A country lawyer working out of a 19th-century farmhouse that’s occasionally overrun by feral cats is trying to overturn a state law that’s been around for 91 years.
What makes him think he can do this?
“Once you sue the president, everything else is a little bit smaller,” he says.
Meet Bill Stanley, better known to most people as state Sen. Bill Stanley, R-Franklin County. He recently filed a lawsuit that seeks to have a court declare Virginia’s requirement that restaurants that serve mixed drinks also serve a certain amount of food to be unconstitutional.
If successful, this would bring down a law whose origins are rooted in the Prohibition era, which makes for both a history lesson and a modern-day policy discussion, with a colorful political tale or two thrown in.
Of course, “colorful” is a word that is too easy to use in connection with Stanley. What many don’t know or have forgotten: At the very beginning of his legal career, Stanley worked with Gil Davis, who represented Paula Jones in her sexual harassment lawsuit against then-President Bill Clinton. That suit led to Clinton being asked about Monica Lewinsky and a 9-0 Supreme Court ruling that a U.S. president is not exempt from civil litigation for acts allegedly committed beyond his office.
Over the years, Stanley has made a name for himself in Virginia courtrooms in other ways: He famously got a punk band from New Jersey off a charge of mooning drivers on Interstate 81 when, upon questioning, the offended motorist couldn’t identify which band member displayed his posterior through the window. Stanley suggested that the judge order the band members to drop trou in the courtroom — something he knew the judge wouldn’t do.
He also is co-owner of an auto racing team with former NASCAR driver Hermie Sadler, co-host of a podcast with Sadler, and lately has been involved in representing Sadler in a legal challenge to the state’s ban on so-called electronic skill games. The suit — now moving slowly through the courts — pits Stanley against the state’s casinos, who see those games as unregulated slot machines. This suit against the state Alcoholic Beverage Control board also involves a legal fight with casinos.
My point here is not to glorify Stanley but to try to probe how a single lawyer, operating far from the state’s center of power, is the one bringing these suits that, depending on your point of view, either tackle some powerful business interests and level the playing field for small business, or open the state’s doors to who knows what all.
Stanley says it’s simple: “Skill games came about because my friend Hermie Sadler told me what was going on, and it made me mad. This suit came about because a restaurant told me about it, and it made me mad. As a lawyer, I have the ability to do something about it.”
To be fair, Stanley is not your typical country lawyer, even if his office is in a pre-Civil War structure that future civil rights leader Booker T. Washington visited while still an enslaved boy. As a legislator, he does enjoy a certain prominence that gives him a competitive edge over your run-of-the-mill barrister. There aren’t many Franklin County lawyers who wound up getting involved in Loudoun County’s school troubles; Stanley represented the parent who was charged with disrupting a Loudoun County School Board meeting as he protested his daughter’s sexual assault. The parent was later pardoned by the governor.
Stanley also has an office in Richmond, and his law partner is Anthony Troy, a former Democratic attorney general from the 1970s. In any case, whether operating out of Franklin County (where his office does take in stray cats) or downtown Richmond, Stanley is now taking on liquor laws that have been around so long that we must crack open the history books to explain them. That’s exactly what Stanley did as he put together the 22-page brief. “It’s almost like a Dwayne Yancey article,” he said slyly, and I’ll confess, I find it hard to resist a good history lesson.
To understand Virginia’s alcohol laws, particularly the requirement that restaurants serving liquor must sell a certain amount of food, we have to go back to the temperance movement of the early 1900s. The fight between the “wets” and the “drys” animated the state’s politics then, and the lines weren’t always clear.
The immediate question was whether Virginia would allow a referendum to enact statewide prohibition — this before there was a national ban on alcohol. In 1914, the House of Delegates voted overwhelmingly for a referendum, which was expected to pass. The Senate had always been the obstacle, but by 1914, some senators had been persuaded to switch sides. Historian Virginius Dabney writes that the Senate tied 20-20 only after prohibitionists dragged “a hard-drinking senator out of bed, despite his sufferings from an alcoholic carouse the night before, and added his ‘dry’ vote to the total of 19.” That threw the vote to Lt. Gov. Taylor Ellyson “who was personally well over on the ‘wet’ side” but who had pledged to vote “dry” if the opportunity came. It did. “The era of the amphibious statesman — that notorious species which voted ‘dry’ and drank ‘wet’ — had dawned for Virginia,” Dabney wrote.
In September 1914, nearly 60% of Virginians voted in favor of a statewide prohibition. Dabney wrote that Richmonders alone spent upwards of $2 million stocking up on liquor — the equivalent of $62.9 million today, according to the federal government’s Inflation Calculator. When Congress passed a constitutional amendment in late 1917 that would allow for national prohibition, Virginia was enthusiastically in favor. Virginia was the second state (behind only Mississippi) to ratify the amendment.
The experiment known as Prohibition gave rise to bathtub gin, jazz, Al Capone — and much political dissatisfaction. Come 1933, states rushed to repeal the 18th Amendment. In October 1933, 64% of Virginians voted to repeal the federal amendment and 64.5% to repeal the statewide prohibition law — and enact “a plan of liquor control.” That plan became what is now the Alcoholic Beverage Control board. President Franklin Roosevelt admonished Americans: “I ask especially that no state shall by law or otherwise, authorize the return of the saloon either in its old form or in some modern guise.”
Virginia took that advice quite literally. Only the state would be allowed to sell liquor (through its ABC stores), and restaurants would be banned from serving liquor. One of Virginia’s goals was to keep the price of liquor low, in hopes that would drive out bootleggers. (This remains a problem today in states that have legalized cannabis but taxed it heavily; the black market still flourishes, but that’s a subject for another day.)
In 1960, two Norfolk legislators — Calvin Childress and Henry Howell, who would later become known as “Howlin’ Henry” during his three unsuccessful runs for governor — began pushing to allow Virginia restaurants to serve liquor by the drink. They thought that would be a boon for tourism. Others were not impressed. A 1961 column in the Richmond Times-Dispatch declared: “It may be argued that a hotel or restaurant which serves distilled liquors at tables is not a saloon in the common acceptance of the word, but really the only difference is that the bar and the swinging doors are missing.”
Not until eight years later, in 1968, did Virginia finally allow liquor by the drink, and then there were lots of rules: Localities had to approve this in a referendum. Restaurants had to have at least 50 seats. Those larger restaurants that met the seating requirement still could not allow liquor if they allowed “immoral, indecent or profane language” or hired anyone known to be “a prostitute, homosexual, panderer, gambler, habitual law violator, person of ill repute, user of or peddler of narcotics or person who drinks to excess.” And, oh, one other thing: They had to sell a certain amount of food. That’s what would keep liquor-serving restaurants from devolving into bars and saloons.
At first, the revenue rule was 51% food, 49% alcohol. Over the years, that ratio has been changed to 45% food, 55% alcohol. That rule isn’t unique to Virginia — North Carolina has a similar one — but it is unusual. Over the years, some have chafed at those percentages, and the calculations that go into them. While the original goal of state policy was to keep liquor prices low to force moonshiners out of business, the state today sees ABC as a revenue generator — which means each time the board raises the price of liquor, restaurants must raise the price of food to keep their revenue percentages in line. (Stanley calls that a “tax.”)
Jarrett Dieterle, who analyzes liquor policy for R Street, a conservative think tank in Washington, calls this food-to-alcohol rule a “legal zombie” that won’t die and blames “a powerful group of established Richmond restaurateurs” for fighting periodic attempts to loosen the ratio. On the other hand, Virginia’s old fear of saloons remains very much intact. In 2015, then-Senate Minority Leader Richard Saslaw, D-Fairfax County, famously opposed a change this way: “If you can’t meet that ratio, you ain’t running a restaurant, you are running a bar. If you want saloons in Virginia, say so.” No one dares say so, although Dieterle does make the case that Virginia is missing out, culturally: “Virginians [are] shut out of the nightlife scene. There’s often nowhere they can go to enjoy venues like late-night jazz clubs or craft cocktail bars. The Virginia economy is also left out of the booming growth of the cocktail movement and remains trapped in the Prohibition Era by a few protectionist insiders.” (Let the record show that I don’t drink, so it doesn’t matter to me what’s being served.)
Stanley doesn’t frame his lawsuit in terms of saloons but in terms of fairness. He argues that the law has been amended so many times over the years that it’s been turned from a “general law” that applies to all into a “special law” that targets a smaller group and therefore is constitutionally suspect in the same way that the old Sunday closing laws — the so-called “blue laws” — were before they were struck down. Stanley’s client here is Fish and Slips, a Portsmouth restaurant that feels disadvantaged in one particular way: It’s 4 miles from the new Rivers Casino. Virginia law exempts casinos from the food-to-alcohol ratio — and allows liquor sales around the clock. Stanley — no friend of casinos — argues that having one set of liquor laws for casinos and another for regular restaurants just down the road violates Virginia’s constitutional right “to acquire property on equal footing with the rest of the citizenry” and that “no man (or set of men) are entitled to exclusive or separate emoluments or privileges from the community.”
A judge — or, potentially, lots of judges, if this case winds up being appealed by one side or the other — will have to decide all that.
Over the years, there have been challenges to parts of the state’s liquor law. The most famous of those was a 1991 lawsuit by a gay bar in Alexandria. The French Quarter Café wanted a liquor license. A local resident objected, citing Virginia’s 1934 law that banned restaurants catering to gay people from holding liquor licenses. “The laws of the state of Virginia say you cannot open a gay bar,” William Glasgow Jr. told The Washington Post. “I’m definitely in favor of the law. We’ve got to protect family life. We cannot protect family life if we have people going around proclaiming what they do in the bedroom, whether it’s homosexual or heterosexual. It’s just traveling a pathway to anarchy.”
Café owner Murray Greenberg went to federal court, seeking to have the sexual orientation part of the state’s liquor law struck down. Judge Albert Bryan Jr. — a Richard Nixon appointee — agreed. (Despite getting a liquor license, the restaurant closed three years later.)
However, no one I talked to can remember a full-fledged assault on the constitutionality of the state’s food-to-alcohol ratio — until now. What are the odds of success? I couldn’t find any legal expert willing to venture a guess.
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