At the stroke of midnight on New Year's Eve, the longtime practice of brown-bagging alcoholic beverages into Utah beer taverns and restaurants became illegal.
Third District Judge James S. Sawaya rejected Monday what he called "an eleventh-hour attempt" to stop brown-bagging and other provisions of last year's landmark liquor legislation from taking effect as scheduled Jan. 1.Owners of taverns and other drinking establishments that sell beer had hoped the judge would issue a temporary restraining order so they could continue letting customers carry in their own liquor and wine.
That practice, known as brown-bagging, allowed drinking establishments that were licensed to sell only beer to make money from selling mixers for liquor and from charging to uncork wine.
At some beer taverns, the sale of liquor setups and wine corkage accounted for as much as half of their profits, according to Harold Olsen, president of the Utah Licensed Beverage Association.
"As long as we've been denied the TRO (temporary restraining order), we're going to lose that revenue," Olsen said after the judge's ruling, which came after only a few minutes of oral arguments. "It will hurt."
Olsen, who owns the Front Row tavern in Salt Lake City, and others who claim to be adversely affected by the changes in the state's liquor law made by the 1990 Legislature will have another chance to state their case.
Sawaya agreed to hear the Utah Licensed Beverage Association's request for a preliminary injunction on Jan. 17, the same week that the 1991 Legislature convenes.
One of the attorneys representing the association, Jerry Mooney, had told the court his clients couldn't wait until lawmakers meet to seek changes in the way the state regulates liquor.
But state assistant attorney general Richard Wyss pointed out that many of the changes in the state's liquor law took effect earlier this year and that the legislation was approved last February.
The judge agreed the tavern owners would not suffer irrefutable harm by waiting until a hearing could be held on the preliminary injunction, although he said some of their arguments may have merit.
"The issues raised by these pleadings could have well been presented to the court before the eleventh hour," Sawaya said. But he said he understood "time is of the essence" and scheduled the hearing accordingly.
Besides a reversal on the brown-bagging ban, the tavern owners association also wants prohibitions on advertising alcoholic beverages lifted because, their complaint states, those prohibitions violate the First Amendment.
Olsen said some taverns are losing potential customers because advertising that is visible from the street, such as beer signs, is no longer permissible under the changes.
"People driving down, say State Street, don't see any signs. If they're looking for a bar, they don't know where to go. That's detrimental to business," he said.
The complaint also states that the changes approved by the Legislature last year "constitute a taking of the tavern owners economic interests, without compensation . . . ."
Finally, the complaint states that the regulations discriminate against tavern owners. Among the alleged discriminations: Retailers can start selling beer at 7 a.m., but tavern owners have to wait until 10 a.m. under the changes.
"There are a lot of people who work night jobs. It's affected a lot of taverns in industrial areas," Olsen said, adding that some are losing as much as 40 percent of their business.
The most discussed change made by the 1990 Legislature in the state's liquor laws is the elimination of the minibottle. The tiny bottles of liquor must be replaced by measured dispensing devices by July 1, 1991.