Hmmm... (unimportant) legal question

[woozy]

Has the Latest debates to get the Alabama homebrewing laws change not shown that sometimes laws actually do not make sense

**SOMEtimes****?!?!?!?

I can see someone that was opposed to this bill make the argument that mead made from unpasturised honey could lead to botulism, if the guy(s) argued enough it might have been the easy fix to get the bill past to say "ok then, you can make it from anything but honey" and therefore the specific wording of the section was changed to reflect that intent.

I'm thinking that it's more likely that making it from honey or straight sugar was more like distilling and moonshine in the eyes of those living with the memory of the shadow of prohibition. They're willing to make exception beer and fruit wine where the alcohol is a subproduct but when you mess with the sugar directly... ooh, scary.

Or maybe now after creamygoodnesses post, maybe they wrote the "only wine made from fruit" clause first and their intent was for "natural" wine rather than "illicit" wines of dubious nature ("this? this is my grandmother's old recipe for corn, rye, and ethanol wine"). Later they probably came up with the official definition and never realized in was in contradiction to the way the clause was written.

If so, it's possible that Zuljin is right that mead is "legal" in the sense that no-one intended it to not be legal and no-one ever noticed or interpreted it to be illegal.

But however it came about, as the law is written, mead is verbitten.

 

[motobrewer]

All these words said, and it's still legal.

I can agree that the law could be worded better, but not that it's worded to make home made mead illegal.

I guess the good thing about being from Texas is you can always plead stupidity. And it will almost always be valid.

 

[ronsky]

Sec. 109.21. HOME PRODUCTION OF WINE, ALE, MALT LIQUOR, OR BEER.
(a) The head of a family or an unmarried adult may produce for the use of his family or himself....

So... if I go visit a friend in Texas (stop laughing... I could totally have a friend) and they serve me a homebrew stout with a shot of whiskey to make a Boiler Maker, has he been in violation of the law?

Bigger point, and I bet one that we are all guilty of is the "for the use of his family or himself..."

So, yes if you drink it he is in violation (in the strictest interpretation of the code) since you are not the head of the household or a family member.

 

[Zuljin]

**SOMEtimes****?!?!?!?


I'm thinking that it's more likely that making it from honey or straight sugar was more like distilling and moonshine in the eyes of those living with the memory of the shadow of prohibition. They're willing to make exception beer and fruit wine where the alcohol is a subproduct but when you mess with the sugar directly... ooh, scary.

Or maybe now after creamygoodnesses post, maybe they wrote the "only wine made from fruit" clause first and their intent was for "natural" wine rather than "illicit" wines of dubious nature ("this? this is my grandmother's old recipe for corn, rye, and ethanol wine"). Later they probably came up with the official definition and never realized in was in contradiction to the way the clause was written.

If so, it's possible that Zuljin is right that mead is "legal" in the sense that no-one intended it to not be legal and no-one ever noticed or interpreted it to be illegal.

But however it came about, as the law is written, mead is verbitten.

**possible****?!?!?!?

And you can call the state. Call the guvnah. Call TABC!

Hey. That's a good idea. I'll contact TABC. And I'm so sure, I won't even use my usual double proxy super secret squirrel email from a Linux laptop at a public wi-fi hotspot email, like I usually do when contacting the gubmint.

 

[Zuljin]

I guess the good thing about being from Texas is you can always plead stupidity. And it will almost always be valid.

I'm not from Texas, but I got here as soon as I could. Your argument is invalid.

 

[motobrewer]

Bigger point, and I bet one that we are all guilty of is the "for the use of his family or himself..."

So, yes if you drink it he is in violation (in the strictest interpretation of the code) since you are not the head of the household or a family member.

Yeah, see, that's the same wording that screwed over Wisconsin two years back.

 

[mattd2]

**SOMEtimes****?!?!?!?


I'm thinking that it's more likely that making it from honey or straight sugar was more like distilling and moonshine in the eyes of those living with the memory of the shadow of prohibition. They're willing to make exception beer and fruit wine where the alcohol is a subproduct but when you mess with the sugar directly... ooh, scary.

Or maybe now after creamygoodnesses post, maybe they wrote the "only wine made from fruit" clause first and their intent was for "natural" wine rather than "illicit" wines of dubious nature ("this? this is my grandmother's old recipe for corn, rye, and ethanol wine"). Later they probably came up with the official definition and never realized in was in contradiction to the way the clause was written.

If so, it's possible that Zuljin is right that mead is "legal" in the sense that no-one intended it to not be legal and no-one ever noticed or interpreted it to be illegal.

But however it came about, as the law is written, mead is verbitten.

I think we have the answer with your last 2 posts, insummary:
Law makers are ****ty at making laws,
In some things to do with legislation what is written was not what was meant to be written
The above only comes out when someone complains about it - and the most common solution is to amend the legislation to what was obviously intended but messed up in the first place - until that happens everyone goes about their days technically breaking the law without even knowing it

 

[woozy]

I guess the good thing about being from Texas is you can always plead stupidity. And it will almost always be valid.

Now let's not get mean.

I think we have the answer with your last 2 posts, insummary:
Law makers are ****ty at making laws,
In some things to do with legislation what is written was not what was meant to be written
The above only comes out when someone complains about it - and the most common solution is to amend the legislation to what was obviously intended but messed up in the first place - until that happens everyone goes about their days technically breaking the law without even knowing it

um, I'm not certain that they didn't intend to exclude mead and if the did intend to exclude mead the law isn't poorly written. But if they didn't it is.

I'm more inclined to think that the legislature that actually sat down and wrote the law did so with reasons (or lobby pressure) to be picayune and arbitrary and that no-one paid attention from the beginning rather than to think that they did the law in a slap-dash manner.

I mean if you think about it, there's any number of reasons mead could have been excluded not the least being the spouse of legislature having a bug up her butt about vikings. Stupid laws have been writing for lesser reasons.

*hrrmmph* clothing and paper out of hemp can be abused by drug addicts and *hrmmmph*

Zuljin does seem to think I'm trying to state something more than I am.

So I'll goad him on with these pretty clear statements of Texas law:

1) It's illegal to give homebrew to someone who is not a family member.
2) If your spouse, parent, or other family member is the head of your household you may not homebrew.
3) It doesn't look like I can make rhubarb wine either... (Even if its the stalk of rhubarb is a fruit, which it isn't, you aren't naturally fermenting the juice as the juice has utterly no amount of fermentable sugar. )

 

[Zuljin]

No. Not at all. You're saying it's illegal and I'm saying it's legal.

TABC sent me an automatic out of office reply that said it may take 5 business days to answer the question. With July 4th being Thursday, it wouldn't surprise me it took until week after next.

 

[woozy]

No. Not at all. You're saying it's illegal and I'm saying it's legal.

yeah, but you seem to think it everybody doing it in public on a grand scale with well-publicized competitions and everyone thinking it is legal and no-one ever being cited for it and lack of precedence and reason and knowledge for prohibiting it, somehow pertains to its legality.

You seem to think its legality pertains to an iota of common sense or to the actions of the entire citizenry, law enforcement, and the courts of Texas.

 

[motobrewer]

picayune

You keep using that word. I do not think it means what you think it means.

 

[woozy]

You keep using that word. I do not think it means what you think it means.

meh... you're probably right.

...goes to dictionary....

No. It means what I thought it meant. I meant it to mean petty and small-minded. Although I was putting a pinch of implied "arbitrary" into definition which isn't in the word itself but implied from context.

 

[ajdelange]

....or beer is not distilled, fortified, or otherwise altered to increase its alcohol content.(c)

So... if I go visit a friend in Texas ...

The operators of this site have been advised by legal counsel to prohibit discussion of distillation because the servers are located in Texas. For some reason, discussion of freeze concentration is OK. I am confused.

 

[Zuljin]

yeah, but you seem to think it everybody doing it in public on a grand scale with well-publicized competitions and everyone thinking it is legal and no-one ever being cited for it and lack of precedence and reason and knowledge for prohibiting it, somehow pertains to its legality.

You seem to think its legality pertains to an iota of common sense or to the actions of the entire citizenry, law enforcement, and the courts of Texas.

I've been pretty clear and consistent that I believe it's legal because the law says it is. The rest was supporting argument.

Now, hold on to your honey combs. I'll brb.

 

[Zuljin]

Yes, the home brewing of beer and wine is legal in the state of Texas. Since mead is honey wine it is covered by the following section of the Texas Alcoholic Beverage Code.



SUBCHAPTER B. HOME PRODUCTION OF WINE, ALE, MALT LIQUOR, OR BEER

Sec. 109.21 HOME PRODUCTION OF WINE, ALE, MALT LIQUOR, OR BEER. (a) The head of a family or an unmarried adult may produce for the use of his family or himself not more than 200 gallons of wine, ale, malt liquor, or beer, per year. No license or permit is required.

(b) The commission may prohibit the use of any ingredient it finds detrimental to health or susceptible of use to evade this code. Only wine made from the normal alcoholic fermentation of the juices of dandelions or grapes, raisins, or other fruits may be produced under this section. Only ale, malt liquor, or beer made from the normal alcoholic fermentation of malted barley with hops, or their products, and with or without other malted or unmalted cereals, may be produced under this section. The possession of wine, ale, malt liquor, or beer produced under this section is not an offense if the person making it complies with all provisions of this section and the wine, ale, malt liquor, or beer is not distilled, fortified, or otherwise altered to increase its alcohol content.

(c) There is no annual state fee for beverages produced in compliance with this section.



Sec. 109.22 DELIVERY OF HOME-PRODUCED WINE, ALE, MALT LIQUOR, OR BEER FOR CERTAIN PURPOSES. (a) This section applies only to a person who is authorized under Section 109.21(a) to produce wine, ale, malt liquor, or beer.

(b) For the purpose of participating in an organized tasting, evaluation, competition, or literary review, a person to whom this section applies may deliver wine, ale, malt liquor, or beer produced and manufactured by the person to locations that are not licensed under this code for the purpose of submitting those products to an evaluation at an organized tasting competition that is closed to the general public or by a reviewer whose reviews are published if:

(1) no charge of any kind is made for the wine, ale, malt liquor, or beer, for its delivery, or for attendance at the event; and

(2) the commission consents in writing to the delivery.

(c) Nothing in this section shall be construed to authorize an increase in the quantity of wine, ale, malt liquor, or beer authorized to be produced by a person under the authority of Section 109.21(a) of this code.



Please contact us if you have any additional questions.



Todd Talley

Management Analyst

Texas Alcoholic Beverage Commission
5806 Mesa Drive, Suite 210
Austin, TX 78731
Office: 512-206-3305

Fax: 512-206-3349

E-Mail: [email protected]



DISCLAIMER: The information transmitted (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, is intended only for the person(s) or entity/entities to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient(s) is prohibited. If you received this in error, please contact the sender and delete the material from any computer.

 

[Zuljin]

Ka-boom! Boom! Boom!

 

[woozy]

And there it is *again*

Subchapter B. Section 109.21 (b): Only wine made from the normal alcoholic fermentation of the juices of dandelions or grapes, raisins, or other fruits may be produced under this section.

---
Okay, so you believe it is legal because the law says it legal.

All right. I believe it is illegal because the law says it *isn't* legal.

And... !!ods-blocket!! ... THERE IT IS: Subchapter B. Section 109.21 (b): In black and white, plain as the nose on your face, or any other cliche, right there, it's *always* been right there!

Only wine made from the normal alcoholic fermentation of the juices of dandelions or grapes, raisins, or other fruits may be produced under this section.

There! read that again!

Only wine made from the normal alcoholic fermentation of the juices of dandelions or grapes, raisins, or other fruits may be produced under this section.

The law says mead is *not* legal.

 

[woozy]

...or does Texas law consider honey a fruit?

 

[Zuljin]

The answer came live and direct TABC. It's legal.

 

[CreamyGoodness]

If an overzealous police officer were to try to charge Zuljin with having illegal homebrew mead (and he lived in Texas), could Zuljin use the email he received from the TABC in court to prove that he was acting in good faith and within what was thought to be the confines of the law?

 

[woozy]

The answer came live and direct TABC. It's legal.

Agents aren't lawyers... His giving you the go ahead and he's telling you they don't consider it illegal. He might even be telling you the courts have interpretted it as legal (in which case I guess it would be legal, but wouldn't they have written an ammendment?). But by the statute and subsection as written and still in the books? Not legal.

If an overzealous police officer were to try to charge Zuljin with having illegal homebrew mead (and he lived in Texas), could Zuljin use the email he received from the TABC in court to prove that he was acting in good faith and within what was thought to be the confines of the law?

I think so. I would hope so. The overzealous police officer would need an ******* judge otherwise, which I suppose could happen. But, yeah, a letter from an official TABC claiming it's legal really ought to exonerate anyone, shouldn't it? It'd be good enough for me. But then I'd just brew it anyway without it.

For this to actually become an issue I think you need someone with an agenda coming down hard as they did in Wisconsin.

And that could happen as the law is currently stated. The Wisconsin state fair, like Zuljin and the Bluebonnet competition, was "legal" in the sense that it was interpreted and percieved as legal via a liberal definition of "personal use". But as soon as a person with the letter of the law in hand challenged it it no longer was. Similarly mead may be "legal" by a universally perceived liberal use of the term "other fruit" but if someone with the letter of the law in hand tried to push it, it might not be.

 

[Zuljin]

It's straight from the horse's mouth, which is better than any other horse parts offered, that home made mead is legal in Texas. It doesn't matter that an agent is not a lawyer or a rock or a porpoise. What does that even mean, agents aren't lawyers? I agree. Fleas aren't foot stools either. It's irrelephant. TABC is in the business of knowing the laws of their agency and they say it's legal. It's legal. No wiggle room. No if, ands or butts. It's legal.

 

[motobrewer]

It's straight from the horse's mouth, which is better than any other horse parts offered, that home made mead is legal in Texas. It doesn't matter that an agent is not a lawyer or a rock or a porpoise. What does that even mean, agents aren't lawyers? I agree. Fleas aren't foot stools either. It's irrelephant. TABC is in the business of knowing the laws of their agency and they say it's legal. It's legal. No wiggle room. No if, ands or butts. It's legal.

Well, that's the answer I expected. I bet if you asked the Wisconsin abc if homebrew comps were legal two years ago they would have said "hell yeah".

Because they were absolutely, totally, without a doubt legal......until they weren't. Otherwise I wouldn't of had to write all those letters

 

[mattd2]

Well, that's the answer I expected. I bet if you asked the Wisconsin abc if homebrew comps were legal two years ago they would have said "hell yeah".

Because they were absolutely, totally, without a doubt legal......until they weren't. Otherwise I wouldn't of had to write all those letters

I agree with this, the email Zuljin got seems like he took all of 3 secoinds to answer the question - "yes, *copy/paste*" now back to some important work.
I would say that If you took that to court in the case you ever did come across the power-tripping cop that wanted to nail you for anything, it would show that you did do your due diligance to find out if it was legal and you would be let off. I would also imagine the judge could be caught scratching his head as to if it really was meant to be lega or not just as we are

On another note, I just noticed this - it seems like homebrewing is only legal in Texas if you are male!

 

[Zuljin]

What? This is... What? How long do you want a yes or no answer to take? Its a clear cut and dry deal. Do you have a belly button? How long will it take you to figure it out?

 

[mattd2]

What? This is... What? How long do you want a yes or no answer to take? Its a clear cut and dry deal. Do you have a belly button? How long will it take you to figure it out?

huh?
Ignorance of the law (in this case assuming it is legal just because everyone else is doing it) is not a legal defence. The law says what it says:

Subchapter B. Section 109.21 (b): Only wine made from the normal alcoholic fermentation of the juices of dandelions or grapes, raisins, or other fruits may be produced under this section.

Where in there does it say "and also wine made from honey as we defined wine was earlier in this legislation". It doesn't. Clear cut and dry.
It is saying that in that section which is dealing with homebrewing that only wine made with those ingredients can be made.

Do you agree that that is how the law is written?

Really there are 2 agruments going on here:
1) What does the legislation say (is it technically legal?) - woozy
2) Would you ever get busted for it (is it practically legal?) - Zuljin

As for my belly button, even if I truly believed I did not have a belly button, I would still be wrong if I told you I didn't.

 

[woozy]

When the law says "Only wine made from the normal alcoholic fermentation of the juices of dandelions or grapes, raisins, or other fruits may be produced under this section" then no agent, cop, lawyer, God, or talking dog is going to be able to tell me it's not without a reference to a legal precedence, amendment or court ruling the specifically addresses that statement of the law.

Until that law is taken off the books or later law is introduced rescinding it, that law is there.

----
Much as I'd like to joke about the "he" language, it's well established that the old-fashioned and sexist indefinite "he" of ages past is not gender specific.

What is interesting is if you are married only the head of household may make beer. I have no idea if a couple can flip a coin to determine which it'll be, but apparently for a couple they can't *both* brew; only one or the other.

 

[Zuljin]

Still legal.

 

[mattd2]

When the law says "Only wine made from the normal alcoholic fermentation of the juices of dandelions or grapes, raisins, or other fruits may be produced under this section" then no agent, cop, lawyer, God, or talking dog is going to be able to tell me it's not without a reference to a legal precedence, amendment or court ruling the specifically addresses that statement of the law.

Until that law is taken off the books or later law is introduced rescinding it, that law is there.

----
Much as I'd like to joke about the "he" language, it's well established that the old-fashioned and sexist indefinite "he" of ages past is not gender specific.

What is interesting is if you are married only the head of household may make beer. I have no idea if a couple can flip a coin to determine which it'll be, but apparently for a couple they can't *both* brew; only one or the other.

I think you said it before that it will take someone to actually kick up a big stink for some reason or another to actually get anyone to bother to change the law (as they did in WI.). And I guess it is the same with the "he"s, but as you say it is well estiablish that it means the person we were talking about before (not gender specific), and there is so much of it to change that it is not worth it.

 

[woozy]

I don't know that it'll take a "stink". They could change it tomorrow. But meanwhile no-one is busting anyone and agents are telling folks it is legal. And changing laws is difficult so we presume someone will have to *care* first. But someone *could* raise a stink and fink on his neighbor and drag the neighbor kicking and screaming. Or, morelikely, some politician will want to squeeze revenue out of the Bluebonnet competition. And then it can get pretty sticky because *honey is not a fruit nor a dandelion and only wine made from fruits or dandelions are covered in the subsection.*