Amicus Curiae Brief — Reed Day, et al., Petitioners v. Ben Henry, in His Official Capacity as Director, Arizona Department of Liquor Licenses and Control, et al.

NO. 25-788

In the

Supreme Court of the United States

_________

REED DAY, ET AL.,

Petitioners,

v.

BEN HENRY, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARIZONA DEPARTMENT OF LIQUOR LICENSES AND CONTROL, ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari to

the United States Court of Appeals for the

Ninth Circuit

_________

BRIEF OF 39 WINE CONSUMERS AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

_________

J. GREGORY TROUTMAN

Counsel of Record

TROUTMAN LAW OFFICE, PLLC

4205 Springhurst Boulevard,

Suite 201

Louisville, KY 40241

502-412-9179

jgtatty@yahoo.com

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................ i

TABLE OF AUTHORITIES ........................................ iii

INTERESTS OF AMICI CURIAE .................................. 1

SUMMARY OF ARGUMENT ........................................ 2

ARGUMENT .............................................................. 5

I.

ARIZONA’S REGULATORY REGIME IS

INCONSISTENT

WITH

THIS

COURT’S

DORMANT

COMMERCE

CLAUSE

JURISPRUDENCE ......................................... 6

A. DORMANT

COMMERCE

CLAUSE

JURISPRUDENCE DOES NOT PERMIT THE

CONDITIONING OF MARKET ACCESS

UPON

AN

IN-STATE

PHYSICAL

PRESENCE ............................................. 7

B. ARIZONA’S

IN-STATE

PHYSICAL

PRESENCE REQUIREMENT IS AN

HISTORICAL ANACHRONISM ................. 9

1. TECHNOLOGY: MAKING A NONDISCRIMINATORY

REGULATORY

REGIME INTO ONE. ....................... 9

2. ARIZONA’S

EMBRACE

OF

TECHNOLOGY HAS WEAKENED ITS

INTERESTS

IN

REQUIRING

LOCALIZED REGULATION ............ 11

ii

C. ARIZONA’S

IN-STATE

PRESENCE

REQUIREMENT

IMPERMISSIBLY

DISCRIMINATES

AGAINST

OUT-OFSTATE WINE RETAILERS ..................... 14

II. THE MARKETPLACE EVOLUTION RESULTING

FROM

THE

COVID-19

PANDEMIC

HIGHLIGHTS THE DISCRIMINATORY AND

ARBITRARY

EFFECTS

OF

ARIZONA’S

LICENSING REGIME................................... 18

III. THE THREE-TIER SYSTEM HAS MORPHED

BEYOND ALCOHOLIC BEVERAGES ............. 21

CONCLUSION ......................................................... 24

APPENDIX. NAMES OF INDIVIDUAL AMICI……….A-1

iii

TABLE OF AUTHORITIES

CASES:

CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008)…….....……………….……...6

Cooper v. McBeath,

11 F.3d 547 (5th Cir. 1994)…………….……..…14

Granholm v. Heald,

540 U.S. 460 (2005) …………….….………passim

H.P. Hood & Sons v. Du Mond,

336 U.S. 525 (1949)……………..…………………8

Hutto v. Davis,

460 U.S. 533 (1983)…………………………..……6

Johnson v. Haydel,

278 U.S. 16 (1928)………………………………..23

Minnesota v. Barber,

136 U.S. 313 (1890)………………………………23

North Dakota v. U.S.,

495 U.S. 423 (1990) ………………………...…4, 11

Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970)…………………..……...,.8, 23

S. Dakota v. Wayfair, Inc.,

585 U.S. 162 (2018)………......………………….13

iv

CASES—CONTINUED:

South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984)…………...………………23

Tenn. Wine & Spirits Retailers Ass’n v. Thomas,

588 U.S. 504 (2019)..…………………….....passim

CONSTITUTIONS AND STATUTES:

U.S. CONST., AMEND. XXI…………………....passim

U.S. CONST., ART. I, § 8, cl. 3…………..….....passim

ALA. CODE § 28-11-2………………..………………22

ALA. CODE § 28-12-1…………………………..……22

ARIZ. REV. STAT. ANN. § 4-112…..…………………12

ARIZ. REV. STAT. ANN. § 4-203(J)……………..…7, 9

ARIZ. H.B. 2773, 55th Leg., 1st Reg. Sess. (Ariz.

2021)……………………………………..…………19

KY. REV. STAT. ANN. § 243.401………………….…22

KY. REV. STAT. ANN. § 438.337………………….…22

TENN. CODE § 57-7-101………………….…………22

VA. CODE § 18.2-371.2………………………………22

REGULATIONS:

ARIZ. ADMIN. CODE. R19-1-501………………………12

v

REGULATIONS—CONTINUED:

ARIZ. Executive Order 20-09 (Mar. 19, 2020)…...18

ARIZ. Executive Order 20-12 (Mar. 23, 2020)……18

RULES:

SUPREME COURT RULE 37.2………………………..1

SUPREME COURT RULE 37.6………………………..1

OTHER RESOURCES:

Ayyala-Somayajula, D., et al., Trends in Alcohol

Use After the COVID-19 Pandemic: A National

Cross-Sectional Study, ANNALS OF INTERNAL MEDICINE 178:1 (Nov. 12, 2024)…………..……………19

BBC News, Coronavirus: How the pandemic is relaxing US drinking laws. (May 15, 2020)....….....19

Fortune, How the On-Demand Liquor Delivery

Business Changed Overnight During the Coronavirus Pandemic. (April 11, 2020)…....…………....19

Fosdick, R., et al., Toward Liquor Control, Harper

& Bros. (1933)……………………………………….20

Laurence H. Tribe, How to Violate the Constitution

Without Really Trying: Lessons from the Repeal of

Prohibition to the Balanced Budget Amendment,

12 CONST. COMMENT. 217 (1995)….………………..5

1

INTERESTS OF AMICI CURIAE1

Premium wine consumers nationwide2 desire

to have access to wines produced beyond the borders of their own localities. Amici are among those

consumers, but discriminatory state laws, like the

Arizona law challenged here, stymie their attempts to acquire rare, collectible, or limited-production wines. Such laws are discriminatory because they prevent out-of-state retailers who can

provide the desired products from selling and delivering wine directly to them. States like Arizona

try to justify its discrimination on pretextual

grounds rooted in an archaic regulatory model

which technology has fossilized.

Amici advocate for allowing the premium

wines they enjoy to flow through the stream of

commerce in the most efficient way because modern technology addresses the interests of states in

ensuring satisfaction of the Twenty-First Amendment’s core principles. As wine enthusiasts, amici

have an interest in ensuring a fair and level marketplace for fellow Arizona wine enthusiasts. They

1 Pursuant to Supreme Court Rule 37.6, counsel

for amici curiae states that no counsel for any party

authored this brief in whole or in part or made any

monetary contribution. Pursuant to Supreme Court

Rule 37.2, written notice of intent to file was given

to counsel for all parties more than 10 days in advance of this filing.

2 The names of all Amici are listed in the Appen-

dix.

2

have an interest in ensuring that protectionist

laws which violate the Dormant Commerce

Clause, like those challenged here, are struck

down.

The Court should grant the Petitioners’ Petition for Writ of Certiorari.

SUMMARY OF ARGUMENT

First, this case once again concerns the tension

between the Constitution’s Twenty-First Amendment and its Dormant Commerce Clause. The former provides states with broad authority to regulate the “transportation or importation” of alcoholic beverages. However, the Dormant Commerce

Clause prohibits states from discriminating

against interstate commercial interests in favor of

intrastate ones when regulating. Such prohibition

encompasses both direct discrimination and practical-effect discrimination. When a conflict arises,

this Court’s precedent holds the Dormant Commerce Clause generally prevails.

The retail sale of wine, like nearly all other

consumer goods, has shifted towards online or remote sales since the beginning of the 21st Century.

Arizona law has embraced this shift, but it imposes a requirement that wine retailers must have

an in-state physical presence as a condition making remote sales to Arizona residents. Such requirement, however, flies in the face of both this

Court’s jurisprudence and the economic reality of

today’s commercial world. Online retail portals

3

have been a radical paradigm shift; providing consumers with almost unlimited retail choices. This

was beyond comprehension in 1933 at the TwentyFirst Amendment’s ratification.

Technology has changed the economy—more

specifically, altering the paradigm of how goods

flow to consumers which existed for a significant

period of the post-Prohibition era. Today’s technology was unfathomable when Prohibition ended.

That technology necessitated localized oversight

which today’s technology has obviated. What was

impossible in 1933 is now possible, practical and

efficient because technological advances have negated the necessity and justification for an in-state

physical presence requirement.

Such requirements may have been justified

when a wide gap existed between out-of-state retailers and in-state consumers. They became arbitrary once technology closed the gap and allowed

out-of-state interests to serve in-state consumers

in a way which effectively and efficiently promotes

the Twenty-First Amendment’s core principles.

The ability of out-of-state interests to reach instate consumers through internet and app-based

portals has changed the paradigm such that requiring an in-state physical presence is both discriminatory in practical effect and arbitrary.

Second, Arizona’s in-state physical presence

requirement is a vestige of Arizona’s post-Prohibition regulatory regime. Technology has made this

4

relic regime an historic anachronism which discriminates against interstate commerce by arbitrarily placing undue burdens upon out-of-state interests which makes it economically impractical to

conduct business there. Such regime is a pretext

for states to put their thumbs on the regulatory

scale. This Court’s Dormant Commerce Clause jurisprudence forbids this kind of protectionism.

Third, Arizona curiously does not assert the

ubiquitous Twenty-First Amendment defense: its

in-state physical presence requirement promotes

the Amendment’s “core principles”—protecting its

citizens’ public health and welfare while aiding the

raising of revenue.3 Arizona’s reliance, however, is

pretextual because its own regulatory policies

have actually made alcoholic beverages more readily available to its residents—far from promoting

the core principle of temperance—all while widening the unconstitutional disparity between instate and out-of-state interests.

Finally, states like Arizona premise their instate physical presence requirement upon preserving a three-tier distribution system—another postProhibition historic anachronism. However, states

have begun blurring the lines by foisting their

three-tier alcohol distribution systems upon non3 The core principles underlying the Twenty-First

Amendment are promoting temperance, ensuring orderly market conditions and raising revenue. See

North Dakota v. U.S., 495 U.S. 423, 432 (1990) (plurality opinion.

5

alcoholic products—along with in-state physical

presence requirements for distribution and retail.

It is critical that the Court address the important constitutional issues here and clarify the

constitutionality of in-state physical presence requirements in the face of modern technology.

ARGUMENT

This case requires the Court to again act as a

traffic cop—directing traffic at the intersection of

the Constitution’s Dormant Commerce Clause4

and its Twenty-First Amendment.5 The flow of

traffic through this intersection has an ironic consequence—

“there are two ways, and two ways only,

in which an ordinary private citizen, acting under her own steam and under color

of no law, can violate the United States

Constitution. One is to enslave somebody,

a suitably hellish act. The other is to

bring a bottle of beer, wine, or bourbon

into a state in violation of its beverage

control laws.”

Laurence H. Tribe, How to Violate the Constitution

Without Really Trying: Lessons from the Repeal of

Prohibition to the Balanced Budget Amendment,

12 CONST. COMMENT. 217 (1995).

4 U.S. CONST., ART. I, § 8, cl. 3.

5 U.S. CONST., AMEND. XXI.

6

The Amici concur that the Court should grant

certiorari to determine whether the Ninth Circuit’s divided opinion is consistent with salient

prevailing jurisprudence. Granholm v. Heald, 540

U.S. 460 (2005) settled the tension between the

Twenty-First Amendment and the Dormant Commerce Clause vis-à-vis in-state physical presence

requirements. Tenn. Wine & Spirits Retailers

Ass’n v. Thomas, 588 U.S. 504 (2019) upheld

Granholm and reiterated such fact. The Ninth Circuit’s divided opinion is incongruent with the most

recent precedent.

The fundamental purpose of stare decisis is to

bring certainty and stability to the law. CBOCS

West, Inc. v. Humphries, 553 U.S. 442, 457 (2008).

Thus, lower courts must follow this Court’s decisions. Hutto v. Davis, 460 U.S. 533, 535 (1983). The

Ninth Circuit majority adopted a myopic view of

the Dormant Commerce Clause’s impact upon the

Twenty-First Amendment; thus, demonstrating

the constitutional significance of this case. Such

majority opinion disregarded settled principles.

This Court should put to rest once and for any

question about the constitutionality of in-state

physical presence requirements at the retail level.

I.

ARIZONA’S REGULATORY REGIME IS INCONSISTENT

WITH

THIS

COURT’S

DORMANT COMMERCE CLAUSE JURISPRUDENCE

This Court’s jurisprudence clearly premises

that the Dormant Commerce Clause’s non-discrimination principles constrain a state’s Twenty-

7

First Amendment authority to regulate alcoholic

beverages. Both Granholm and Tenn. Wine applied these coordinate principles to establish the

rule that states may not compel out-of-state entities to establish an in-state physical presence as a

condition of gaining market access otherwise

available only to in-state entities. Granholm at

475; Tenn. Wine at 543.

A. DORMANT COMMERCE CLAUSE JURISPRUDENCE DOES NOT PERMIT THE

CONDITIONING OF MARKET ACCESS

UPON AN IN-STATE PHYSICAL PRESENCE

ARIZ. REV. STAT. ANN. § 4-203(J) permits licensed alcoholic beverage retailers to take remote

orders from Arizona customers and deliver alcoholic beverages to them but requires that any such

deliveries be loaded “at the premises of the retail

licensee in this state and delivered in this state.”

ARIZ. REV. STAT. ANN. § 4-203(J) (emphasis

added).

The Twenty-First Amendment grants Arizona

broad authority to choose the tone and tenor of its

alcoholic beverage control policies. It certainly

grants Arizona the authority to permit the remote

sale and delivery of alcoholic beverages within its

borders. Once it does, the Dormant Commerce

Clause constrains Arizona’s authority to require

an in-state physical presence as a condition of

availing that accommodation.

8

The Dormant Commerce Clause is thus the

guardrail which ensures that states provide a level

playing field for both intrastate and interstate interests. That is the constitutional guardrail which

exists at the Twenty-First Amendment’s intersection with the Dormant Commerce Clause. This

Court’s jurisprudence verifies this fact in recognizing a singular national marketplace. H.P. Hood &

Sons v. Du Mond, 336 U.S. 525 (1949). The

Dormant Commerce Clause’s purpose is to avoid

discrimination which results in inefficiencies

within that broad marketplace, Pike v. Bruce

Church, Inc., 397 U.S. 137 (1970). The gist of both

Granholm and Tenn. Wine is that the Court views

with suspicion those state statutes which require

an in-state physical presence when the same operations already exist and operate more efficiently

elsewhere.

This Court should accept review because the

Ninth Circuit’s divided ruling is incongruent with

this Court’s Dormant Commerce Clause jurisprudence. Arizona’s embrace of technology—making

alcoholic beverages more readily available to consumers—evidences a relaxed importance of the

Twenty-First Amendment’s core principles. This

warrants a conversation about the continued constitutional viability of the three-tier regulatory

model.

9

B. ARIZONA’S IN-STATE PHYSICAL PRESENCE REQUIREMENT IS AN HISTORICAL ANACHRONISM

That conversation has become necessary because in-state physical presence requirements,

like that in ARIZ. REV. STAT. ANN. § 4-203(J), are

vestiges of an historically anachronistic three-tier

regulatory model. The efficiencies and technological innovations of the 21st Century have fossilized

that model.

1. TECHNOLOGY: MAKING A NONDISCRIMINATORY

REGULATORY

REGIME INTO ONE.

Technology has hastened the fossilization of

many routines of life from the younger years of

those involved in this case (aside from the Gen-Z

law clerks).6 However, it is doubtful those who de-

6 In the not-too-distant past, we drove cross-coun-

try with the assistance of paper maps, perhaps obtained at a roadside gas station. Today, our cars and

mobile phones have built-in turn-by-turn GPS systems with a friendly voice to guide us when driving.

Today, you may be just as likely to stop to charge

your car than to re-fuel it.

Technology has similarly changed the retail sale

paradigm for alcoholic beverages. In past times, purchasing a bottle of premium wine meant physically

traveling to retail stores in search of a desired product. Today, technology allows customers to order

from an online portal or app and have the product

efficiently delivered to them.

10

bated the Twenty-First Amendment as a compromise to end Prohibition had a window into today’s

world. It is thus doubtful those debates perceived

the scope, benefits and efficiencies of today’s technology when crafting the three-tier distribution

system and its conjoined in-state physical presence requirement as the preferred post-Prohibition regulatory paradigm. Those debates could not

have fathomed either the breadth and depth of today’s consumer marketplace or how technology

would radically change the regulation of the marketplace.

At the end of Prohibition, physical stores usually offered limited selections of goods. Imagine

the reaction of a consumer from 1933 walking into

a Walmart® Supercenter. Back then, consumers in

much of America who wished to access an expanded selection of goods had to find a Sears® or

Montgomery Ward® catalog, mail in an order and

then wait for the post office to deliver it. Instantaneous consumer-driven concepts like Amazon

Prime® or Door Dash® were well beyond the comprehension of people at the time.

Further, the technology at Prohibition’s end

would not have allowed states to regulate out-ofstate retailers even if they could have engaged in

remote sales to out-of-state consumers. The inability to do either meant that in-state physical presence requirements as part of a three-tier regulatory model could be justified as advancing the

Twenty-First Amendment’s core principles.

11

These core principles are woven into the

Twenty-First Amendment: encouraging moderation, regulating the market, and generating revenue. See North Dakota, supra., at 432 (plurality

opinion). Before the digital age, Arizona’s in-state

physical presence requirement was non-discriminatory. Technology simply made it impractical, if

not impossible, for out-of-state retailers to directly

reach Arizona consumers. Today, however, Arizona’s in-state physical presence requirement is

now discriminatory because technology allows outof-state interests to serve Arizona consumers in a

way consistent with ensuring the state’s ability to

ensure its regulatory interests. This reality should

frame the issues before the Court here.

2. ARIZONA’S EMBRACE OF TECHNOLOGY HAS WEAKENED ITS INTERESTS IN REQUIRING LOCALIZED REGULATION

The state of technology between the end of Prohibition and the close of the 20th Century necessitated localized regulation of alcoholic beverages.

There were no computers, high-speed internet,

digital recordkeeping or remote mass data storage

in 1933. These technologies did not merge until the

21st Century. That meant alcoholic beverage retailers had to keep paper records. Localized regulation was necessary because the records of alcoholic beverage retailers were neither readily capable of mass duplication nor portable.

12

Today, however, the paperwork needed by regulators is more likely to be a digital packet of information stored on a remote cloud server. Many

states require or permit the electronic submission

of the records necessary for regulatory oversight.7

Technology thus allows out-of-state retailers to

provide any required records to Arizona regulators

just as quickly and efficiently as Arizona-based retailers. Before the 21st Century, non-portable regulatory records were likely stored in a central repository in Phoenix or in each city or county. Today, it is likely that Arizona regulators store digital regulatory records on a cloud platform far from

Arizona.

The technology which obviates the need for localized regulation also obviates the justification

for in-state physical presence requirements. Thus,

the same technology which allows a retailer in

Laughlin, Nevada to remotely transmit records to

Arizona officials also allows those officials to remotely regulate that retailer. Technology has

made the business records needed for regulation

highly transportable. Highspeed internet technology also allows Arizona regulators to conduct both

7 Arizona permits alcoholic beverage retailers to

maintain electronic records. See ARIZ. ADMIN. CODE.

R19-1-501. Arizona also maintains a technologydriven E-licensing system for license applications,

renewals, fee payments, and other licensing functions. Arizona also embraces the use of electronic signatures on submissions. ARIZ. REV. STAT. ANN. § 4112.

13

real-time and virtual compliance inspections by

way of live streaming 4k digital video cameras.8

Arizona’s requirement that out-of-state retailers who desire to sell alcoholic beverages to its residents must establish an in-state physical presence is an historic anachronism which can no

longer be justified by the Twenty-First Amendment’s core principles. It is undeniable that paradigm-shifting technologies have narrowed the gap

between retailers and consumers—irrespective of

the physical distance between them. S. Dakota v.

Wayfair, Inc., 585 U.S. 162 (2018).

Technology allows consumers to purchase any

number and variety of goods without ever leaving

their couch. Arizona has embraced gap-narrowing

technologies in regulating its alcoholic beverage

marketplace—allowing in-state wine retailers to

directly sell and deliver to Arizona consumers. Its

in-state physical presence requirement is an impermissible impediment to out-of-state retailers in

the face of the technological advances which enable Arizona to effectively regulate them.

This Court has recognized the critical changes

brought about by technology vis-à-vis the regulation of alcoholic beverages: “[i]n this age of split-

Emerging technologies like Artificial Intelligence also have the potential to aid state alcoholic

beverage regulators as well as assisting consumers

in selecting desired products.

8

14

second communications by means of computer networks . . . there is no shortage of less burdensome,

yet still suitable, options.” Tenn. Wine, supra., at

541, citing Cooper v. McBeath, 11 F. 3d 547, 554

(5th Cir. 1994). This Court should accept review to

determine whether Arizona’s in-state physical

presence requirement is consistent with Granholm

and Tenn. Wine.

C. ARIZONA’S IN-STATE PRESENCE REQUIREMENT IMPERMISSIBLY DISCRIMINATES AGAINST OUT-OF-STATE WINE

RETAILERS

The Dormant Commerce Clause requires that

states provide a level marketplace between intrastate and interstate interests. The Dormant Commerce Clause thus constrains Arizona’s TwentyFirst Amendment authority to grant a benefit to

its in-state wine retailers which it does not offer on

a non-discriminatory basis to out-of-state retailers. Arizona’s in-state physical presence requirement discriminates in practical effect because it

imposes an unfair market burden upon out-ofstate retailers. The fact the Twenty-First Amendment grants states authority to regulate alcohol

sales in a particular manner does not exempt those

regulations from Dormant Commerce Clause scrutiny. Granholm, 540 U.S. at 466.

No longer can a state impose an in-state physical presence requirement; shrug its shoulders;

and point to the Twenty-First Amendment.

15

The Twenty-First Amendment, for example,

authorizes states to limit alcohol sales to face-toface transactions. That is not discriminatory because it evenly applies to both in-state and out-ofstate retailers. The Twenty-First Amendment conversely authorizes states to permit online or remote sales of alcoholic beverages. This would not

pose a discriminatory market barrier to out-ofstate retailers who eschew online sales or simply

do not wish to engage a broader marketplace. That

same policy, however, poses a clear market impediment to out-of-state premium wine retailers who

employ online and remote sales technologies and

wish to reach Arizona customers.

Arizona’s licensing regime forces out-of-state

retailers to establish a brick-and-mortar presence

in the state, secure an Arizona resident managing

officer, and then sell from that location. This is an

example of practical effect discrimination against

out-of-state interests: the unrealistic and wholly

inefficient requirement to establish an in-state

physical presence although already having the infrastructure and mechanisms necessary to effect

the sale and delivery of wine to Arizona consumers

in a way which permits effective oversight and regulation. The Dormant Commerce Clause was intended to protect these kinds of efficiencies. Arizona’s barrier cannot be squared with Granholm

and Tenn. Wine.

Look at the question through the eyes of a wine

retailer in Laughlin, Nevada. Arizona’s in-state

16

physical presence requirement forecloses such retailer from delivering to customers in Bullhead

City, Arizona, approximately 6 miles away, even if

it has the physical and technological infrastructure necessary to do so in a safe, efficient and responsible manner. Arizona would have the Nevada

retailer incur the economic redundancy of establishing a second physical presence although its existing physical location is only a few miles away.

Alternatively, look at the issue through the

eyes of premium wine connoisseurs in the Scottsdale and Sedona areas who desire products not

found in Arizona but sold by specialty retailers in

another state. Technology allows an efficient and

responsible means of remotely serving those customers through secure shipment and delivery protocols. Arizona law, however, is a hinderance to

that 21st Century market efficiency.

Arizona’s answer to out-of-state retailers is

that they can freely obtain a retail license when

establishing an in-state physical presence in Arizona. The Ninth Circuit’s divided ruling allows Arizona to say “too bad” to out-of-state retailers while

winking at in-state retailers while putting its

thumb on the economic scale because it reads the

Twenty-First Amendment to countenance such

discrimination.

Tenn. Wine recognizes that not all state regulatory regimes enacted to promote public health,

moral or safety are “to be accepted as a legitimate

exertion of the police powers of the State.” 588 U.S.

17

at 538. Arizona’s in-state physical presence requirement fits that bill. Arizona can no longer justify discriminating against out-of-state retailers

because the same technology which makes it possible for those retailers to remotely deliver wine to

an Arizona consumer also nullifies any argument

that allowing such transactions compromises the

state’s enforcement of the Twenty-First Amendment’s core principles.

Arizona cannot claim the in-state physical

presence requirement promotes temperance when

it embraces its domestic retailers making remote

sales. Arizona cannot claim that its policies are

necessary to ensure an orderly regulation of the

market because technology now allows it to do so

remotely as if its agents were physically present.

Finally, Arizona cannot claim that its policies enhance the ability to raise revenue. Requiring Arizona to offer market parity to out-of-state retailers

would result in increased license and tax revenues.

America’s premium wine consumers hope this

Court will view the issues raised by the Petitioners

and Amici through the prism of someone from

1933 who just experienced 2026 for the first time.

That view would likely shock the senses given the

exponential advances in technology. That advancement has weakened the rationality of continuing to enforce fossilized post-Prohibition policies.

18

II.

THE MARKETPLACE EVOLUTION RESULTING FROM THE COVID-19 PANDEMIC

HIGHLIGHTS THE DISCRIMINATORY AND

ARBITRARY EFFECTS OF ARIZONA’S LICENSING REGIME

The COVID-19 pandemic radically changed

how alcoholic beverage retailers interacted with

consumers—in some ways unheard of prior to the

pandemic. These changes not only have made alcoholic beverages more available to consumers

than ever; they also amplified the discriminatory

market disparity of Arizona’s licensing regime.

Like most states, Arizona closed restaurants

and bars to in-person consumption during the pandemic.9 However, it deemed alcoholic beverage

package retail stores to be “essential businesses”

and allowed them to operate subject to specific

health protocols.10 Arizona also did the unthinkable—permitting retail by-the-drink businesses to

sell alcoholic beverages to-go or by delivery.11

This was a seismic economic shift because it

showed the willingness of states to marry a pragmatically liberalized attitude regarding alcoholic

9 Arizona closed restaurants and bars by way of

ARIZ. Executive Order 2020-09 (Mar. 19, 2020).

10 Arizona deemed that retail package stores were

“essential businesses.” ARIZ. Executive Order 20-12

(Mar. 23, 2020).

11

ARIZ. Executive Order 20-09.

19

beverage regulation to technological advances.12/13

Arizona embraced such liberalization out of necessity to protect its in-state licensees during the pandemic, and then permanently codified some of the

liberalized elements.14 Alcoholic beverages are

now more easily accessible to Arizona’s adult residents than ever before.

States allowing remote by-the-drink alcohol

sales was an unheard-of concept before the pandemic. Not surprisingly, liberalizing remote alcohol sales resulted in a consumption spike as states

made access to products more readily convenient.15

States like Arizona, however, cannot promote liberalized policies which make alcoholic beverages

more readily available for consumption while

claiming a need to promote temperance by effectively prohibiting out-of-state retailers from accessing the expanded marketplace. In-state physi-

12 BBC News, Coronavirus: How the pandemic is

relaxing US drinking laws. (May 15, 2020).

13 Fortune, How the On-Demand Liquor Delivery

Business Changed Overnight During the Coronavirus Pandemic. (April 11, 2020).

H.B. 2773, 55th Leg., 1st Reg. Sess. (Ariz.

2021), eff. Oct. 1, 2021.

14

15 Ayyala-Somayajula, D., et al., Trends in Alco-

hol Use After the COVID-19 Pandemic: A National

Cross-Sectional Study, ANNALS OF INTERNAL MEDICINE 178:1 (Nov. 12, 2024).

20

cal presence requirements are, as discussed supra., a vestigial post-Prohibition policy which allows states to justify discrimination.

The Twenty-First Amendment’s assurance of

state control and regulation was a key element of

the compromise which ended Prohibition. The

1933 book Toward Liquor Control was instrumental in conceiving the three-tier system of distribution as a primary aspect of post-Prohibition state

regulatory regimes.16 The Amendment certainly

authorized states to implement and enforce a

three-tier system. The Dormant Commerce

Clause, however, generally does not permit enforcement of elements of the three-tier system in a

way which discriminates against interstate commerce.

Arizona cannot have it both ways: it cannot

embrace recent technologies which make access to

alcoholic beverages easier for Arizonans while

placing discriminatory hurdles upon out-of-state

interests who wish to serve that expanded market.

Arizona let the genie is out of the proverbial bottle

in allowing remote alcohol sales. It can no longer

hide behind the Twenty-First Amendment’s core

principles as a pretext for discrimination when its

liberalized policies vis-à-vis in-state wine retailers

have eroded the significance of those core princi-

16 Fosdick, R., et al., Toward Liquor Control,

per & Bros. (1933).

Har-

21

ples by perpetuating increased alcohol consumption.

III. THE THREE-TIER SYSTEM HAS MORPHED

BEYOND ALCOHOLIC BEVERAGES

Finally, review is warranted for the Court to

address the continued presumption that the threetier system is constitutional in light of states

morphing that regulatory model far beyond anything ever contemplated by the Twenty-First

Amendment. Allowing states to justify discriminatory alcohol regulations on the grounds that they

believe it is essential to the three-tier system has

emboldened states to adopt discriminatory regulations in domains well beyond the Twenty-First

Amendment’s reach.

No longer are state regulators singularly

tasked with regulating alcoholic beverages within

their three-tier systems. States have begun subjecting products which do not contain a drop of alcohol to regulation by alcoholic beverage control

agencies under their three-tier systems. For example, several states have recently placed the regulation of cannabis-infused beverages in the hands of

alcoholic beverage control regulators and then

shoehorned them into their three-tier distribution

model. These beverages are alcohol-free and contain tetrahydrocannabinol (THC) derived from

22

hemp or marijuana.17 These products, often marketed as alternatives to alcoholic beverages, and

although alcohol-free, are nevertheless being subjected to regulation like alcohol, including being

subjected to an existing three-tier regime. States

have also begun regulating nicotine vaping products, which are also alcohol-free, through the same

alcoholic beverage control agencies and the same

three-tier alcohol regime they enforce.18

The Twenty-First Amendment permits states

to employ a three-tier distribution system for regulating alcoholic beverages. Trying to jam alcoholfree vaping and cannabis products into a fossilized

three-tier regulatory model shoves a square peg

into a round hole. Arbitrarily subjecting alcoholfree products to a regulatory model suited singularly for alcoholic beverages also evidences a dilution of the justification for that model. The result:

a distributor within the three-tier system may

have alcoholic beverages and non-alcoholic products warehoused together and subjected to the

same regulatory regime.

Alabama, Kentucky and Tennessee regulate

hemp-derived products either through their alcoholic beverage commissions or under a similar regulatory model. See ALA. CODE § 28-12-1; KY. REV.

STAT. ANN. § 243.401; TENN. CODE § 57-7-101, et seq.

17

18 Alabama, Kentucky and Virginia regulate vap-

ing products through their alcoholic beverage commissions. See ALA. CODE § 28-11-2; KY. REV. STAT.

ANN. § 438.337; VA. CODE § 18.2-371.2.

23

It is inconceivable this Court would countenance a regulatory regime which conditions marketplace access upon retailers of non-alcohol products establishing an in-state physical presence

given its bedrock Dormant Commerce Clause jurisprudence. See e.g. Minnesota v. Barber, 136 U.S.

313 (1890) (in-state meat inspection requirement);

Johnson v. Haydel, 278 U.S. 16 (1928) (in-state

processing requirement for oysters); Pike, supra.

(in-state packaging requirement for cantaloupes);

and South-Central Timber Development, Inc. v.

Wunnicke, 467 U.S. 82 (1984) (in-state processing

requirement for timber).

The willingness of states like Arizona to

morph its Twenty-First Amendment authority to

subject alcohol-free products to its three-tier system shows that such regulatory model is not a specialized response to alcohol. That regulatory model

should therefore no longer enjoy the constitutional

protection it has historically enjoyed.

This Court held in Granholm, supra. at 489,

that the three-tier system was presumed constitutional. Tenn. Wine, supra. at 535, limited such presumption in finding the Twenty-First Amendment

does not “sanction[] every discriminatory feature

that a State may incorporate into its three-tiered

scheme.” The Court should accept review to consider the withdrawal of the presumption of constitutionality and instead subject the three-tier system to its standard constitutional scrutiny which

will allow a consideration of equal protection implications.

24

CONCLUSION

For the foregoing reasons, this Court should

grant the Petitioners’ Petition for Writ of Certiorari in this matter.

Respectfully submitted,

J. GREGORY TROUTMAN

Counsel of Record

TROUTMAN LAW OFFICE, PLLC

4205 Springhurst Boulevard,

Suite 201

Louisville, KY 40241

502-412-9179

jgtatty@yahoo.com

January 2026

A-1

APPENDIX

NAMES OF INDIVIDUAL AMICI

Alba Winery, Milford NJ

Julie Arger, Reno NV

Terris Ayres, Flora IN

Jerry Bainbridge, Sarasota FL

Peter Bernstein, Wanaque NJ

Kathryn Brown, Bloomington IN

Marshall Burack, Boca Raton FL

David Carlson, Franklin IN

Richard Foard, New Freedom PA

Timothy Freehan, Chicago IL

Myra Gassman, Charlotte NC

Larry Gralla, Reno NV

Joseph Gwin, Indianapolis IN

Itamar Cohen, Indianapolis IN

Sandy Galacio, Wayne NJ

Barbara Goldman, Washington DC

Jim Kuhr, Des Moines IA

Albert Jacobs, Phoenix AZ

Gerald Lande, Indianapolis IN

Justin Leigh, Goldendale WA

A-2

Dennis Neary, Indianapolis IN

Gretchen Nelson, Los Angeles CA

Wendy Newby, Sarasota FL

Faten Munger, Greenwood IN

Jeff Pflugner, Sarasota FL

John Philo, Detroit MI

Maureen Redish, Dallas TX

Steve Pahl, Indianapolis IN

Brandon Rickey, Indianapolis IN

Neil Roberson, Piney Flats TN

Rudolph Rouhana, Indianapolis IN

Tom Sharko, Milford NJ

Steve St. Clair, South Bend IN

Jack Schulz, Detroit MI

Julie Sandler, Indianapolis IN

Cynthia Springer, Indianapolis IN

Chase Wilson, Indianapolis IN

Nelson Genshaft, Columbus OH

Fred Pfenninger, Indianapolis IN