Author Archives: Brad Warbiany

Can Florida Ban Beer Growlers?

Damon Root, at Reason, on Florida’s ban on 64-oz beer growlers. The law is being challenged by a retail company called The Crafted Keg, which is a “growler bar*”.

To survive judicial review under existing Supreme Court precedent, economic regulations such as Florida’s growler ban must pass what’s known as the rational-basis test. In effect, this test tells the courts that they may strike down a contested law only if it lacks any conceivable connection to a legitimate government interest.
Green Flash Growler of 30th St. Pale Ale
To be sure, that is a highly deferential approach to government regulation. But the Florida growler ban is so moronic it fails to satisfy even the generous terms of the rational-basis test.

After all, what possible legitimate state interest could this ban serve? It certainly cannot be part of some regulatory scheme designed to limit beer consumption and thereby curb public intoxication or drunk driving. That sort of scheme would only be rational if the state also banned six packs, kegs, and other large-size offerings. The fact that customers may purchase 72-ounces of beer via six pack but not a 64-ounce growler of the same beer highlights the fundamental irrationality of this preposterous regulation.

When I was at Purdue, there was a ban on kegs in fraternity houses out of concern that the end of the night might result in a “finish off the keg” mentality and lead to excessive drinking. This is due to the typical hand-pump tap used to maintain pressure, which severely oxidizes the beer and causes it to go stale extremely quickly. Often a beer would taste terrible by the next night when using a hand pump. (This is not an issue on keg systems dispensed with CO2 or “beer gas”.) Instead, without kegs, we were forced to drink excessively via other means.

One can make an argument that a growler suffers the same issue. Growlers are really meant to be single-serving containers, or at most maybe split over two nights. The beer will go stale quickly if allowed to sit. Growlers aren’t filled with the same care to minimize oxidation as bottles or cans, and many growlers have trouble maintaining CO2 over more than a few days due to poor seals. Thus, you often drink a growler as quickly after purchasing it as you can to avoid it going stale or flat.

In addition, many growlers are “special release” beers, often higher in alcohol than typical. I often don’t like growlers for this exact reason. My wife doesn’t drink beer, and I tend to have trouble putting away 64 ounces of 8%+ double IPA in an evening on my own and getting up at the crack of dawn to feed children the next morning. For that reason, I actually love the 32-ounce growler as a format. It’s quite uncommon in the industry, however.

Six packs don’t have these issues. 22-oz bombers don’t have these issues. And kegs are clearly not intended for a single-serving. They’re either purchased for groups (using a hand pump tap) or for personal kegerators using CO2.

One 12-oz bottle from a 72-oz six pack won’t get you drunk, and the other 5 bottles can be easily stored for weeks or months. Drinking an entire 64 oz growler will get you drunk. And with the difficulty in storing a growler at all — much less a growler that’s already had a pint or two poured out of it, make it highly likely that it will be consumed in a single sitting.

Thus, while I don’t agree with the growler ban, I can see it passing a rational basis test.

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There’s No Such Thing As An “eBook Monopoly”

First things first… I’ve spent a lot of time criticizing Kevin Drum over the years. Suffice to say that we don’t see eye to eye, and a reliable way to generate content here has often been “wait for Drum to say something ridiculous, then flog him for it.” It’s a well I’ve gone back to from time to time when thirsty, I’ll say that much. That said, he recently was diagnosed with cancer. All politics and blogging aside, best of luck to him in his treatment and recovery. It may be uncommon on the blogosphere to recognize that our ideological opponents are actual human beings, but he is and so I wish him the best.

With the niceties out of the way, Kevin fired off on the recent hot button of Amazon and its market power. Specifically, people question the extent to which Amazon is a monopoly. That’s a much wider topic, but I see something here that is a wrinkle that needs to be highlighted. Kevin says:

In theory, this is a great opportunity for an innovative startup. Startup costs are modest since there’s no physical inventory to worry about. Publishers are eager for new entrants. Maybe a smart startup could appeal to consumers with a great new e-reader concept. Or a better recommendation engine. Who knows? There are loads of possibilities. The problem is that no startup can possibly compete with a huge incumbent that’s willing to sell e-books at a loss. There’s no VC on the planet willing to fund a trench war like that.

So Amazon really does have a monopoly position in this market that it sustains via predatory pricing and heavy-handed business practices—against publishers both big and small—that might make John D. Rockefeller blush.

…snip…

So sure, leave Amazon alone in most of its business lines. But in e-books? Nope. They’re a monopoly in every sense of the word, and they use predatory practices to stay that way. They may offer cheap books, but in the long run it’s vibrant competition that truly benefits consumers. Regulating Amazon would hardly solve all our e-book problems—far from it—but it would be a start.

Now, I know marketing dweebs always love to slice-and-dice marketing data, torturing it until it shows that they’re the market leader in the critical “males age 24-27 in the Pacific Northwest who own cats” segment. It’s a way to claim that you’re a winner. As long as you cast the net narrowly enough.

But you can’t do this with monopolies. The Kindle doesn’t compete in the eBook market. It competes in the book market.

Trying to suss out a monopoly in only a single segment of the market reminds me of a debate I had with an old neighbor about the XM/Sirius merger several years ago. He said it should be blocked as it would create a monopoly. I said that it’s not a monopoly, because the market for mobile entertainment is much wider than just satellite radio:

What’s wrong with a monopoly in satellite radio? After all, look back a mere 6 years, when there was no such thing as satellite radio. At the time, people functioned. The world wasn’t falling apart because there were no blues stations in BFE. People lived without satellite radio, and yet people didn’t even know they were missing it.

…snip…

Thus, for a satellite radio provider, they cannot be a true monopoly. First, they’re offering a product that didn’t even exist 6 years ago, and currently has such a tiny number of subscribers that it’s not in any way a necessity. Second, they’re competing not only against other satellite radio companies, but against terrestrial radio, internet radio, CD’s, and portable music players. If they don’t offer a product worth paying for, people won’t pay for it.

Amazon Kindle Paperwhite eBook
Amazon basically created the eBook market. Yes, there were eReaders prior to the Kindle, but they didn’t have a good distribution platform for books. Amazon was able to leverage their distribution model and really popularize the segment. They’ve continued to invest in the segment and thus have maintained absolutely crushing market share. They’ve even enabled completely new models for books, like the $2.99 price point that allows people to write and sell books that don’t fit the 200+ page model, and even a revival of the serial novel*.

But that doesn’t make them a monopolist. Yes, if you cast the net to ONLY eBooks, you might be able to make that claim. But eBooks are a substitute for physical books. If eBooks disappeared tomorrow, we’d all go right back to buying paperbacks and hardcovers. You simply cannot separate the eBook market from the wider book market.

Now, that gets harder to say when you see many books (like those mentioned Kindle Singles or serialized fiction) released only in the eBook format. I happen to be working on something that would fit into the Single format and something for which I would never get a “book deal” and don’t particularly want to self-publish.

But along those lines, you can’t blame Amazon for creating a new genre for publishing any more than you can blame SiriusXM for creating comedy stations where they can play George Carlin’s “Seven Words You Can’t Say On TV” uncensored even though you could never play that on their primary competitor, terrestrial radio. It still doesn’t make either a monopoly.

Monopoly is a word thrown around a lot, and despite where you stand on the validity of anti-trust law, it’s important to distinguish where the word is and is not valid. Someone who has carved out a dominant position in one niche of a much wider market–a market with many ready substitutes–is quite simply not a monopolist.
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Brad’s Beer Review: Alpine Brewing Company – Duet

Weekends tend to be a slow time for political blogs, so it’s a perfect time to get into another passion. So I’m happy to announce a new weekend off-topic feature here: Brad’s Beer Review.

As many of you already know, I’m a homebrewer and a beer geek. What’s a beer “geek”, you [probably don’t] ask, and how is it different from a beer snob? Well, it’s simple:

A beer geek cares what he drinks. A beer snob cares what you drink.

Alpine Brewing Company - Duet

Alpine Brewing Company – Duet


I’m a beer geek. I don’t care what you drink. Unlike the folks from the Washington Post, I’m not going to deride you for what you drink, whether it’s Bud Light or Smirnoff Ice.

That said, if you’re looking for a beer sherpa on the path to enlightenment, I’m happy to show you the way. So to start off this new feature, I decided to reach into the beer fridge for something a little special. In future instances, the feature may not be a beer, rather it may be a beer bar, brew pub, or craft beer centric restaurant. I travel quite a bit for work, so I’ll do my best to keep it varied. And it may not be a commercial beer. As a homebrewer, I might offer my own brews up from time to time (with recipe, of course).

Alpine Brewing Company is located in Alpine, CA, a tiny town well east of San Diego. They’re well known in the craft beer community, but even living in SoCal I didn’t get the chance to taste their wares until a few weeks ago. Mostly because Alpine CA is in the middle of freaking nowhere. They’re well known for their signature Double IPA, Pure Hoppiness. They didn’t have it available in bottles when a friend was in the area, so he brought me a few bottles of Duet, an IPA.

Duet is so named because of the use of Simcoe and Amarillo hops, and the first impression of the beer is the aroma. You can smell the Simcoe. Simcoe is well known as one of the key hops in another highly-touted beer, Pliny the Elder from Russian River. The Simcoe is offset by the Amarillo, which is known for a strong citrus aroma.

Visually, although my picture shows it a bit dark, the beer pours a nice pale gold. Great clarity.

On the tongue, this hits the mark. Any west-coast IPA should be hop-forward, an it is. Poor examples of the style are all hops, without any malt backbone to back it up. Duet has enough malt to give a great foundation for the hops, and let them shine. It’s got malt without being sweet (Dogfish Head, I’m looking at you!), and while it’s not quite as dry and crisp as I like my IPAs, it still makes me want more. You taste this beer and you know why everyone goes nuts over Alpine.

Then you come to the question in the craft beer world of drinkability. Which is really the question “does this taste like this beer will mess me up as much as it will mess me up?” On that metric, this beer is highly drinkable. The Alpine web site says this is a 7% ABV beer. Taste wise, I’d guess much lower. This beer carries zero alcohol warmth, and you’re left feeling like you could pound these away until you’ve forgotten that you’re at a brewery that’s closer (as the crow flies) to Mexico than it is to San Diego and you don’t have a ride home.

In short, I’m impressed by this beer. Alpine has absolutely nailed it. You’ll find as this feature continues that this is not all that common when it comes to me and beer. So if you can find some Alpine (you can’t… sorry.), buy it!

Idaho Gay Marriage Lawsuit Moot – City Backs Down

I’ve covered the Idaho “Hitching Post” gay marriage case. I started with a relatively in-depth look at the legal issues involved on Monday, and then covered some inconsistencies in the history of the Hitching Post’s religious designation yesterday.

Today, though, it has all been resolved. The Hitching Post’s recent change from performing civil marriages as well as religious marriages to performing ONLY Christian religious ceremonies, and explicitly forming themselves as a religious business 3 weeks ago, have now exempted them from the anti-discrimination ordinance.

From Boise State Public Radio:

Initially, the city said its anti-discrimination law did apply to the Hitching Post, since it is a commercial business. Earlier this week, Coeur d’Alene city attorney Mike Gridley sent a letter to the Knapps’ attorneys at the Alliance Defending Freedom saying the Hitching Post would have to become a not-for-profit to be exempt.

But Gridley said after further review, he determined the ordinance doesn’t specify non-profit or for-profit.

“After we’ve looked at this some more, we have come to the conclusion they would be exempt from our ordinance because they are a religious corporation,” Gridley explained.

Now, it’s partly incorrect to draw some links between this case and Hobby Lobby. That of course involved a federal law whereas this is a city ordinance, and that case was decided on the grounds of the federal RFRA, where the religious exemption is what protects the Hitching Post here. (That said, Idaho has an RFRA, and virtually everyone is in agreement here that forcing the ministers themselves to officiate the ceremony would violate it.)

But at the same time, there were a few things in that decision (and the precedent discussed in the decision) that are instructive.

The first is that Hobby Lobby held that a “closely held” corporation could have religious beliefs, in the sense that it was the direct expression of a very small-knit group of owners. While a publicly-traded corporation wouldn’t have the same protection, a corporation held by a small religious family is entitled to the same protections under RFRA that the owners themselves would be, because the corporation is not truly separable from them as owners.

The second is that under previous RFRA cases, generally any sincerely-held religious belief is taken at face value. The Court isn’t in the business of deciding what religious beliefs are “valid” and what religious beliefs aren’t. Thus, as long as the actions of the Hitching Post are consistent as a religious corporation, forcing them to offer services to same-sex engaged couples violates their religious freedom. Thus, from the Boise article again:

Leo Morales of the ACLU of Idaho said the exemption makes sense as long as the Hitching Post primarily performs religious ceremonies.

“However, if they do non-religious ceremonies as well, they would be violating the anti-discrimination ordinance,” Morales said. “It’s the religious activity that’s being protected.”

So while some of the red-meat Conservatives were hoping that this would be the wedge that destroys gay marriage, I think everyone’s out of the water.

And to the Knapps, while I profoundly disagree with your belief, and sincerely hope that you come to my side of the aisle on this one, I am glad that you won’t be going to prison or subject to fines. As a libertarian, I think you’re wrong, but as you haven’t taken anyone’s rights away by failing to offer them services, I’m not in the camp that wants to throw you in a cage for it.

H/T: Reason

That Idaho Gay Marriage Lawsuit? It Just Got Murky.

On Monday, I posted about the Idaho pastors who filed a lawsuit as Couer d’Alene’s anti-discrimination ordinance threatened them with large fines and possible jail time for a refusal to perform same-sex weddings at their chapel, The Hitching Post.

As background, I posted excerpts from the Hitching Post’s lawsuit regarding their employee policy:

Then, the Employee Policy specifies the following Rules and Regulations:
• Only the Hitching Post owners and employees may perform wedding ceremonies at the Hitching Post Chapel and other locations scheduled by the Hitching Post. Outside ministers may not perform wedding ceremonies at the Hitching Post Chapel or other locations scheduled by the Hitching Post. Brides and grooms may not invite outside ministers to perform such ceremonies. Outside ministers may come and stand alongside the Hitching Post owner or employee who performs the wedding ceremony. But only the Hitching Post owner or employee may perform the ceremony.
..snip..
• In accordance with the religious beliefs and ministerial vows of the Hitching Post owners, Hitching Post owners and employees will perform ceremonies for those of different faiths and religious beliefs (so long as those marriage ceremonies are consistent with the beliefs set forth herein) because marriage is a common grace and creational gift bestowed by God upon all humans for the benefit of human society.

And my analysis, with a bit of added emphasis which will soon be clear:

Is the Hitching Post a religious entity, or is it a non-religious business? I have a feeling it’s going to come down to under what circumstances they’ve turned away traditional couples based on other violations of their Christian beliefs. If they have a history of turning away open atheists, or turning away Muslims, or perhaps frowning on Christian/Muslim unions, they may have a leg to stand on. In that case, they can show that they’ve turned away opposite-sex couples (and their dollars) based upon the sincere religious nature of their business.

But if they’ve got a history of taking money from pretty much any opposite-sex couple that walks through the door and it’s only the gays that they turn away, I think they may be considered a public accommodation. Even then, they have an extrajudicial way out. If they do allow same-sex couples to bring their own officiant, they would thereby be excluded from having to do the specific act (solemnizing the wedding before God), which I think many courts would view as not substantially burdening their Free Exercise.

So, what’s the history of the Hitching Post? Well, that’s where it gets murky. Walter Olson of Overlawyered tipped me off on this one.

You see, the lawsuit pointed out all the ways in which the Hitching Post was a deeply religious business, using their ceremony as ministry to bring couples to the Lord.

Only, the Operating Agreement was signed on October 6, 2014. It was submitted as an exhibit to the lawsuit here (scroll down to page 91). Now, it’s one thing to find a document with a date on it… After all, for all we know, the previous Operating Agreement might have been substantially the same as this one.

But Google Cache doesn’t lie. Jeremy Hooper from Good As You points out that as recently as Oct 9, the Hitching Post web site said that they offer marriages of both the religious and civil variety, and even of ceremonies of other faiths. (Screen shots available at that post).

Some “ministry”.

Now, I still don’t doubt that the Knapps have sincere religious beliefs against gay marriage. But it certainly seems that the Hitching Post, as a legal entity, just seems to have found God recently.

And it seems to me that the ADF is manufacturing a victim of the Couer d’Alene ordinance.

I’m finding my sympathy level for all parties involved is beginning to wane.

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