§122a — Title 27 Intoxicating Liquors | U.S. Code

Summary

A state's top law officer may go to a federal district court to ask a judge to stop someone who is importing or moving alcoholic drinks in a way that the state thinks breaks its law. "Attorney general" here means the state's chief law officer or their designee. "Intoxicating liquor" means any kind of alcoholic drink. "Person" means an individual or most kinds of businesses, but not a State or its agency. "State" includes the 50 States, the District of Columbia, Puerto Rico, and U.S. territories. Federal district courts can hear these suits, except when the defendant is licensed in that State to make, sell, or store alcohol. The case must be filed under section 1391 of title 28 or where the recipient lives or is found. The suit can only ask for a court order (temporary or permanent) to stop the activity and make the person follow the law. The State must prove by a preponderance of the evidence that the state law was violated. A temporary order needs proof of likely irreparable harm and likely success on the merits. Notices and hearings are required. Orders must state reasons, be clear about what is banned, and bind the parties and those acting with them who get actual notice. Federal court power here applies only to state laws valid under the twenty-first article of amendment and under section 122 of this title as the Supreme Court interprets them. These remedies are extra options and do not stop state officials from using state courts.

Title 27, §122a

Intoxicating Liquors — Source: USLM XML via OLRC

(a)In this section—

(1)the term “attorney general” means the attorney general or other chief law enforcement officer of a State or the designee thereof;

(2)the term “intoxicating liquor” means any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind;

(3)the term “person” means any individual and any partnership, corporation, company, firm, society, association, joint stock company, trust, or other entity capable of holding a legal or beneficial interest in property, but does not include a State or agency thereof; and

(4)the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.

(b)If the attorney general has reasonable cause to believe that a person is engaged in, or has engaged in, any act that would constitute a violation of a State law regulating the importation or transportation of any intoxicating liquor, the attorney general may bring a civil action in accordance with this section for injunctive relief (including a preliminary or permanent injunction) against the person, as the attorney general determines to be necessary to—

(1)restrain the person from engaging, or continuing to engage, in the violation; and

(2)enforce compliance with the State law.

(c)(1)The district courts of the United States shall have jurisdiction over any action brought under this section by an attorney general against any person, except one licensed or otherwise authorized to produce, sell, or store intoxicating liquor in such State.

(2)An action under this section may be brought only in accordance with section 1391 of title 28 or in the district in which the recipient of the intoxicating liquor resides or is found.

(3)An action under this section is limited to actions seeking injunctive relief (a preliminary and/or permanent injunction).

(4)An action under this section shall be tried before the court.

(d)(1)In any action brought under this section, upon a proper showing by the attorney general of the State, the court may issue a preliminary or permanent injunction to restrain a violation of this section. A proper showing under this paragraph shall require that a State prove by a preponderance of the evidence that a violation of State law as described in subsection (b) has taken place or is taking place.

(2)No preliminary injunction may be granted except upon—

(A)evidence demonstrating the probability of irreparable injury if injunctive relief is not granted; and

(B)evidence supporting the probability of success on the merits.

(3)No preliminary or permanent injunction may be issued under paragraph (1) without notice to the adverse party and an opportunity for a hearing.

(4)Any preliminary or permanent injunction entered in an action brought under this section shall—

(A)set forth the reasons for the issuance of the order;

(B)be specific in terms;

(C)describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and

(D)be binding upon—

(i)the parties to the action and the officers, agents, employees, and attorneys of those parties; and

(ii)persons in active concert or participation with the parties to the action who receive actual notice of the order by personal service or otherwise.

(5)In a hearing on an application for a permanent injunction, any evidence previously received on an application for a preliminary injunction in connection with the same civil action and that would otherwise be admissible, may be made a part of the record of the hearing on the permanent injunction.

(e)This section shall be construed only to extend the jurisdiction of Federal courts in connection with State law that is a valid exercise of power vested in the States—

(1)under the twenty-first article of amendment to the Constitution of the United States as such article of amendment is interpreted by the Supreme Court of the United States including interpretations in conjunction with other provisions of the Constitution of the United States; and

(2)under section 122 of this title as such section is interpreted by the Supreme Court of the United States; but shall not be construed to grant to States any additional power.

(f)(1)A remedy under this section is in addition to any other remedies provided by law.

(2)Nothing in this section may be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any State law.

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 106–386, div. C, § 2004(b), Oct. 28, 2000, 114 Stat. 1548, provided that: “This section [enacting this section and section 122b of this title and provisions set out as a note under this section] and the

Amendments

made by this section shall become effective 90 days after the date of the enactment of this Act [Oct. 28, 2000].” Impact Study Pub. L. 106–386, div. C, § 2004(c), Oct. 28, 2000, 114 Stat. 1548, provided that: “The Attorney General shall carry out the study to determine the impact of this section [enacting this section and section 122b of this title and provisions set out as a note under this section] and shall submit the results of such study not later than 180 days after the enactment of this Act [Oct. 28, 2000].”

§122a Injunctive Relief in Federal District Court