For all you attorneys out there

[Newbeerguy]

I am not looking for any legal advice, but I was reading up on some of Ohio's Liquor Laws and this struck me as insane....

4303.02 A-1 permit.
Permit A-1 may be issued to a manufacturer to manufacture beer and sell beer products in bottles or containers for home use and to retail and wholesale permit holders under rules promulgated by the division of liquor control. The fee for this permit is three thousand nine hundred six dollars for each plant during the year covered by the permit.

Effective Date: 09-26-2003

Pretty cut and dry, if you manufacture beer and sell it, you need to pay 3,906 per year for the permit......but this is what is confusing me...

4303.37 Prohibited acts.
No person shall violate sections 4303.01 to 4303.37, inclusive, of the Revised Code, for which no penalty is provided.

Effective Date: 10-04-1955

To me it basically says, you have to follow the Code, but if you don't there isn't a penalty?

Here is a link to the ORC
http://codes.ohio.gov/orc/4303

Anyone willing to shed some light on this for me?

 

[VTBrewer]

There is no sentencing guideline provided. ie: The judge can do what he or she sees fit. It does not say there is no penalty, it is simply absent of "minimum $200 fine to maximum $10000 fine and or 30 days incarceration". As long as the 8th amendment isn't violated, assuming this is a criminal rather than civil proceeding, the penalty (sentence) could be anything.

That being said....I don't think many of us sell our beer.

 

[tunoffun]

I read it as a catch-all for any violation not explicity connected with a penalty. If you read down to 4303.99, you'll see that any violation of this section (4303.37) carries a 25-50 bone fine. Only a few violations merit fines & penalties above this, which are individually addressed.

I'm not a lawyer, but I'd guess this language is used to make the document easier to maintain throughout the course of revisions. You can add further rules/regulations without having to add a corresponding penalty entry so long as it's not a serious infraction.

Or maybe I'm just drunk.

 

[HalfPint]

Perhaps that's how Drew Carey used to do it when he brewed in Cleveland.

 

[user 30639]

I hate to out myself as an attorney...

I'm not licensed in Ohio, so I'm only basing this off a really quick read of the link.

4303.36 Fines for violations.

Any person who is subject to Chapter 4301., 4303., or 4307. of the Revised Code, in the transportation, possession, or sale of wine or mixed beverages subject to the taxes imposed by section 4301.43 and, if applicable, section 4301.432 of the Revised Code, and who violates any provision of any of those chapters or any lawful rule promulgated by the tax commissioner under any provision of any of those chapters, for the violation of which no penalty is otherwise provided, shall be fined as provided in division (B) of section 4303.99 of the Revised Code.

4303.99 Penalty.

(A) Whoever violates section 4303.28 of the Revised Code shall be fined not less than one thousand nor more than twenty-five hundred dollars or imprisoned not less than six months nor more than one year.

(B) Whoever violates section 4303.36 of the Revised Code shall be fined not less than twenty-five nor more than one hundred dollars.

(C) Whoever violates section 4303.37 of the Revised Code shall be fined not less than twenty-five nor more than fifty dollars.

(D) Whoever violates division (B) of section 4303.202 or division (C) of section 4303.208 of the Revised Code is guilty of a misdemeanor of the fourth degree.

And I've never heard of any type of violations where the Judge can assess a penalty of "anything." If we don't do that kind of crazy **** in Texas, no way it's done anywhere else.

 

[Newbeerguy]

There is no sentencing guideline provided. ie: The judge can do what he or she sees fit. It does not say there is no penalty, it is simply absent of "minimum $200 fine to maximum $10000 fine and or 30 days incarceration". As long as the 8th amendment isn't violated, assuming this is a criminal rather than civil proceeding, the penalty (sentence) could be anything.

That being said....I don't think many of us sell our beer.

I wonder if there is some sort of precedence that the judge would have to follow. I mean imagine one person getting charged and paying a 100 dollar fine, then another person getting charged and paying a 10,000 dollar fine. Hardly seems fair.

Not that I plan on selling any homebrew, but I just couldn't believe that it didn't include any specific penatly.

 

[Newbeerguy]

I hate to out myself as an attorney...

I'm not licensed in Ohio, so I'm only basing this off a really quick read of the link.





And I've never heard of any type of violations where the Judge can assess a penalty of "anything." If we don't do that kind of crazy **** in Texas, no way it's done anywhere else.

Don't worry I won't hold it against you

Yes I did read this too:

4303.36 Fines for violations.

Any person who is subject to Chapter 4301., 4303., or 4307. of the Revised Code, in the transportation, possession, or sale of wine or mixed beverages subject to the taxes imposed by section 4301.43 and, if applicable, section 4301.432 of the Revised Code, and who violates any provision of any of those chapters or any lawful rule promulgated by the tax commissioner under any provision of any of those chapters, for the violation of which no penalty is otherwise provided, shall be fined as provided in division (B) of section 4303.99 of the Revised Code.

But I also noticed that deals with transportation, possession, or sale of wine or mixed beverages, not manufacture of beer. From what I read the ORC clearly states the differnce between wine/mixed beverages and beer (Hell you can get your wine manufacturing permit for 75 dollars. Alot less than the 3,906 dollars for a beer manufacture permit...go figure)

 

[BigEd]

I'm not a lawyer but none of that means a thing if you don't have Federal licensing first. Short answer is you can't sell homebrew, only commercially produced beer. Those state laws are only going to apply if you are a commercial brewery.

 

[Newbeerguy]

I'm not a lawyer but none of that means a thing if you don't have Federal licensing first. Short answer is you can't sell homebrew, only commercially produced beer. Those state laws are only going to apply if you are a commercial brewery.

That's what I am getting at. What is stopping a commercial brewery in Ohio from not paying the state license?

 

[ReverseApacheMaster]

That's what I am getting at. What is stopping a commercial brewery in Ohio from not paying the state license?

If you look at this section:

4303.36 Fines for violations.

Any person who is subject to Chapter 4301., 4303., or 4307. of the Revised Code, in the transportation, possession, or sale of wine or mixed beverages subject to the taxes imposed by section 4301.43 and, if applicable, section 4301.432 of the Revised Code, and who violates any provision of any of those chapters or any lawful rule promulgated by the tax commissioner under any provision of any of those chapters, for the violation of which no penalty is otherwise provided, shall be fined as provided in division (B) of section 4303.99 of the Revised Code.

Effective Date: 09-26-1996

You can see that when a specific penalty is not attributed to a section of the code in the listed chapters the code refers you to section 4303.99. Basically the code is set up so that the legislature can define specific penalties for specific violations but absent those specifics it falls in the catch all provision above and the penalty section 4303.99 will apply.

You do make a good argument about how it is written but a court is far more likely to assume beer production/sales are included than not. You're reading it much more literally and narrow than a court is likely to.

I am also not licensed in OH and I am only a mere law student, so take that as a personal opinion on how I read the code.