Sarasota Wine Market, LLC et al v. Greitens et al

Filing 45

OPINION MEMORANDUM AND ORDER IT IS HERBY ORDERED that the Defendants Motion to Dismiss Plaintiffs Amended Complaint [Doc. No. 37] is GRANTED.A separate Order of Dismissal in accordance with this Opinion, Memorandum and Order is entered this same date. 37 Signed by District Judge Henry Edward Autrey on 3/29/19. (CLA)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SARASOTA WINE MARKET, LLC
d/b/a MAGNUM WINE AND
TASTINGS, et al.
Plaintiffs,
v.
MICHAEL L. PARSON, et al.
Defendants.

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CASE NO. 4:17CV2792 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiffs’
Amended Complaint [Doc. No. 37] under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Plaintiffs oppose the Motion. The Motion has been fully
briefed. For the reasons set forth below, Defendants’ Motion is GRANTED.
Facts and Background
Plaintiffs brought this case pursuant to 42 U.S.C. § 1983, challenging the
constitutionality of Missouri’s Liquor Control Law, Chapter 311 RSMo (“Liquor
Control Law”).
Like many states, Missouri “funnels liquor sales through a tier system,
separating the distribution market into discrete levels.” Southern Wine and Spirits

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of Am., Inc. v. Division of Alc. & Tobacco Control, 731 F.3d 799, 802 (8th Cir.
2013). The first tier “consists of producers, such as brewers, distillers, and
winemakers.” Id. The second tier “is comprised of solicitors, who acquire alcohol
from producers and sell it ‘to, by or through’ wholesalers.” Id. The third tier “is
made up of wholesalers, who purchase alcohol from producers and solicitors and
sell it to retailers.” Id. The fourth tier – and the tier at issue in this case – “consists
of retailers, who sell alcohol to consumers.” Id. This multi-tiered system for
controlling the distribution and sale of alcohol to Missouri residents is permitted by
the Twenty-First Amendment to the United States Constitution, which grants states
“virtually complete control over whether to permit importation or sale of liquor
and how to structure the liquor distribution system.” Id. (quoting California Retail
Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S.97, 110 (1980)).
Missouri implements its multi-tier system through its Liquor Control Law.
The Liquor Control Law prohibits “any person, firm, partnership, or corporation”
from selling alcoholic beverages in Missouri “without taking a license.” §311.050
RSMo. To obtain a license, an applicant must demonstrate “good moral character”
and establish that he/she is “a qualified legal voter and taxpaying citizen of the
county, town, city or village” to be served. § 311.060.1 RSMo. These requirements
apply to the managing officer of any corporation seeking a license. Id.

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Defendants previously filed a Motion to Dismiss Plaintiffs’ Complaint,
which was granted for lack of standing under Rule 12(b)(1). Plaintiffs filed their
Amended Complaint, followed by Defendants’ filing of the instant Motion to
Dismiss.
Plaintiffs’ Amended Complaint alleges the following: 1
Plaintiff Michael Schlueter is a Missouri resident who would purchase wine
from out-of-state retailers and have it shipped to his Missouri home, if Missouri
law permitted him to do so. Plaintiff Terrence French us a Missouri Resident who
has been refused sales of wine by out-of-state retailers due to Missouri’s Liquor
Control Law that bans out-of-state sales, shipments, and delivery of wine from outof-state sources.
Plaintiff Sarasota Wine Market, LLC d/b/a Magnum Wine and Tastings
(“Magnum Wine”) is a Florida Limited Liability Company that operates a retail
wine store in Sarasota, Florida. Magnum Wine has received requests that it sell
and ship wine to Missouri, but is unable to do so legally. It intends to sell and ship
wines directly to consumers in Missouri if the laws prohibiting such sales and
shipments are removed or declared unconstitutional. Plaintiff Heath Cordes is a
citizen of Florida who works as a professional wine consultant, advisor, and
merchant. Cordes owns and operates Magnum Wine. Plaintiffs intend to pay all
1

The recitation of facts is taken from Plaintiffs’ Amended Complaint and is set forth for the
purposes of the pending motion to dismiss.

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taxes due on interstate wine sales and shipments, and comply with all other nondiscriminatory state regulations, including obtaining licenses.
Defendants Missouri Governor Michael L. Parson, Missouri Attorney
General Eric Schmitt2, and Acting Supervisor of the Missouri Department of
Public Safety, Division of Alcohol & Tobacco Control Keith Hendrickson are all
sued in their official capacities.
In the State of Missouri, a resident wine retailer can obtain a license from
Defendants which allows it to sell, deliver, and ship by common carrier directly to
Missouri consumers any wine that it has in its inventory. A Missouri wine retailer
may obtain wine for resale from distributors, auction houses and private
collections. The Defendants will issue such an off-premises retail license only to
wine retailers located in the State of Missouri. Magnum Wine is not located in
Missouri, is not eligible for a Missouri off-premises license, and is prohibited by
law from selling, delivering or shipping wine from its inventory directly to
consumers in Missouri. No other Missouri license is available to Magnum Wine
and Tastings that would allow it to sell, deliver, and ship wine from its inventory to
consumers in Missouri. It would obtain such a license if one were available.

2

Effective January 3, 2019, Eric Schmitt is the Attorney General of Missouri. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Eric Schmitt is substituted for former Attorney
General Joshua D. Hawley as defendant in this suit.

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Plaintiff Schlueter has contacted several out-of-state retailers either on the
Internet or by phone in order to buy wines he cannot find in Missouri. These
retailers include Magnum Wine, The Wine Library in New Jersey, and Federal
Wine & Spirits in Boston, Massachusetts. All of these retailers refused to sell and
ship their wines to Schlueter because of Missouri law. Some wines that Schlueter
wants to buy are not available in retail stores in Missouri but are available from
retail stores in other states. Plaintiff French has also attempted to purchase wine
from out-of-state wine retailers which claims he cannot obtain either in his
hometown or in Missouri and has been denied these purchases.
Mangum Wine has been contacted by Schlueter who has attempted to buy
wine and have it shipped to him in Missouri. Mangum has refused to complete this
order due to Missouri's ban on out-of-state retail sales, shipments, and deliveries.
Magnum Wine has lost profit of its sale of wine to Schlueter and other Missouri
customers. Magnum Wine would obtain a license to sell, ship and deliver its wine
directly to consumers in the State of Missouri if one were available.
In the course of his business, Plaintiff Cordes develops personal
relationships with many of his customers, makes special wine purchases for them,
consults with them about wine in person, by telephone and by Internet, and sells
and delivers wine to them. Some of these customers live part of the year in Florida
and part of the year in Missouri. Cordes has received requests from his customers

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to send wine to residents of Missouri as gifts but was unable to ship the specifically
requested wines because the laws of Missouri prevent him from doing so. Cordes
wants to practice his profession as a wine merchant in Missouri by consulting with,
obtaining wines for, and delivering wines to Missouri residents, but is prevented
from doing so by Missouri law. He has suffered economic harm as a result. Mr.
Cordes has not applied to Missouri officials for a retail license because it would be
futile to do so since he is not a resident of Missouri and residency is required for a
retail wine dealer permit. If a license were available to Cordes on terms equivalent
to those for Missouri citizens, he would obtain it.
Plaintiffs’ Complaint alleges that the portions of Missouri’s Liquor Control
Law that allow in-state retailers to ship wine to Missouri consumers while
prohibiting out-of-state retailers from doing the same is unconstitutional for two
reasons:
First, Plaintiffs contend that the disparate treatment between in-state and outof-state retailers violates the Commerce Clause because it discriminates against
interstate commerce and protecting the economic interest of local businesses by
shielding them from competition.
Second, Plaintiffs claim that the disparate treatment between residents and
nonresidents violates the Privileges and Immunities Clause of Article IV of the
United States Constitution because Missouri bans wine sales and deliveries by out-

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of-state merchants and prohibits the issuance of licenses to nonresidents, thereby
denying Cordes the privilege to engage in his occupation in the state upon the same
terms as Missouri citizens.
Plaintiffs seek declaratory and injunctive relief in this matter.
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of standing and Rule (12)(b)(6) for failure to state a
claim upon which relief may be granted. For their 12(b)(6) motion, Defendants
contend that the constitutional validity of Missouri’s multi-tiered approach to
regulating liquor distribution and sale has been upheld by the Eighth Circuit Court
of Appeals in Southern Wine, 731 F.3d 799.
Standard
“[I]f a plaintiff lacks standing, the district court has no subject matter
jurisdiction.” Fabisch v. University of Minn., 304 F.3d 797, 801 (8th Cir. 2002).
Therefore, motions to dismiss for lack of standing fall under the purview of
Rule 12(b)(1), which permits a party to move to dismiss a complaint for
lack of subject matter jurisdiction. Id. “Motions to dismiss for lack of subjectmatter jurisdiction can be decided in three ways: at the pleading stage, like a Rule
12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on
disputed facts.” Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008). The parties do
not rely on matters outside the pleadings, therefore the Court reviews Defendant’s

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motion as a “facial attack” on jurisdiction. In a facial attack, “the court restricts
itself to the face of the pleadings, and the non-moving party receives the same
protections as it would defending against a motion under Rule 12(b)(6).” Carlsen
v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016).
Under Fed.R.Civ.P. 12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be granted.” To survive a Rule
12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A pleading that merely pleads labels
and conclusions or a formulaic recitation of the elements of a cause of action, or
naked assertions devoid of further factual enhancement will not suffice. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
A complaint must be liberally construed in the light most favorable to the
plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2006). Under
Rule 12(b)(6), the Court must accept plaintiff's factual allegations as true and grant
all reasonable inferences in the plaintiff's favor. Phipps v. FDIC, 417 F.3d 1006,
1010 (8th Cir. 2005). Where the allegations show on the face of the complaint
there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate. Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008).
Discussion

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A. Standing
“Article III standing is a threshold question in every federal court case.”
United States v. One Lincoln Navigator 1998, 328 F .3d 1011, 1013 (8th Cir.
2003). The “irreducible constitutional minimum” of standing consists of three
elements. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Id. The Supreme Court has explained that the injury in fact
requirement means showing “an invasion of a legally protected interest which is
(a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (citations and quotation omitted).
In their Amended Complaint, Plaintiffs adequately plead standing. Schlueter
and French each pled that they have tried to order wine for delivery from out-ofstate retailers and been denied. They have also pled that they can only obtain their
desired wines from out-of-state retailers. “[C]ognizable injury from
unconstitutional discrimination against interstate commerce does not stop at
members of the class against whom a State ultimately discriminates, and customers
of that class may also be injured . . .” Gen. Motors Corp. v. Tracy, 519 U.S. 278,
286 (1997). As they have pled that the wines they seek are unavailable for

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purchase in Missouri, the only way for Schlueter and French to engage in the
interstate commerce they seek includes added costs, or imminent economic injury.
Schlueter and French have standing to bring their Commerce Clause claim.
Magnum Wine has alleged lost profits that resulted from their legal duty to decline
orders where the buyer requested wine be shipped to Missouri residents. Magnum
Wine has standing to bring this action. Likewise, Cordes has adequately pled that
he has lost sales a result of their inability to ship wine directly to Missouri
residents. Plaintiffs’ Amended Complaint establishes requisite standing to bring
the instant case.
B. Failure to State a Claim
Next, Defendants argue that Plaintiffs fail to state a claim upon which relief
can be granted. Plaintiffs defend their positions, arguing that, at the very least, the
constitutionality of the Liquor Control Law as applied to out-of-state retailers
cannot be decided on a Rule 12(b)(6) motion. The Court disagrees, and finds that
precedents set by the Supreme Court in Granholm v. Heald, 544 U.S. 460 and by
the Eighth Circuit in Southern Wine, 731 F.3d 799 bar Plaintiffs’ claims for relief.
1. Commerce Clause
Defendants argue that the Eighth Circuit “affirmed the validity of Missouri’s
multi-tier approach to regulating the distribution and sale of alcoholic beverages”
in Southern Wine, foreclosing Plaintiff’s claims. In Southern Wine, an out-of-state

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wholesaler claimed that Missouri’s statute requiring Missouri residency for
wholesaler corporations violated the commerce clause and equal protection
clause.3 The issue before the Eighth Circuit, then, involved the relationship
between the Commerce Clause and the Twenty-first Amendment. The Commerce
Clause generally prohibits state laws that “mandate differential treatment of instate and out-of-state economic interests that benefits the former and burdens the
latter.” Granholm v. Heald, 544 U.S. 460, 472 (2005) (quoting Oregon Waste
Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 99
(1994)). The Twenty-first Amendment, however, provides that “[t]he
transportation or importation into any State, Territory, or possession of the United
States for delivery or use therein of intoxicating liquors, in violation of the laws
thereof, is hereby prohibited,” U.S. Const. amend. XXI § 2, affording states some
“prerogatives particular to the regulation of alcohol,” Southern Wine, 731 F.3d at
804. In determining the appropriate relationship between the Twenty-first
Amendment and the Commerce Clause in Southern Wine, the Eighth Circuit relied
on the Supreme Court’s decision in Granholm v. Heald, 544 U.S. 460.
Granholm addressed two state laws that essentially allowed in-state wineries
to ship wine directly to in-state residents, but prohibited out-of-state wineries from
3

The district court also rejected the plaintiffs’ arguments that the Missouri statute violated the
Privileges and Immunities Clause. In doing so, the district court relied on the same legal
conclusions reached in its analysis of the Commerce Clause claim. The Privileges and
Immunities claim was not addressed on appeal.

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doing the same. In holding that the state laws were unconstitutional, the Supreme
Court emphasized that the Twenty-first Amendment does not supersede the
Commerce Clause. Id. at 486. However, Granholm also upheld the
constitutionality of the states’ tiered liquor distribution systems under the Twentyfirst Amendment. Id. at 488. Therefore, the Supreme Court limited the prohibition
on interstate discrimination to the first tier of the liquor distribution system:
producers and products. As noted by the Eighth Circuit, the second, narrower tier
of wholesalers was specifically mentioned as exempt from Granholm’s holding:
The three-tier system is “unquestionably legitimate,” Granholm, 544
U.S. at 489, 125 S.Ct. 1885 (internal quotation omitted), and that
system includes the “licensed in-state wholesaler.” Id. (quoting North
Dakota, 495 U.S. at 447, 110 S.Ct. 1986 (Scalia, J., concurring in the
judgment)).
Southern Wine, 731 F.3d at 809.
Moreover, the Supreme Court held that “State policies are protected under
the Twenty-first Amendment when they treat liquor produced out of state the same
as its domestic equivalent.” Granholm, 544 U.S. at 489 (emphasis added).
Accordingly, Southern Wine mandates “state policies that define the structure of
the liquor distribution system while giving equal treatment to in-state and out-ofstate liquor products and producers . . . are ‘protected’ against constitutional
challenges based on the Commerce Clause.” 731 F.3d at 809.

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Plaintiffs argue that Southern Wine is inapposite, and that dismissal on the
pleadings in this case is improper because the Eighth Circuit would have to decide
on the facts whether to extend its holding in Southern Wine to retailers. However,
the Eighth Circuit expressly rejected that argument in Southern Wine:
Southern Wine contends that even after Granholm, the
constitutionality of residency requirements in the wholesale tier
depends on a case-specific balancing of interests under the Commerce
Clause and the Twenty-first Amendment. Insofar as Granholm
imported a balancing approach to regulations of the three-tier system,
however, it drew a bright line between the producer tier and the rest of
the system. The more natural reading of Granholm is the Second
Circuit's: “Because New York's three-tier system treats in-state and
out-of-state liquor the same, and does not discriminate against out-ofstate products or producers, we need not analyze the regulation further
under Commerce Clause principles.” Arnold's Wines, 571 F.3d at 191.
731 F.3d at 810. Plaintiffs do not allege and cannot show that the challenged
portions of Missouri’s Liquor Control Law provide differential treatment to instate and out-of-state products and producers. Because Plaintiffs’ claim concerns
only the retailer tier of Missouri’s liquor control system, it is foreclosed by the
“bright line” between the producer tier and the rest of the system described in
Southern Wine.
Plaintiffs argue that the Eighth Circuit’s statement in Southern Wine that
“[Granholm] drew a bright line between the producer tier and the rest of the
system” is merely dictum that was unnecessary to the result in Southern Wine and
thus should not be treated as binding authority. This argument is not well taken.

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In Southern Wine, the Eighth Circuit provided a wealth of reasoning that
distinguishes discrimination against products and producers from discrimination in
the other tiers of the liquor distribution system. See Id. at 809-10.
The four-tier system is a legitimate exercise of Missouri’s power under the
Twenty-first Amendment to “maintain an effective and uniform system for
controlling liquor by regulating its transportation, importation, and use,” including
the ability to “funnel sales through the [multi]-tier system.” Granholm, 544 U.S. at
484. While the state laws in Granholm failed to pass constitutional muster because
they discriminatorily allowed only in-state producers to sidestep the tiered
regulatory systems, the Missouri statutes in question require that all alcohol sold
directly to consumers in Missouri by retailers pass through Missouri’s four-tier
regulatory system “funnel.” To allow out-of-state retailers to ship directly to
Missouri residents would not only burden in-state retailers, who would have to
operate within the four-tier system while out-of-state retailers could circumvent the
Missouri regulatory system entirely, it would also violate the Twenty-first
Amendment by undermining Missouri’s “unquestionably legitimate” system. Cf.
Brooks v. Vassar, 462 F.3d 341, 352 (4th Cir. 2006) (opinion of Niemeyer, J.)
(“[A]n argument that compares the status of an in-state retailer with an out-of-state
retailer—or that compares the status of any other in-state entity under the three-tier
system with its out-of-state counterpart—is nothing different than an argument

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challenging the three-tier system itself.... [T]his argument is foreclosed by the
Twenty-first Amendment and the Supreme Court's decision in Granholm[.]”).
The challenged statutes do not result in discrimination between in-state and
out-of-state producers or products, and they are legitimate exercises of Missouri’s
authority under the Twenty-first Amendment. Relying on the law of this Circuit,
therefore, the Amended Complaint fails to state a Commerce Clause claim upon
which relief can be granted.
2. Privileges and Immunities Clause
Plaintiff Cordes is a “professional wine consultant, advisor and merchant”
who resides in and is a citizen of Florida. Cordes states that because he is unable
to obtain a Missouri retail wine dealer license as a non-Missouri resident, he is
prevented from practicing his profession of “consulting with, obtaining wines for,
and deliver[ing] wines to Missouri residents.” Cordes claims that the Liquor
Control Law thereby violates the United States Constitution’s Article IV Privileges
and Immunities Clause by “den[ying] Mr. Cordes the privilege to engage in his
occupation in the state upon the same terms as Missouri citizens.”
Under the Privileges and Immunities Clause, “[t]he Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the several States.”
U.S. Const., Art. IV, § 2, cl. 1. The Supreme Court has stated that:
The object of the Privileges and Immunities Clause is to strongly
constitute the citizens of the United States as one people, by placing

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the citizens of each State upon the same footing with citizens of other
States, so far as the advantages resulting from citizenship in those
States are concerned. This does not mean, we have cautioned, that
state citizenship or residency may never be used by a State to
distinguish among persons.
McBurney v. Young, 569 U.S. 221, 226 (2013) (internal citations and quotations
omitted). Whether differential treatment of out-of-state residents violates the
Privileges and Immunities Clause involves a two-part inquiry: (1) whether the
state's law discriminates against out-of-state residents with regard to a privilege or
immunity protected by the Clause, and (2) if so, whether sufficient justification
exists for the discrimination. Minnesota ex rel. Hatch v. Hoeven, 456 F.3d 826,
834 (8th Cir. 2006) (citing United Bldg. & Constr. Trades Council of Camden
County & Vicinity v. Mayor & Council of the City of Camden, 465 U.S. 208, 218,
221–23 (1984)). Generally, the privilege of engaging in a trade, business or
occupation is protected by the Privileges and Immunities Clause. McBurney, 569
U.S. at 227. However, the privilege of engaging in the occupation of selling
alcohol is not protected by the Privileges and Immunities Clause, due to the
Twenty-first Amendment’s “broad grant of power to the states . . . to implement
[multi]-tier liquor distribution systems which disparately affect non-resident
wholesalers and retailers.” Southern Wine, 2012 WL 1934408, slip op at *5
(W.D.Mo. May 29, 2012), aff'd, 731 F.3d 799 (8th Cir. 2013) (citing Steamers
Service Co. v. Wright, 505 S.W.2d 65, 68 (Mo.1974) (“the liquor business does not

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stand upon the same plane, in the eyes of the law, with other commercial
occupations ... and is thereby separated or removed from the natural rights,
privileges and immunities of the citizen.”)).
Because Cordes’ specific occupation is subject to limitations imposed by the
Twenty-first Amendment, his right to pursue it across state lines is not protected by
the Privileges and Immunities Clause. Therefore, the court does not reach the
“sufficient justification” prong of the two-part inquiry. Minnesota ex rel. Hatch,
456 F.3d at 834. Accordingly, the Amended Complaint fails to state a Privileges
and Immunities Clause claim.
Conclusion
For the reasons stated above, Plaintiffs’ Amended Complaint fails to state a
claim upon which relief could be granted.

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Accordingly,
IT IS HERBY ORDERED that the Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint [Doc. No. 37] is GRANTED.
A separate Order of Dismissal in accordance with this Opinion,
Memorandum and Order is entered this same date.
Dated this 29thth day of March, 2019.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE