Texas judge rules home distilling ban UNCONSTITUTIONAL!

[1RiverRunner]

Interesting and probably (sadly) realistic perspective on the recent legal decision. https://bevlaw.com/bevlog/federal-distr ... s%20likely.

[jonnys_spirit]

I’m sure the lobbyist groups are all over this from every angle.

Cheers,
jonny

[1RiverRunner]

I’m sure the lobbyist groups are all over this from every angle.

Cheers,
jonny

Sad but true. The Big 4 are probably lined up at the TTB making sure the appeal is in order. I hope more people are joining the HBA daily.

[kiwi Bruce]

Here is the heart of the argument...copied from the original article

The Department of Justice claims the ban ( on at-home distilling ) was a valid measure created by Congress to protect the substantial revenue the government raises from taxing distilled spirits by limiting where plants could be located.

Pittman, however, said the ban was not a valid practice of Congress' taxing power because it did not raise revenue and "did nothing more than statutorily ferment a crime."

Here is the whole article....

A federal judge in Texas has ruled that an 1868 ban on at-home distilling is unconstitutional.

U.S. District Judge Mark Pittman, in his ruling on Wednesday, sided with the Hobby Distillers Association's lawyers that the 156-year-old ban exceeded Congress's taxing power and violated the U.S. Constitution's Commerce Clause. The Hobby Distillers Association is a group that advocates legalizing a person's production of spirits such as whiskey and bourbon for their personal consumption.

"Indeed, the Constitution is written to prevent societal amnesia of the defined limits it places on this government of and by the people," Pittman wrote. "That is where the judiciary must declare when its coequal branches overstep their Constitutional authority. Congress has done so here."

Pittman issued a permanent injunction prohibiting the U.S. government from enforcing the ban against the Hobby Distillers Association's members. The judge also stayed his decision for 14 days to allow the government to seek a stay at the appellate court level.
Devin Watkins, a lawyer for the Texas-based hobby group at the libertarian think tank Competitive Enterprise Institute, told Reuters that the ruling "respects the rights of our clients to live under a government of limited powers."

The hobby group, which represented the plaintiffs, and four of its 1,300 members filed a lawsuit in December against the Alcohol and Tobacco Tax and Trade Bureau and the Department of Justice, saying that the government's regulatory reach could not extend to activities within a person's home.

The Alcohol and Tobacco Tax and Trade Bureau is a division of the Department of the Treasury that regulates and collects taxes on alcohol, while the Department of Justice can prosecute any felonies.
"This decision is a victory for personal freedoms and for federalism," Competitive Enterprise Institute lawyer Dan Greenberg said. "We're pleased to see that the court determined that the home distilling ban is unconstitutional – and that it blocked enforcement of the ban against our clients. More broadly, the court’s decision reminds us that, as Americans, we live under a government of limited powers."

Pittman said that while three of the individual plaintiffs failed to prove they faced a credible threat of facing prosecution without an injunction, the group and one of its members, Scott McNutt, had carried their burden of showing they would be harmed if the ban was not blocked.

McNutt received an unsolicited letter from the Alcohol and Tobacco Tax and Trade Bureau that said he faced potential civil and criminal liability after it learned he may have purchased materials that could be used to distill spirits.

The Department of Justice claims the ban was a valid measure created by Congress to protect the substantial revenue the government raises from taxing distilled spirits by limiting where plants could be located.

Pittman, however, said the ban was not a valid practice of Congress' taxing power because it did not raise revenue and "did nothing more than statutorily ferment a crime."

"While prohibiting the possession of an at-home still meant to distill beverage alcohol might be convenient to protect tax revenue on spirits, it is not a sufficiently clear corollary to the positive power of laying and collecting taxes," the judge wrote.

The judge said the ban on at-home distilling could also not be covered under Congress' power to regulate interstate commerce. He said the ban is "not a 'comprehensive' scheme of regulation because there are many aspects of the alcohol industry that Congress has left untouched."

"While the federal government has become more enthusiastic about inflating the scope of its powers over the last century, this case shows that there are limits to the government’s authority," Watkins, the lawyer for the Texas-based hobby group at the libertarian think tank Competitive Enterprise Institute said in a statement.

"If the government appeals this decision to a higher court, we look forward to illuminating those limits."

[The Booze Pipe]

I didn't stay in a Holiday Inn express last night either... But I think its clear, "the ban was not a valid practice of Congress' taxing power because it did not raise revenue," if this works out, other than dealing with State law, we will be stillin' & grillin' our happy faces off!

[1RiverRunner]

If you would like to show your appreciation through a donation:
https://cei.org/blog/cei-sues-to-end-fe ... lling-ban/

[thecroweater]

Saw an article on this today, and came to share it, shoulda figured you guys would be all over it

[Yonder]

The ruling has made it to national news, favorably commented up by a popular conservative talking head.

[The Booze Pipe]

Saw an article on this today, and came to share it, shoulda figured you guys would be all over it

Nice to see you Croweater!

[rickyaifd]

After reading through this, I am admittedly unsure how the recent West Virginia legalization of Home distilling plays in this. As most of us are aware, as of June 7th this year, home distillation in the state of West Virginia became legal.

[Yummyrum]

Two days to go until the appeal time is up .

[Catfish King]

I'm wondering, Does the days that the government had to file their appeal include weekends or is it business days only? I have been counting all days but I'm not sure if that is correct.

[AlZilla]

I'm wondering, Does the days that the government had to file their appeal include weekends or is it business days only? I have been counting all days but I'm not sure if that is correct.

I find this:
"Rule 6 of the Federal Rules of Civil Procedure provides the following instructions for computing and extending time periods specified in those rules:
Time periods stated in “days” are calendar days. Accordingly, count the days, including intermediate Saturdays, Sundays, and legal holidays.

The date of the trigger event is excluded. Therefore, if you are counting forward from today, then today is day zero, tomorrow is day one, and so forth."
Here: https://courtdeadlines.com/

So, if correct, Wednesday July 14th would be the deadline. At midnight for electronic filing.
EDIT: Fat finger alert - The 24th should be the deadline. sorry ...

I'll be very surprised if they don't appeal. These are the same people waging endless war on the 2nd amendment, using tax payer dollars. They literally have nothing to lose by appealing, since they're using taxpayer $$$, and job security to gain.

[Bolverk]

So, if correct, Wednesday July 14th would be the deadline. At midnight for electronic filing.

If so we should have seen a response/appeal by now being that its the 24th?

Has anyone seen any updates?

[AlZilla]

So, if correct, Wednesday July 14th would be the deadline. At midnight for electronic filing.

If so we should have seen a response/appeal by now being that its the 24th?

Has anyone seen any updates?

The 24th isn't over until 11:59PM. Really, that's just when the original STAY ends and the order goes into effect. I believe an appeal could still be filed for ... maybe 30 days, 90 days? Something like that. And the government could still ask for a stay at that point. In fact, if they file an appeal after the 14 days, it would be expected that they'd ask for a STAY along with the appeal.

Trust them to use Your money to get in Your way.

EDIT: You could just monitor the Hobby Distiller Association FB page. I imagine they'd post there as soon as they had news of an appeal. As of 12:00 Eastern, there's nothing.

[Catfish King]

I'm wondering, Does the days that the government had to file their appeal include weekends or is it business days only? I have been counting all days but I'm not sure if that is correct.

I find this:
"Rule 6 of the Federal Rules of Civil Procedure provides the following instructions for computing and extending time periods specified in those rules:
Time periods stated in “days” are calendar days. Accordingly, count the days, including intermediate Saturdays, Sundays, and legal holidays.

The date of the trigger event is excluded. Therefore, if you are counting forward from today, then today is day zero, tomorrow is day one, and so forth."
Here: https://courtdeadlines.com/

So, if correct, Wednesday July 14th would be the deadline. At midnight for electronic filing.
EDIT: Fat finger alert - The 24th should be the deadline. sorry ...

I'll be very surprised if they don't appeal. These are the same people waging endless war on the 2nd amendment, using tax payer dollars. They literally have nothing to lose by appealing, since they're using taxpayer $$$, and job security to gain.

If the 11th was day 0 that would make the 25th the deadline date if I'm reading and understanding this correctly. I know every victory counts but my state makes it illegal to own a still at all. So I can only hope that changes will come one day.

[AlZilla]

I'm wondering, Does the days that the government had to file their appeal include weekends or is it business days only? I have been counting all days but I'm not sure if that is correct.

I find this:
"Rule 6 of the Federal Rules of Civil Procedure provides the following instructions for computing and extending time periods specified in those rules:
Time periods stated in “days” are calendar days. Accordingly, count the days, including intermediate Saturdays, Sundays, and legal holidays.

The date of the trigger event is excluded. Therefore, if you are counting forward from today, then today is day zero, tomorrow is day one, and so forth."
Here: https://courtdeadlines.com/

So, if correct, Wednesday July 14th would be the deadline. At midnight for electronic filing.
EDIT: Fat finger alert - The 24th should be the deadline. sorry ...

I'll be very surprised if they don't appeal. These are the same people waging endless war on the 2nd amendment, using tax payer dollars. They literally have nothing to lose by appealing, since they're using taxpayer $$$, and job security to gain.

If the 11th was day 0 that would make the 25th the deadline date if I'm reading and understanding this correctly. I know every victory counts but my state makes it illegal to own a still at all. So I can only hope that changes will come one day.

The ruling was issued on 7/10, which I'm taking to be day 0. Either way, I'll be surprised if they don't appeal.

I just looked at the ruling. It says it's stayed for "14 days from the date of this ruling", which was 7/10. We're going to wake up tomorrow and find they filed the appeal electronically at 11:59PM. Betcha.

[Bolverk]

Tomorrow should be an interesting day

[AlZilla]

Well, as I'm typing at 06:54AM (Eastern)this page:
https://www.pacermonitor.com/public/cas ... reau_et_al

Says nothing was filed electronically as of 5 hours ago. The Hobby Distillers FB page has nothing indicating they've received notice of an appeal.

So, it's possible the government didn't appeal. Yet.

Remember, the ruling only applies to members of the Hobby Distillers Association. Also, your state likely outlaws moonshining. Even if it doesn't, I'd be shocked if it doesn't outlaw possession of untaxed spirits,

This is a small step in the right direction. It is not carte blanche to make moonshine.

[Bolverk]

From HDA FB

[Twisted Brick]

Thanks for posting, Bolverk.

[kiwi Bruce]

Two days to go until the appeal time is up .

Times up! I don't know yet it they filed an appeal...but I'm looking!

[HDA]

No appeal was filed. We have updated information on our FB page and blog.

Remember, this is not the end of this. It is a huge first step in the journey to getting hobby distilling the same standing as home brewing and winemaking.

[HDA]

My wife (Dawn) and I have a meeting with our state representative on Aug 2, and would like to take a petition from Texans, along with all of the other information that we will be taking with us. If anyone from Texas would like to get behind this please check our FB, as Dawn will be putting up information on how to sign it.
Also, if you can get a meeting with your state representative, that would help push this along. I know that they are not in session, but that runs such a short time that we need to be proactive on this. The more representatives that are contacted about this the better our chances of changing things here. We can supply information to share with them.

[1RiverRunner]

So now, as a HDA member, you can apply for a permit from the Federal Government to distill in your home, as opposed to the same permitting process for a shed based distillation plant. You will still need to register your still with a serial number before your permit is approved and agree for agents to inspect your home unannounced at will. Prior to your permit’s approval, your alcohol still better not show signs of being used illicitly in case you are flagged for an inspection. The injunction may still be overturned and the location of distillation plant in your home may soon be regarded as a violation in the near future. I doubt the revenuers will have any hard feelings toward HDA members after losing a public lawsuit.

[AlZilla]

So now, as a HDA member, you can apply for a permit from the Federal Government to distill in your home, as opposed to the same permitting process for a shed based distillation plant. You will still need to register your still with a serial number before your permit is approved and agree for agents to inspect your home unannounced at will. Prior to your permit’s approval, your alcohol still better not show signs of being used illicitly in case you are flagged for an inspection. The injunction may still be overturned and the location of distillation plant in your home may soon be regarded as a violation in the near future. I doubt the revenuers will have any hard feelings toward HDA members after losing a public lawsuit.

Exactly. It's a small step but congress needs to act. I think New Hampshire passed a great law - up to 200 gallons of wash per household per year. No permits, inspections or record keeping and it's for your personal use.

I don't see congress acting any time soon.

[HDA]

More and more states are putting in laws expanding home brewing and winemaking to include distilling. It is just common sense, and is the next logical step for the hobbyist home brewer and winemaker.

The TTB application is still specific to pre-ruling information, so we are talking to the lawyers at CEI to see how to handle some of the questions. We cannot post that information everywhere, but will post what we find out on our FB and blog in case anyone wants to complete the application and has questions.

Our goal is to make this a big stepping stone. Hopefully, once the commercial industry sees that the sky is not falling, they will lose interest in fighting full legalization. I also expect that the government (likely with pressure from the TTB) will see that it is costing them too much money to manage the paperwork for the few dollars it will bring in, and they will also be willing to just add us under the home brewing / winemaking sections of the code.

[fiery creations]

More and more states are putting in laws expanding home brewing and winemaking to include distilling. It is just common sense, and is the next logical step for the hobbyist home brewer and winemaker.

The TTB application is still specific to pre-ruling information, so we are talking to the lawyers at CEI to see how to handle some of the questions. We cannot post that information everywhere, but will post what we find out on our FB and blog in case anyone wants to complete the application and has questions.

Our goal is to make this a big stepping stone. Hopefully, once the commercial industry sees that the sky is not falling, they will lose interest in fighting full legalization. I also expect that the government (likely with pressure from the TTB) will see that it is costing them too much money to manage the paperwork for the few dollars it will bring in, and they will also be willing to just add us under the home brewing / winemaking sections of the code.

Commercial guys are fighting it? Lol… just like certain illegal farmers fighting legalizing something they always complained about not being legal. Money over morals every time.

[Bolverk]

I'd sure like to know what commercial guys are fighting against us.

[AlZilla]

On the other hand, maybe TTB is cozying up to congress to "fix" the law. 2 provisions were ruled unconstitutional only because they didn't reference "interstate commerce".

From page 28 of the ruling:
"These provisions are simply “criminal statute(s) that by [their] terms” have no commerce-clause jurisdictional hook to bring the behavior Congress seeks to regulate within its authority"

I bet even a freshman congress-critter could dream up a "jurisdictional hook" to amend the law.

I know, I'm a Debbie Downer. Have you seen the legislative and litigation shenanigans around second amendment issues (gun laws, for our non-US members)? It ain't real pretty.