Regulators Of Alcoholic Beverages Can Be Found Individually Liable When Interfering With Constitutional Right To Free Commercial Speech

Law Offices of John P. Connell, P.C.: Free speech prevailed for Maryland’s Flying Dog Brewery in its recent six-year battle with the Michigan Liquor Control Commission. Back in 2009 when the brewery released it’s new Belgian-style IPA called “Raging Bitch,” the Michigan Liquor Control Commission quickly banned it from being sold in the state. The Commission considered “Raging Bitch” to be “detrimental to the health, safety and welfare of the general public,” because the label depicted a wild dog with human female genitalia and semblances of human female breasts. As Michigan is a “label registration state,” unlike Massachusetts, wherein all alcoholic beverage labels must be registered before being sold in the state, the Commission’s decision barred the “Raging Bitch” label from being sold within Michigan. You can visit the Flying Dog Brewery website here to see the label image.

Flying Dog Brewery than filed suit against the individual members of the Michigan Liquor Control Commission seeking money damages pursuant to 42 U.S.C. § 1983, a statute which authorizes damages against state and municipal employees individually when they violate the Constitutional Rights of an individual or business when allegedly acting under the “color of state law.” While 1983 lawsuits against officials in their individual capacities are common against police officers for allegedly violating a suspects rights, this case was one of first impression for the Federal District Court in Michigan, which dismissed the lawsuit on the legal principal that alcoholic beverage regulators enjoy “quasi-judicial immunity” when arriving at such decisions as to whether or not register a particular beer label.

Flying Dog Brewery, however, appealed and the Sixth Circuit Court of Appeals in Flying Dog Brewery, LLP vs. Michigan Liquor Control Commission, et al. (which can be viewed here), held that not only could a jury find that prohibiting the label “Raging Bitch” was an unconstitutional infringement on the “commercial free speech” of Flying Dog Brewery, but the individual commissioners on the Michigan Liquor Control Commission could be held individually liable for money damages under Section 1983 because the act of approving labels was not considered by the Sixth Circuit to be the type of conduct wherein state officials should be immune from liability.

The decision in Flying Dog Brewery, LLP vs. Michigan Liquor Control Commission, et al. was expressly limited to the facts of the dispute before the Court and expressly did not address whether other types of decisions routinely made by liquor licensing board members, such as suspensions and revocations of licenses, could be subject to the same potential liability. This decision is worth noting for Massachusetts breweries, distilleries and wineries, as many alcoholic beverage manufacturers compete fiercely in the world of “edgy” label design, and to extending their sales into so-called “label registration” states wherein an existing label may not pass local muster.

John P. Connell, Esq.
© Law Offices Of John P. Connell, P.C. 2016

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