspections at licensed retailers
suspected of stocking the stuff. (ECF No. 116-3, ¶ 22.)
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It seized another 437 bottles from eighteen outlets.
(Id.) This case highlights the importance of physical
access to information and premises in policing alcohol
sales. It also supports Defendants’ position that the
three-tier system—including the Direct Ship
Restriction and Transportation Limit—can be
justified by public health and safety.
Price Controls. Defendants next argue that the
three-tier system allows the state to control alcohol
prices, including by efficient collection of an excise tax
at the wholesaler lever. Keeping the price of alcohol
high promotes temperance, and tax proceeds are used
to offset the societal costs of alcohol consumption. (See
ECF No. 114-1, ¶ 77.)
Defendants’ position is supported by expert
testimony on the economics of alcohol use and
testimony by individuals working inside Ohio’s liquor
control agencies. William Kerr, PhD, Senior Scientist
and Scientific Director at the Alcohol Research Group,
prepared and supplemented an expert report on the
purpose and effect of Ohio’s liquor control laws. (ECF
No. 116-1.) Dr. Kerr has authored or co-authored more
than 160 peer-reviewed articles on alcohol-related
topics, including trends in alcohol consumption and
the effectiveness of alcohol control policies. (Id., ¶
PAGEID # 6072.) Dr. Kerr’s report summarizes
scholarship on the correlation between availability,
prices, consumption, and bad outcomes within the
market for alcoholic beverages. (Id., generally.)
Generally, as availability increases, prices fall; as
prices fall, consumption increases; and as
consumption increases, so too do bad outcomes.
Against that backdrop, Dr. Kerr opines that:
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Allowing the direct shipment of alcoholic
beverages from retailers to Ohio consumers would
be expected to increase alcohol consumption, heavy
drinking and the consequences associated with
alcohol use and abuse through the expansion of
alcohol suppliers. Similar problems would be
expected to arise if Ohioans were permitted to
transport an unlimited quantity of alcoholic
beverages into the State for personal consumption.
This is particularly true given that the new
suppliers in neighboring states may be able to
supply the alcohol to Ohio consumers at lower
prices, which could increase price competition and
lower prices.
(Id., PAGEID # 6077.)
Division agents use on-site compliance checks to
ensure that licensed retailers comply with state laws,
including price controls. (ECF No. 116-4.) For
example, agents compare wholesaler invoices with a
retailer’s in-store prices to determine whether
mandatory mark-ups are being charged. (Id., ¶ 8.) If a
retailer is not charging a mandatory mark-up, a
Division agent can initiate corrective action, educate
the permit holder, and “ensure that the product
pricing is immediately changed” while on-site. (Id.)
In view of this evidence, the Direct Ship Restriction
and the Transportation Limit are justified on public
health and safety grounds.
C. The challenged laws’ predominant effect
is not protectionism.
The Court next considers whether the facts and
evidence presented in this case show that the
challenged laws’ predominant effect is protectionism.
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In support of their argument that the challenged
laws’ predominant effect is protectionism, Plaintiffs
first demonstrate that certain wines—perhaps of a
rare vintage or from emerging winemaking regions—
are unavailable for purchase from Ohio-licensed
retailers. (See, e.g., ECF No. 52-8, PAGEID # 3809–11;
ECF No. 52-11, PAGEID # 3825.) Many are also
unavailable for Ohio-licensed retailers to sell. (Id.)
Plaintiffs also show that certain products available for
purchase online—for example, a Hickory Farms
Mumm Napa Sparkling Wine Gift Box and a wine club
membership from K&L Wine Merchants—are
unavailable to Ohio consumers because they
necessarily require shipment of wine across state
lines. (See ECF Nos. 52-14, 52-16.) And while K&L
Wine Merchants’ wine club cannot access the Ohio
market, The Wine Merchant (a Cincinnati, Ohiobased wine retailer) has a wine club that can. (See
ECF No. 52-15.)
Next, Plaintiffs offer evidence that undermines the
health and safety goals the state claims to pursue. For
example, Plaintiffs undercut Dr. Kerr’s testimony by
showing that several Ohio retailers sell wine at
discount prices—sometimes, for less than $4 per
bottle. (See ECF Nos. 52-35, 52-36, 52-37.) They also
submit studies such as a 2016 report by the National
Institute on Alcohol Abuse and Alcoholism showing
alcohol consumption by state (ECF No. 52-20), a 2019
report by the National Highway Traffic Safety
Administration showing alcohol-impaired driving
rates (ECF No. 52-21), and a 2021 report by the
National Coalition Against Domestic Violence
showing domestic violence rates (ECF No. 52-23).
These studies do not show an obvious correlation
between a state’s decision to allow direct-to-consumer
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alcohol shipping and the outcomes they track (though
the studies are unaccompanied by expert testimony or
statistical analysis). 5
Finally, Plaintiffs offer correspondence between
their counsel and employees at the state liquor control
agencies in six states that allow direct-to-consumer
shipping. In that correspondence, the state employees
respond to counsel’s informal request for information
about “any regulatory or monitoring issues [that] have
arisen concerning improper shipments by permittees,
failure to remit taxes, or anything else.” (See, e.g., ECF
No. 52-30, PAGEID # 3952.) None of the six states
report major problems. But the responses are not
sworn, and there is little to no information about the
responding employee—including whether that
individual is authorized to respond or knowledgeable
on the topic. The correspondence is now more than
four years old.
Defendants argue that the challenged laws’
predominant effect is the promotion of health and
safety. They offer evidence on the operation and
effectiveness of the state’s liquor control enforcement
agencies. That evidence highlights the importance of
on-site inspections. For example, the Division
conducts thousands of on-site inspections each year
for purposes of renewing permits and investigating
complaints. (ECF No. 116-2, ¶¶ 7–9) Between
September 1, 2021, and January 31, 2024, the
Division issued 935 Correction Notices and 46 formal
5 Construing
the evidence in the light most favorable to the
Plaintiffs, the Court overlooks certain evidentiary deficiencies in
these studies and the manner in which their results are
presented to the Court.
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citations to permit holders. (Id., ¶¶ 10–11.) The OIU
conducted another 2,915 on-site compliance checks
between September 1, 2021, and February 02, 2024.
(ECF No. 116-5, ¶ 7.)
Beyond being unable to physically inspect store
shelves and monitor compliance with laws like
mandatory mark-ups and the prohibition against
selling alcohol to minors (see, e.g., ECF No. 116-5, ¶¶
4–6), Dr. Kerr opines that Ohio “does not have
effective enforcement tools to use against out-of-state
retailers who fail to abide by Ohio law.” (ECF No. 1161, ¶ 34.) He states that fines, suspensions, and
revocations would be administratively burdensome
and “likely ineffective”—largely because the out-ofstate retailers are outside of Ohio’s three tier system.
He explains that Ohio could not “cut off the flow of
alcohol to a non-compliant out-of-state retailer” or
“strand[]” a non-compliant out-of-state retailer “with
product it cannot sell once its license is revoked or
suspended[.]” (Id., ¶¶ 35–36.)
In view of all the evidence in the record, the Court
is persuaded that it can decide as a matter of law
whether the challenged laws’ predominant effect is
protectionist. It is not. Defendants have produced
concrete evidence that the Direct Ship Restriction and
the Transportation Limit are essential components of
Ohio’s three-tier system, and operate with the
predominant purpose and effect of promoting public
health and safety. Plaintiffs have not produced
sufficient evidence upon which a reasonable jury could
find otherwise.
V. CONCLUSION
For these reasons, the WBWAO’s Motion to Strike
(ECF No. 120) is GRANTED in part and DENIED
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in part. The WBWAO’s and Attorney General Yost’s
Motions for Summary Judgment (ECF Nos. 114, 116)
are GRANTED; Plaintiffs’ Motion for Summary
Judgment (ECF No. 119) is DENIED.
The Clerk is DIRECTED to TERMINATE this
case.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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APPENDIX C
No. 22-3852
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEREK BLOCK,
Plaintiff,
KENNETH M. MILLER; HOUSE OF GLUNZ, INC.,
Plaintiffs-Appellants,
v.
JAMES V. CANEPA, et al.,
Defendants,
DAVE YOST, ATTORNEY GENERAL OF OHIO;
ANDY WILSON, DIRECTOR, OHIO DEPARTMENT
OF PUBLIC SAFETY,
Defendants-Appellees,
WHOLESALE BEER & WINE ASSOCIATION OF
OHIO,
Intervenor Defendant-Appellee.
Before: MOORE, CLAY, and MATHIS, Circuit
Judges.
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the case. The petition then
was circulated to the full court. No judge has
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requested a vote on the suggestion for rehearing en
banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF
THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
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APPENDIX D
Ohio Rev. Code §4301.01(A)(2)
Except as used in sections 4301.01 to 4301.20,
4301.22 to 4301.52, 4301.56, 4301.70, 4301.72,
and 4303.01 to 4303.36 of the Revised Code,
“sale” and “sell” include exchange, barter, gift,
offer for sale, sale, distribution and delivery of
any kind, and the transfer of title or possession
of beer and intoxicating liquor either by
constructive or actual delivery by any means or
devices whatever, including the sale of beer or
intoxicating liquor by means of a controlled
access alcohol and beverage cabinet pursuant to
section 4301.21 of the Revised Code. “Sale” and
“sell” do not include the mere solicitation of
orders for beer or intoxicating liquor from the
holders of permits issued by the division of liquor
control authorizing the sale of the beer or
intoxicating liquor, but no solicitor shall solicit
any such orders until the solicitor has been
registered with the division pursuant to section
4303.25 of the Revised Code.
Ohio Rev. Code §4301.20
This chapter and Chapter 4303. of the Revised
Code do not prevent the following:
…
(L) Any resident of this state or any member of
the armed forces of the United States, who has
attained the age of twenty-one years, from
bringing into this state, for personal use and not
for resale, not more than one liter of spirituous
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liquor, four and one-half liters of wine, or two
hundred eighty-eight ounces of beer in any
thirty-day period, and the same is free of any tax
consent fee when the resident or member of the
armed
forces
physically
possesses
and
accompanies the spirituous liquor, wine, or beer
on returning from a foreign country, another
state, or an insular possession of the United
States.
Ohio Rev. Code §4301.58(C)
No person, personally or by the person’s clerk,
agent, or employee, who is not the holder of an A,
B, C, D, E, F, G, I, or S permit issued by the
division, in force at the time, and authorizing the
sale of beer, intoxicating liquor, or alcohol, or who
is not an agent or employee of the division or the
tax commissioner authorized to sell such beer,
intoxicating liquor, or alcohol, shall sell, keep, or
possess beer, intoxicating liquor, or alcohol for
sale to any persons other than those authorized
by Chapters 4301. and 4303. of the Revised Code
to purchase any beer or intoxicating liquor, or sell
any alcohol at retail.
Ohio Rev. Code §4301.60
No person, who is not the holder of an H permit,
shall transport beer, intoxicating liquor, or
alcohol in this state. This section does not apply
to the transportation and delivery of beer,
alcohol, or intoxicating liquor purchased or to be
purchased from the holder of a permit issued by
the division of liquor control, in force at the time,
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and authorizing the sale and delivery of the beer,
alcohol, or intoxicating liquor so transported, or
to the transportation and delivery of beer,
intoxicating liquor, or alcohol purchased from the
division or the tax commissioner, or purchased by
the holder of an A or B permit outside this state
and transported within this state by them in
their own trucks for the purpose of sale under
their permits.
Ohio Rev. Code §4303.03
(A) Subject to division (B) of this section, permit
A-2 may be issued to a manufacturer to
manufacture wine from grapes, fruits, or other
agricultural products; to import and purchase
wine in bond for blending purposes, the total
amount of wine so imported during the year
covered by the permit not to exceed forty per cent
of all the wine manufactured and imported; to
manufacture, purchase, and import brandy for
fortifying purposes; and to sell those products
either in glass or container for consumption on
the premises where manufactured, in sealed
containers for consumption off the premises
where manufactured, and to wholesale permit
holders under the rules adopted by the division
of liquor control.
(B)(1) The holder of an A-2 permit shall not sell
directly to a retailer. In order to make sales to a
retailer, the manufacturer shall obtain a B-2a
permit or make the sale directly to a B-2 or B-5
permit holder for subsequent resale to a retailer.
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(2) The holder of an A-2 permit shall not sell
directly to a consumer unless the product is sold
on the premises in accordance with division (A)
of this section. In order to make sales to a
consumer off the premises where the wine is
manufactured, the manufacturer shall obtain an
S-1 or S-2 permit.
(3) Nothing in this chapter prohibits an A-2
permit holder from also holding a B-2a, S-1, or S2 permit.
(C) The fee for this permit is seventy-six dollars
for each plant to which this permit is issued.
Ohio Rev. Code §4303.07
Permit B-2 may be issued to a wholesale
distributor of wine to purchase from holders of A2, A-2f, and B-5 permits and distribute or sell
that product, in the original container in which it
was placed by the B-5 permit holder or
manufacturer at the place where manufactured,
to retail permit holders and for home use. The fee
for this permit is five hundred dollars for each
distributing plant or warehouse.
Ohio Rev. Code §4303.071
(A)(1) The division of liquor control may issue a
B-2a permit to a person that manufactures wine.
If the person resides outside this state, the
person shall comply with the requirements
governing the issuance of licenses or permits that
authorize the sale of intoxicating liquor by the
appropriate authority of the state in which the
70a
person resides and by the alcohol and tobacco tax
and trade bureau in the United States
department of the treasury.
(2) The fee for the B-2a permit is twenty-five
dollars.
(3) The holder of a B-2a permit may sell wine to
a retail permit holder. However, a B-2a permit
holder that is a wine manufacturer may sell to a
retail permit holder only wine that the B-2a
permit holder has manufactured and for which a
territory designation has not been filed in this
state.
(4) The holder of a B-2a permit shall renew the
permit in accordance with section 4303.271 of the
Revised Code, except that renewal shall not be
subject to the notice and hearing requirements
established in division (B) of that section.
(B) The holder of a B-2a permit shall collect and
pay the taxes relating to the delivery of wine to a
retailer that are levied under sections 4301.421
and 4301.432 and Chapters 5739. and 5741. of
the Revised Code.
(C) The holder of a B-2a permit shall comply with
this chapter, Chapter 4301. of the Revised Code,
and any rules adopted by the liquor control
commission under section 4301.03 of the Revised
Code.
Ohio Rev. Code §4303.12
Permit C-2 may be issued to the owner or
operator of a retail store to sell wine in sealed
containers only and not for consumption on the
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premises where sold in original containers. The
holder of this permit may also sell and distribute
in original packages and not for consumption on
the premises where sold or for resale, prepared
and bottled highballs, cocktails, cordials, and
other mixed beverages manufactured and
distributed by holders of A-4 and B-4 permits,
and containing not less than four per cent of
alcohol by volume, and not more than twenty-one
per cent of alcohol by volume. The fee for this
permit is three hundred seventy-six dollars for
each location.
Ohio Rev. Code §4303.25
No person personally or by the person’s clerk,
agent, or employee shall manufacture,
manufacture for sale, offer, keep, or possess for
sale, furnish or sell, or solicit the purchase or sale
of any beer or intoxicating liquor in this state, or
transport, import, or cause to be transported or
imported any beer, intoxicating liquor, or alcohol
in or into this state for delivery, use, or sale,
unless the person has fully complied with this
chapter and Chapter 4301. of the Revised Code
or is the holder of a permit issued by the division
of liquor control and in force at the time.
The superintendent of liquor control may adopt
rules requiring a person acting as an agent,
solicitor, trade marketing professional, or
salesperson for a manufacturer, supplier, broker,
trade marketing company, or wholesale
distributor, who solicits permit holders
authorized to deal in beer and intoxicating liquor,
to be registered with the division and may cite
72a
the registrant to the liquor control commission
for a violation of this chapter, Chapter 4301. of
the Revised Code, or the rules adopted by the
commission or superintendent.
A trade marketing professional may be
registered for more than one trade marketing
company.
No
manufacturer,
supplier,
wholesale
distributor, broker, or retailer of beer or
intoxicating liquor, or other person shall employ,
retain, or otherwise utilize any person in this
state to act as an employee, agent, solicitor, or
salesperson, or act in any other representative
capacity to sell, solicit, take orders, or receive
offers to purchase or expressions of interest to
purchase beer or intoxicating liquor from any
person, at any location other than a liquor permit
premises, except as specifically authorized by
Chapter 4301. or 4303. of the Revised Code or
rules adopted thereunder. No function, event, or
party shall take place at any location other than
a liquor permit premises where any person acts
in any manner to sell, solicit, take orders, or
receive offers to purchase or expressions of intent
to purchase beer or intoxicating liquor to or from
any person, except as specifically authorized by
Chapter 4301. or 4303. of the Revised Code or
rules adopted thereunder.
As used in this section, “trade marketing
company” and “trade marketing professional”
have the same meanings as in section 4301.171
of the Revised Code.
73a
Ohio Rev. Code §4303.232
(A)(1) The division of liquor control may issue an
S-1 permit to a person that manufactures beer or
less than two hundred fifty thousand gallons of
wine per year. If the person resides outside this
state, the person shall comply with the
requirements governing the issuance of licenses
or permits that authorize the sale of beer or
intoxicating liquor by the appropriate authority
of the state in which the person resides and by
the alcohol and tobacco tax and trade bureau of
the United States department of the treasury.
(2) The fee for the S-1 permit is twenty-five
dollars.
(3) An S-1 permit holder may sell beer or wine to
a personal consumer by receiving and filling
orders that the personal consumer submits to the
permit holder. The permit holder shall sell only
beer or wine that the permit holder has
manufactured to a personal consumer.
(4) An S-1 permit holder shall renew the permit
in accordance with section 4303.271 of the
Revised Code, except that the renewal shall not
be subject to the notice and hearing requirements
established in division (B) of that section.
(5) The division may refuse to renew an S-1
permit for any of the reasons specified in section
4303.292 of the Revised Code or if the holder of
the permit fails to do any of the following:
(a) Collect and pay all applicable taxes specified
in division (B) of this section;(b) Pay the permit
fee;
74a
(c) Comply with this section or any rules adopted
by the liquor control commission under section
4301.03 of the Revised Code.
(B)(1) An S-1 permit holder who sells wine shall
collect and pay the taxes relating to the delivery
of wine to a personal consumer that are levied
under sections 4301.421, 4301.43, and 4301.432
and Chapters 5739. and 5741. of the Revised
Code.
(2) An S-1 permit holder who sells beer shall
collect and pay the taxes relating to the delivery
of beer to a personal consumer that are levied
under sections 4301.42 and 4301.421 and
Chapters 4305., 4307., 5739., and 5741. of the
Revised Code.
(C)(1) An S-1 permit holder shall send a
shipment of beer or wine that has been paid for
by a personal consumer to that personal
consumer via an H permit holder. Prior to
sending a shipment of beer or wine to a personal
consumer, an S-1 permit holder, or an employee
of the permit holder, shall make a bona fide effort
to ensure that the personal consumer is at least
twenty-one years of age. The shipment of beer or
wine shall be shipped in a package that clearly
states that it contains alcohol. No person shall
fail to comply with division (C)(1) of this section.
(2) Upon delivering a shipment of beer or wine to
a personal consumer, an H permit holder, or an
employee of the permit holder, shall verify that
the personal consumer is at least twenty-one
years of age by checking the personal consumer’s
driver’s or commercial driver’s license or
75a
identification card issued under sections 4507.50
to 4507.52 of the Revised Code.
(3) An S-1 permit holder shall keep a record of
each shipment of beer or wine that the permit
holder sends to a personal consumer. The records
shall be used for all of the following:
(a) To provide a copy of each beer or wine
shipment invoice to the tax commissioner in a
manner prescribed by the commissioner. The
invoice shall include the name of each personal
consumer that purchased beer or wine from the
S-1 permit holder in accordance with this section
and any other information required by the tax
commissioner.
(b) To provide annually in electronic format by
electronic means a report to the division. The
report shall include the name and address of each
personal consumer that purchased beer or wine
from the S-1 permit holder in accordance with
this section, the quantity of beer or wine
purchased by each personal consumer, and any
other information requested by the division. The
division shall prescribe and provide an electronic
form for the report and shall determine the
specific electronic means that the S-1 permit
holder must use to submit the report.
(c) To notify a personal consumer of any health or
welfare recalls of the beer or wine that has been
purchased by the personal consumer.
(D) As used in this section, “personal consumer”
means an individual who is at least twenty-one
years of age, is a resident of this state, does not
hold a permit issued under this chapter, and
76a
intends to use beer or wine purchased in
accordance with this section for personal
consumption only and not for resale or other
commercial purposes.
(E) An S-1 permit holder shall comply with this
chapter, Chapter 4301. of the Revised Code, and
any rules adopted by the liquor control
commission under section 4301.03 of the Revised
Code.
Ohio Rev. Code §4303.233
(A) As used in this section, “personal consumer”
means an individual who is at least twenty-one
years of age, is a resident of this state, does not
hold a permit issued under this chapter, and
intends to use wine purchased in accordance with
this section for personal consumption only and
not for resale or other commercial purposes.
(B)(1) The division of liquor control may issue an
S-2 permit to a person that manufactures two
hundred fifty thousand gallons or more of wine
per year. If the person resides outside this state,
the person shall comply with the requirements
governing the issuance of licenses or permits that
authorize the sale of beer or intoxicating liquor
by the appropriate authority of the state in which
the person resides and by the alcohol and tobacco
tax and trade bureau of the United States
department of the treasury.
(2) An S-2 permit holder may sell wine to a
personal consumer by receiving and filling orders
that the personal consumer submits to the
permit holder. The permit holder shall sell only
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wine that the permit holder has manufactured to
a personal consumer. An S-2 permit holder may
use a fulfillment warehouse registered under
section 4303.234 of the Revised Code to send a
shipment of wine to a personal consumer. A
fulfillment warehouse is an agent of an S-2
permit holder and an S-2 permit holder is liable
for violations of this chapter and Chapter 4301.
of the Revised Code that are committed by the
fulfillment warehouse regarding wine shipped on
behalf of the S-2 permit holder.
(C) An S-2 permit holder shall collect and pay the
taxes relating to the delivery of wine to a
personal consumer that are levied under sections
4301.421, 4301.43, and 4301.432 and Chapters
5739. and 5741. of the Revised Code.
(D)(1) An S-2 permit holder shall send a
shipment of wine that has been paid for by a
personal consumer to that personal consumer via
an H permit holder. Prior to sending a shipment
of wine to a personal consumer, the S-2 permit
holder, or an employee of the permit holder, shall
make a bona fide effort to ensure that the
personal consumer is at least twenty-one years of
age. The shipment of wine shall be shipped in a
package that clearly states that it contains
alcohol. No person shall fail to comply with
division (D)(1) of this section.
(2) Upon delivering a shipment of wine to a
personal consumer, an H permit holder, or an
employee of the permit holder, shall verify that
the personal consumer is at least twenty-one
years of age by checking the personal consumer’s
driver’s or commercial driver’s license or
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identification card issued under sections 4507.50
to 4507.52 of the Revised Code.
(3) An S-2 permit holder shall keep a record of
each shipment of wine that the permit holder
sends to a personal consumer. The records shall
be used for all of the following:
(a) To provide a copy of each wine shipment
invoice to the tax commissioner in a manner
prescribed by the commissioner. The invoice
shall include the name of each personal
consumer that purchased wine from the S-2
permit holder in accordance with this section and
any other information required by the tax
commissioner.
(b) To provide annually in electronic format by
electronic means a report to the division. The
report shall include the name and address of each
personal consumer that purchased wine from the
S-2 permit holder in accordance with this section,
the quantity of wine purchased by each personal
consumer, and any other information requested
by the division. If the S-2 permit holder uses a
fulfillment warehouse registered under section
4303.234 of the Revised Code to send a shipment
of wine on behalf of the S-2 permit holder, the S2 permit holder need not include the personal
consumer information for that shipment in the
report. The division shall prescribe and provide
an electronic form for the report and shall
determine the specific electronic means that the
S-2 permit holder must use to submit the report.
(c) To notify a personal consumer of any health or
welfare recalls of the wine that has been
purchased by the personal consumer.
79a
(E) An S-2 permit holder shall comply with this
chapter, Chapter 4301. of the Revised Code, and
any rules adopted by the liquor control
commission under section 4301.03 of the Revised
Code.
(F)(1) An S-2 permit holder shall renew the
permit in accordance with section 4303.271 of the
Revised Code, except that the renewal shall not
be subject to the notice and hearing requirements
established in division (B) of that section.
(2) The division may refuse to renew an S-2
permit for any of the reasons specified in section
4303.292 of the Revised Code or if the permit
holder fails to do any of the following:
(a) Collect and pay all applicable taxes specified
in division (C) of this section;
(b) Pay the permit fee;
(c) Comply with this section or any rules adopted
by the liquor control commission under section
4301.03 of the Revised Code.
(G) The fee for the S-2 permit is two hundred fifty
dollars.
Ohio Rev. Code §4303.236
(A) No family household shall purchase more
than twenty-four cases of twelve bottles of seven
hundred fifty milliliters of wine in one year.
(B)(1) Except as provided in sections 4303.185
and 4303.27 of the Revised Code, no person shall
knowingly send or transport a shipment of wine
to a personal consumer, as defined in section
80a
4303.233 of the Revised Code, without an S-1 or
S-2 permit or registering as a fulfillment
warehouse under section 4303.234 of the Revised
Code. This division does not apply to an H permit
holder.
(2) Except as provided in sections 4303.185 and
4303.27 of the Revised Code, no person shall
knowingly send or transport a shipment of beer
to a personal consumer, as defined in section
4303.232 of the Revised Code, without an S-1
permit. This division does not apply to an H
permit holder.
(C) A person that is not a beer or wine
manufacturer, including the holder of any retail
permit in this state or outside of this state, shall
not obtain or attempt to obtain a B-2a, S-1, or S2 permit.
Ohio Rev. Code §4303.35
No holders of retail permits shall purchase any
beer subject to the tax imposed by sections
4301.42 and 4305.01 of the Revised Code or any
wine or mixed beverage subject to the tax
imposed by section 4301.43 of the Revised Code
for resale, except from holders of A or B permits.
No holders of retail permits shall purchase
spirituous liquor for resale except from the
division of liquor control, unless with the special
consent of the division under particular
regulations and markup provisions prescribed by
the superintendent of liquor control.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.