The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/213936
H OW W E GOT THERE In October, 1918, just prior to the effective date of national Prohibition, Congress enacted the National Prohibition Act, also known as the Volstead Act.4 The act prohibited the manufacture, sale, transport or possession of intoxicating liquor within the U.S., with some exceptions, including beverages prescribed by licensed physicians and wine for sacramental purposes, to be purchased by rabbis, ministers and priests. It also permitted possession and consumption of liquor in a private dwelling for the personal consumption of the owner, his family and private guests, if obtained prior to the effective date of Prohibition. These exceptions were exploited with sometimes comical results, such as rabbis with Irish names, and physician prescription ledgers (which they were required to submit to the U.S. Prohibition Bureau) filled with orders for medicinal liquors for ailments such as "debility" and "La Grippe." It also gave rise to the cruise ship industry, where passengers were free to imbibe beyond the 12mile limit of U.S. territorial waters. The exception loopholes in the Volstead Act provided a means for persons to obtain small amounts of alcohol legally. The unexpected consequence of national Prohibition was the era of lawlessness ushered in by bootleggers and speakeasies. Those excesses have been the subject of television series such as The Untouchables and Boardwalk Empire. In addition to the disrespect for the law engendered by Prohibition, the greed of low-grade bootleggers lead to the repurposing of industrial grade alcohol, and the consumption of those products, such as wood alcohol, isopropyl alcohol, and other toxic compounds, lead to hundreds of cases of blindness and deaths annually.5 By the end of the decade of the 1920s, after witnessing the deleterious effects of Prohibition on American society, many of the former proponents of Prohibition were changing their minds about the continued efficacy of that policy, one of whom was John D. Rockefeller, Jr. Rockefeller was a lifelong "tee-totaler" who had originally enthusiastically endorsed Prohibition, and one of the most respected philanthropists of his time. He came to see that the 18th Amendment was a complete failure. What he witnessed led him to believe that since legally enforced abstinence imposed upon the populace through legal coercion was a failure, a policy of temperance would be the best course for the country to pursue. To this end, he commissioned Raymond B. Fosdick, an attorney, and Albert L. Scott, an engineer, to conduct a study of how the regulatory system in Canada and some countries in Europe helped promote temperance. The results of their study became a blueprint for establishing the regulatory framework for traffic in alcoholic beverages that was used as the authoritative reference by the states upon the repeal of Prohibition.6 Fosdick and Albert set out 10 guidelines for establishing a regulatory licensing scheme, incorporating elements which had proved successful in the other countries which they studied. Those guidelines are as follows: 1. Creation of a single state licensing board, with statewide authority and responsibility, appointed by the governor, with merit personnel manning the agency; 2. The members of the board should be given long terms and should be eligible for reappointment; 3. The "tied house," and every device calculated to place the retail establishment under obligation to a particular distiller or brewer, should be prevented by all available means. The list of those devices includes furnishing of bars, electric signs, refrigerating equipment, extension of credit, and other forms of commercial bribery; 4. Restrictions on the number and character of places where liquor may be sold, such as limits on the number of licenses based upon population; 5. Licenses should be classified to recognize the differences between beer, wine and spirits as problems of control; 6. The hours of sale of liquor, particularly for on-premise consumption, should be carefully regulated; 7. Licenses issued for the retail sale of liquor should run not only to the person who sells, but to the premises where the liquor is sold; 8. The license law should prohibit all sales practices which encourage consumption, including treating on the house, sales on credit or IOUs, bargain days (or happy hours). Rules are also needed to prohibit sales to minors, habitual alcoholics, and anyone who is drunk; 9. Strict regulation of advertising practices; 10. A system to control prices and profits, such as minimum mark-up laws. I n addition to the aforementioned recommendations, Fosdick and Albert were proponents of local option to conform to local attitudes and sensibilities, regarding whether or not to allow sales of alcohol in local cities and counties. They recommended lighter restrictions on the sale of beer and what they termed "natural wines," those with 10-12 percent alcohol by content, and more stringent regulation of spirits and higher proof wines. The study also examined two different options for state regulation of alcohol sales, the control system vs. the license system. The authors favored the control system, which was utilized in Canada, whereby the state has a monopoly on sales of alcohol products, because they thought of that system as being operated by state governments for the benefits of society. They examined the license system whereby controls are establishment of negative rules, regulations, conditions and taxes, imposed by the state upon private enterprise. The reason that they favored the B&B; • 11.13 5 segments of Americans since the first Europeans arrived on our shores is a clear example of something that was malum prohibitum. The fact is that those who liked alcoholic beverages did not stop liking alcohol just because of national Prohibition. The natural laws of supply and demand were destined to prevail. What happened during the 14-year span between the onset of Prohibition and its repeal is an object lesson in good intentions gone awry. By: Daniel R. Meyer