FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLACK STAR FARMS LLC; JOHN
NORTON; GARY FRISCH; MICHELLE
FRISCH; DAVID MONHEIT; MELISSA
MONHEIT,
Plaintiffs-Appellants,
No. 08-15738
v.
D.C. No.
JERRY OLIVER, in his official
capacity as Director of the State of
2:05-CV-02620-
MHM
Arizona Department of Liquor
License and Control, OPINION
Defendant-Appellee,
ALLIANCE BEVERAGE DISTRIBUTING
COMPANY LLC,
Defendant-Intervenor-Appellee.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
September 15, 2009—San Francisco, California
Filed April 13, 2010
Before: Stephen S. Trott and Carlos T. Bea, Circuit Judges,
and Suzanne B. Conlon,* District Judge.
Opinion by Judge Trott
*The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
5507
5510 BLACK STAR FARMS v. OLIVER
COUNSEL
James A. Tanford, Indiana University School of Law, Bloo-
mington, Indiana, for the plaintiffs-appellants.
Kathleen P. Sweeney, Assistant Attorney General, Phoenix,
Arizona, for the defendant-appellee.
Deborah A. Skakel, Dickstein Shapiro LLP, New York, New
York, for the intervenor-defendant-appellee.
Kevin E. O’Malley, Gallagher & Kennedy, P.A., Phoenix,
Arizona, for the defendant-intervenor-appellee.
OPINION
TROTT, Circuit Judge:
This case involves a Michigan winery’s claim that certain
provisions of Arizona’s statutory scheme regulating the direct
shipment of wine from wineries — whether located in-state or
out-of-state — to Arizona consumers violate the dormant
Commerce Clause. The Plaintiffs-Appellants (collectively
“Black Star Farms”) claim that those provisions, in practical
effect, unlawfully discriminate against out-of-state wineries.
Arizona generally requires all alcoholic beverages sold to
consumers in the state to pass through a three-tier distribution
system comprised of producers, wholesalers, and retailers.
However, Arizona has carved out two exceptions to its system
that allow wineries under specified circumstances to bypass
the three-tier distribution system. First, all wineries that pro-
BLACK STAR FARMS v. OLIVER 5511
duce less than 20,000 gallons of wine per year — whether
located in-state or out-of-state — are allowed to ship an
unlimited amount of wine directly to consumers, regardless of
how the order is placed, and to sell directly to retailers. Sec-
ond, all wineries — whether located in-state or out-of-state —
are allowed to ship two cases of wine per year directly to con-
sumers who purchase wine while they are physically present
at the winery. Relying on Granholm v. Heald, 544 U.S. 460
(2005), which held that States may mandate a three-tier distri-
bution scheme regulating the sale of wine so long as the
scheme does not unlawfully discriminate against out-of-state
wineries, Black Star Farms contends that these challenged
exceptions to the three-tier system violate the dormant Com-
merce Clause.
We conclude that Arizona’s statutory exceptions to its
three-tier distribution system, which treat similarly situated
in-state and out-of-state wineries the same and impose no new
impermissible burdens on out-of-state wineries, do not have
the practical effect of “favor[ing] in-state economic interests
over out-of-state interests.” Id. at 487. Therefore, we affirm
the district court’s order granting summary judgment in favor
of the State.
I
BACKGROUND
Arizona regulates the sale of alcoholic beverages through
a three-tier distribution system comprised of suppliers (e.g.,
wineries, distilleries, and breweries), wholesalers, and retail-
ers. See Ariz. Rev. Stat. §§ 4-243.01, 4-244(6)-(7). Generally,
suppliers may sell and deliver only to wholesalers, wholesal-
ers may sell and deliver only to retailers, and retailers may
sell and deliver only to consumers. Id. For the purposes of this
case, there are two key exceptions to this three-tier distribu-
tion system:
5512 BLACK STAR FARMS v. OLIVER
1. The “small winery” exception,1 which allows any
winery, wherever located but which produces no more than
20,000 gallons of wine per year, to ship an unlimited amount
of its wines directly to consumers, regardless of how the con-
sumer places his purchase order, and to sell directly to retail-
ers. Ariz. Rev. Stat. § 4-205.04(C)(7), (9).2
2. The “in person” exception, which allows any winery,
wherever located, to ship up to two cases of its wines per year
directly to a consumer, but only if the consumer is physically
present at the winery when he buys the wine. Ariz. Rev. Stat.
§ 4-203.04(J).3
Either or both exceptions are available on equal terms to
wineries located in Arizona and to wineries located else-
where.
The Arizona legislature created these exceptions in direct
response to Granholm, which held that the Commerce Clause
prohibits States from discriminating against interstate com-
merce when they regulate the transportation and importation
of alcohol pursuant to the Twenty-First Amendment. See S.B.
1276, 47th Leg., 2d Reg. Sess. (Ariz. 2006). Senate Bill
1276’s statement of purpose was as follows:
1
The district court referred to the small winery exception as a “gallon-
age cap exception.” Black Star Farms, LLC v. Oliver, 544 F. Supp. 2d
913, 917 (D. Ariz. 2008).
2
We use the term “small winery” to refer to wineries that produce no
more than 20,000 gallons of wine per year. We use the term “large win-
ery” to refer to wineries that produce more than 20,000 gallons of wine
per year.
3
Black Star Farms contends that the in-person exception is not available
to wineries that produce more than 40,000 gallons of wine per year. It is
misinformed. The statute is clear: “Notwithstanding any other law, a per-
son may ship wine as long as the following apply . . . .” Ariz. Rev. Stat.
§ 4-203.04(J) (emphasis added). None of the requirements in section 4-
203.04(J) set a 40,000 gallon limit. Id.
BLACK STAR FARMS v. OLIVER 5513
The purpose of this act is to conform Arizona laws
regarding the intrastate and interstate sales and deliv-
eries of wine to the provisions of Public Law 107-
273, div. C, Title I, section 11022 and to conform to
the requirements of the decision of the United States
Supreme Court in Granholm v. Heald, 544 U.S. 460,
125 S. Ct. 1885 (2005) by adopting nondiscrimina-
tory laws governing the sale and delivery of wine
produced by small wineries. This act is intended to
provide for a separate method of regulating only the
sale and delivery of wine produced by small win-
eries. Other than the specific exceptions established
by existing law and this act for domestic farm win-
eries, it is the intent of this act to retain the current
three-tier method of regulating the sale and delivery
of spirituous liquor and the current revenue collec-
tion and enforcement law.
Before passage of Senate Bill 1276, the small winery
exception was not available to wineries unless 75% of their
wine was produced from grapes grown in Arizona. Id. Fur-
ther, the small winery exception was not available to wineries
producing more than 75,000 gallons of wine per year. Id. Sen-
ate Bill 1276 removed the in-state production requirement and
reduced the cap applicable to the small winery exception to
20,000 gallons. Id. At that time, only one Arizona winery —
Kokopelli Winery — produced more than 20,000 gallons of
wine per year.
In 2007, there were more than 4,700 wineries in the United
States. In 2004, wineries producing more than 25,000 gallons
of wine per year accounted for about 98% of total wine pro-
duction in the United States. However, more than 70% of all
wineries produced less than 25,000 gallons per year.
Black Star Farms, a Michigan winery, produced approxi-
mately 35,000 gallons of wine in 2006. Thus, the small win-
ery exception was not available to Black Star Farms.
5514 BLACK STAR FARMS v. OLIVER
Nevertheless, the in-person exception did allow Black Star
Farms to ship up to two cases per year to a consumer who
purchased the wine while he was physically present at the
winery in Michigan. Plaintiffs-Appellants John Norton, David
and Melissa Monheit, and Gary and Michelle Frisch
(“consumer plaintiffs”) are Arizona residents and wine drink-
ers who desire to, and are prohibited from, ordering wine
from Black Star Farms and other out-of-state wineries over
the telephone and internet for delivery in Arizona. They can
drink Black Star Farms wines delivered to them in Arizona
only if they travel to Michigan and buy the wine at the win-
ery. Black Star Farms does not sell to Arizona wholesalers —
its production is too low for wholesalers to carry the brand.
Nor can Black Star Farms ship directly to Arizona retailers.
The consumer plaintiffs contend “[i]t is economically and
practically impossible for [them] to undertake the time and
expense to visit wineries located far from Arizona, including
those in Michigan, Napa, and Oregon, in order to purchase
wine in person and have it shipped home.”
Black Star Farms filed an action under 42 U.S.C. § 1983 on
the ground that the small winery and in-person exceptions to
the three-tier distribution system violate the dormant Com-
merce Clause because, in practical effect, the two exceptions
to the three-tier system discriminate against out-of-state win-
eries. Black Star Farms sought a declaratory judgment that the
statutory provisions were unconstitutional and sought to
enjoin enforcement of those provisions.
The district court denied Black Star Farms’s motion for
summary judgment and granted Defendants’ cross-motions
for summary judgment, concluding that Black Star Farms
failed to carry its burden of showing that the challenged statu-
tory scheme discriminates against out-of-state wineries in
practical effect. Black Star Farms, LLC, 544 F. Supp. 2d at
928-29. The district court first noted that Arizona’s statutory
scheme was “facially neutral and evenhanded.” Id. at 920.
The district court held that Black Star Farms failed to prove
BLACK STAR FARMS v. OLIVER 5515
that the small winery exception had the effect of discriminat-
ing against interstate commerce because (1) there was no evi-
dence the exception allowed in-state wineries to gain market
share at the expense of out-of-state wineries, and (2) more
than half of all United States wineries can take advantage of
the exception. Id. at 928. The district court also held that
Black Star Farms failed to prove that the in-person exception
had the effect of discriminating against interstate commerce
because (1) there was no evidence the exception allowed in-
state wineries to gain market share at the expense of out-of-
state wineries, and (2) Arizona was not required to compen-
sate out-of-state wineries for benefits that accrued to in-state
wineries based on their geographical proximity to Arizona
consumers. Id. at 925.
Black Star Farms appeals the district court’s order denying
its motion for summary judgment and granting cross-motions
for summary judgment filed by Defendant Jerry Oliver,
Director of the State of Arizona Department of Liquor
Licenses and Control, and Intervenor-Defendant Alliance
Beverage Distributing Company. We affirm the district court.
On this record, the small winery and in-person exceptions do
not discriminate against interstate commerce and, thus, strict
scrutiny does not apply. Because Black Star Farms concedes
its claims depend on the application of strict scrutiny, its
claims must fail.
II
STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment and its resolution of federal constitutional issues.
S.D. Myers, Inc. v. City & County of San Francisco, 253 F.3d
461, 466 (9th Cir. 2001). “We will affirm if the district court
applied the correct substantive law and the evidence reveals
no genuine issue of material fact when viewed in the light
most favorable to the party opposing summary judgment.” Id.
5516 BLACK STAR FARMS v. OLIVER
III
THE COMMERCE CLAUSE
[1] The Commerce Clause says: “The Congress shall have
Power . . . [t]o regulate Commerce . . . among the several
States.” U.S. Const. Art. I, § 8, cl. 3. The Supreme Court has
interpreted the Commerce Clause “to have a ‘negative’ aspect
that denies the States the power unjustifiably to discriminate
against or burden the interstate flow of articles of commerce.”
Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93,
98 (1994). Courts have sometimes referred to this doctrine as
the “dormant Commerce Clause.” United Haulers Ass’n v.
Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330,
338 (2007).
[2] Two levels of scrutiny exist for analyzing state statutes
challenged under the dormant Commerce Clause. Maine v.
Taylor, 477 U.S. 131, 138 (1986). The higher level of scrutiny
applies to a state statute that “discriminate[s] against interstate
commerce ‘either on its face or in practical effect.’ ” Id.
(quoting Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)). For
the purposes of the dormant Commerce Clause, “ ‘discrimina-
tion’ simply means differential treatment of in-state and out-
of-state economic interests that benefits the former and bur-
dens the latter.” Or. Waste, 511 U.S. at 99 (emphasis added).
Of course, the “differential treatment” must be as between
persons or entities who are similarly situated. See Gen.
Motors Corp. v. Tracy, 519 U.S. 278, 298-99 (1997); Nat’l
Ass’n of Optometrists & Opticians LensCrafters, Inc. v.
Brown, 567 F.3d 521, 525, 527 (9th Cir. 2009). A court must
analyze such a statute under the “strictest scrutiny.” Hughes,
441 U.S. at 337. That is, such a statute is unconstitutional
unless it “ ‘serves a legitimate local purpose,’ and . . . this
purpose could not be served as well by available nondiscrimi-
natory means.” Taylor, 477 U.S. at 138 (quoting Hughes, 441
U.S. at 336). The party challenging the statute bears the bur-
den of showing discrimination. Hughes, 441 U.S. at 336. In
BLACK STAR FARMS v. OLIVER 5517
this case, we agree with the district court that Black Star
Farms has not successfully met this burden.
IV
DISCUSSION
A.
Background
[3] In the district court, Black Star Farms conceded that the
statutory scheme at issue is not discriminatory on its face. It
also accused Arizona’s scheme of being the product of obvi-
ous “economic protectionism,” but it did not pursue this alle-
gation other than as an atmospheric circumstance. Indeed, in
its reply brief to us, Black Star Farms says that this “issue is
not important,” conceding (1) “that the evidence of [legisla-
tive] protectionist intent is largely circumstantial,” and (2)
that it “do[es] not have a smoking gun” on which to rely.
Accordingly, it declares that “it does not matter if the legisla-
ture had protectionist intent, because a finding that state legis-
lation constitutes economic protectionism may be made on the
basis of either discriminatory purpose or discriminatory effect.”4
Reply Brief at 24 (quotation and citation omitted). Thus, it
relies here, as it did in the district court, on its argument “that
the in-person and gallonage cap exceptions are discriminatory
in effect.” Black Star Farms, LLC, 544 F. Supp. 2d at 918.
Moreover, in its brief to us, it “agree[s] . . . that the Arizona
laws at issue would pass constitutional muster under the mini-
mal scrutiny test of Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970)” (a state law that applies evenhandedly to in-state
and out-of-state entities is subject to less searching scrutiny).
Therefore, Black Star Farms’s appeal asks us effectively to
4
In any event, the “evidence” of a legislative economic protectionist
purpose advanced by Black Star Farms is insufficient to survive summary
judgment were this an active issue.
5518 BLACK STAR FARMS v. OLIVER
decide one question, and one question only.5 That question is
whether Arizona’s statutory scheme for regulating the ship-
ment of wine to consumers has the practical effect of “favor-
[ing] in-state economic interests over out-of-state interests.”
Granholm, 544 U.S. at 487.
This question presents itself to us in the context of a motion
for summary judgment, which Black Star Farms failed to sur-
vive. Accordingly, the question we must examine and answer
de novo is whether the record adduced by Black Star Farms
was sufficient to support a verdict in its favor to the effect that
this facially neutral and even-handed scheme does have such
a prohibited discriminatory effect. We conclude that the
record would not support such a verdict, as we shall explain.
B.
Analysis
[4] The summary judgment record, as described by Judge
Murguia, is devoid of any substantial evidence of an actual
adverse effect created by this scheme — including its excep-
tions — which we repeat is facially neutral. We agree with
her assessment:
Plaintiffs proffer no evidence to suggest that such a
limited [direct shipment] exception, applicable to
both in-state and out-of-state wineries, erects a bar-
rier to Arizona’s wine market that in effect creates a
burden that alters the proportional share of the wine
market in favor of in-state wineries, such that out-of-
state wineries are unable to effectively compete in
the Arizona market.
5
As noted in Part V of this opinion, Black Star Farms attempts on
appeal to raise a new issue, but we decline to address it.
BLACK STAR FARMS v. OLIVER 5519
Black Star Farms, LLC, 544 F. Supp. 2d at 925.
Further, there is no indication whatsoever that the in-
person exception has any effect on the flow of inter-
state commerce; no indication that the exception
creates a system under which local goods constitute
a larger share, and goods with an out-of-state source
constitute a smaller share, of the total sales in the
market.
Id.
Plaintiffs have not established that Arizona’s in-
person and [small winery] exceptions to the State’s
three-tiered distribution system somehow alter the
proportional share of the State’s wine market in
favor of in-state wineries.
Id. at 927.
[5] Judge Murguia’s conclusion was that Black Star
Farms’s burden was to offer “substantial evidence of an actual
discriminatory effect,” but that “such evidence is absent
here.” Id. at 928. We agree.
C.
The “Small Winery” Exception
The district court observed with respect to the small winery
exception that the number of out-of-state wineries that can
take advantage of it “dwarf[s] the number of in-state win-
eries” that can do so. Id. at 926. Moreover, the district court
noted that “almost twice as many out-of-state wineries than
in-state wineries have already obtained” the necessary
licenses. Id.
[6] Surely, as recognized by the district court, there are
facially neutral schemes of this sort which in practice do have
5520 BLACK STAR FARMS v. OLIVER
the effect of deleteriously intruding upon Interstate Com-
merce, but here, Black Star Farms has not presented us with
such a factual scenario or case. See, e.g., Hunt v. Wash. State
Apple Adver. Comm’n, 432 U.S. 333, 352-53 (1977). In
essence, Black Star Farms asks us without substantial eviden-
tiary support to speculate and to infer that this scheme neces-
sarily has the effect it fears. This leap of faith we will not
take. Courts examining a “practical effect” challenge must be
reluctant to invalidate a state statutory scheme regulating
alcoholic beverages simply because it might turn out down the
road to be at odds with our constitutional prohibition against
state laws that discriminate against Interstate Commerce. The
proof of the pudding here must be in the eating, not in the pic-
ture on the box as seen through the partial eyes of the
beholder — which is especially true in a case where neither
facial economic discrimination nor improper purpose is an
issue.
As brought to our attention in their helpful amicus brief by
the Wine and Spirits Wholesalers of America, Inc., the Amer-
ican Beverage Licensees, and the Sazerac Company, three of
our sister circuits agree with this approach to a case asserting
a discriminatory effect claim. See, e.g., Cherry Hill Vineyard,
LLC v. Baldacci, 505 F.3d 28, 36 (1st Cir. 2007) (plaintiff
claiming discriminatory effect must submit “probative evi-
dence of adverse impact” and where a statutory provision “is
evenhanded on its face and wholesome in its purpose,” a
“substantial” evidentiary showing is required to prove dis-
criminatory effect); National Paint & Coatings Ass’n v. City
of Chicago, 45 F.3d 1124, 1132 (7th Cir. 1995) (discrimina-
tory effect was not established where “plaintiffs did not offer
any evidence”); Eastern Ky. Res. v. Fiscal Court of Magoffin
County, 127 F.3d 532, 544 (6th Cir. 1997) (“[U]nless there is
evidence that a state law treats in-state economic interests dif-
ferently than out-of-state economic interests, that law is valid
. . . .”).
[7] In other words, prove it, or lose it. When challenged in
its briefs to do so, Black Star Farms’s answer in its reply brief
BLACK STAR FARMS v. OLIVER 5521
effectively is, we don’t have to, it should be obvious. Based
upon precedent and logic, we disagree. As the First Circuit
aptly observed in Baldacci, “[c]onjecture . . . cannot take the
place of proof.” 505 F.3d at 39.
The First Circuit decided Family Winemakers of California
v. Jenkins, 592 F.3d 1 (1st Cir. 2010), after this case was sub-
mitted for decision. In that case, which is manifestly distin-
guishable from this case (and which cited Baldacci with
approval), the First Circuit struck down a Massachusetts stat-
ute establishing differential methods by which wineries dis-
tribute wine in that State. That statute differentiated between
“small” wineries producing 30,000 gallons or less of grape
wine a year, on one hand, and “large” wineries producing
more than 30,000 gallons of such wine, on the other. The fatal
problem identified by the First Circuit was that small wineries
could sell their wines in Massachusetts in three ways: “by
shipping directly to consumers, through wholesaler distribu-
tion, and through retail distribution.” Id. at 4. All Massachu-
setts wineries were “small” and could use all of these
methods. By contrast, “large” wineries, all of which were
located in other states, were required to “choose between rely-
ing upon wholesalers to distribute their wines [in Massachu-
setts] or applying for a ‘large winery shipping license’ to sell
directly to Massachusetts consumers. They cannot, by law,
use both methods to sell their wines in Massachusetts, and
they cannot sell wines directly to retailers under either
option.” Id.
The relevant issue in that case was whether the Massachu-
setts law was “discriminatory in effect.” Id. at 10. The court
held that it was because the evidence offered demonstrated
that the law conferred “a clear competitive advantage to
‘small’ wineries, which includes all Massachusetts’s wineries,
and creates a comparative disadvantage for ‘large’ wineries,
none of which are in Massachusetts.” Id. at 11 (citing Bal-
dacci, 505 F.3d at 36-37). Thus, the evidence adduced by
Family Winemakers demonstrated that the effect of Massa-
5522 BLACK STAR FARMS v. OLIVER
chusetts’s law was “ ‘to cause local goods to constitute a
larger share, and goods with an out-of-state source to consti-
tute a smaller share, of the total sales in the market.’ ” Id. at
10 (quoting Exxon Corp. v. Governor of Maryland, 437 U.S.
117, 126 n.16 (1978)).
[8] The short answer to Family Winemakers is twofold.
First, the Arizona statute does not force “large” winemakers
into a restrictive method of distribution in comparison with
“small” winemakers. The restrictive method of distribution —
the three-tier distribution system — already existed. The Ari-
zona statute freed all small wineries, whether located in-state
or out-of-state, from that restrictive method of distribution.
Second, the plaintiffs in that case, unlike the plaintiffs here,
had evidence to prove their contentions. We reiterate Judge
Murguia’s correct analysis:
Arizona’s gallonage cap exception does not restrict
the flow of interstate commerce in favor of in-state
wineries and in effect opens up the State’s wine mar-
ket to allow more out-of-state wineries than in-state
wineries to take advantage of Arizona’s gallonage
cap exception and directly ship to Arizona consum-
ers.
Plaintiffs must offer substantial evidence of an
actual discriminatory effect in order to take advan-
tage of heightened scrutiny and shift the burden of
proof to the State; but such evidence is absent here.
Plaintiffs have offered no indication that Arizona’s
in-person and [small winery] exceptions create a
market under which local goods constitute a larger
share, and goods with an out-of-state source consti-
tute a smaller share, of the total sales in the market.
The mere fact that more out-of-state wineries than
in-state wineries are required to adhere to Arizona’s
three-tiered distribution system is not by itself suffi-
cient to establish that Arizona’s statutory scheme is
BLACK STAR FARMS v. OLIVER 5523
patently discriminatory in effect against interstate
commerce. That fact at best supports the contention
that Arizona’s statutory scheme places an incidental
burden on interstate commerce. If the Court were to
find otherwise, then no distinction would exist
between statutes that are patently discriminatory in
effect and those that are subject to the incidental bur-
den test under the Pike analysis. This Court is not
inclined to abolish that distinction.
Black Star Farms, LLC, 544 F. Supp. 2d at 928.
Granholm, Black Star Farms’s primary case authority, does
not support its arguments. In Granholm, “[o]ut-of-state win-
eries [in Michigan], whether licensed or not, face[d] a com-
plete ban on direct shipment.” 544 U.S. at 473-74. Such is not
the case here. As for New York, in-state licensed producers
could ship directly from their wineries to their customers, but
out-of-state wineries were required to “open a branch office
and warehouse in New York.” Id. at 474. The Court opined
that “New York’s in-state presence requirement runs contrary
to our admonition that States cannot require an out-of-state
firm ‘to become a resident in order to compete on equal
terms.’ ” Id. at 475 (quoting Halliburton Oil Well Cementing
Co. v. Reily, 373 U.S. 64, 72 (1963)). Arizona’s laws do not
approach this level of discriminatory effect. The district court
was correct in its observation that in Granholm, “the excep-
tions in effect allowed only in-state wineries, to the exclusion
of all out-of-state wineries, to bypass the states’ three-tiered
distribution system and ship directly to consumers.” Black
Star Farms, LLC, 544 F. Supp. 2d at 920.
Finally, we agree with Judge Murguia that “[n]othing in
Granholm suggests that the Supreme Court was concerned
about equalizing the inherent marketing advantage that
accrues to in-state wineries because of their close proximity
to a state’s consumers.” Id. at 925.
5524 BLACK STAR FARMS v. OLIVER
D.
The “In-Person” Exception
[9] Again, for dormant Commerce Clause purposes, “ ‘dis-
crimination’ simply means differential treatment of in-state
and out-of-state economic interests that benefits the former
and burdens the latter.” Or. Waste, 511 U.S. at 99 (emphasis
added). As the Supreme Court explained in Granholm, “[i]f
a State chooses to allow direct shipment of wine, it must do
so on evenhanded terms.” 544 U.S. at 493. Black Star Farms
seems to suggest that Granholm presents States with only two
choices in regulating the direct shipment of wine from win-
eries to consumers: (1) prohibit all direct shipment of wine,
or (2) allow all wineries to ship directly to consumers without
any restrictions that might incidentally burden out-of-state
wineries, such as an in-person purchase requirement. We dis-
agree. Instead, we read Granholm to permit States to limit
direct shipment from wineries so long as the limitations treat
in-state and out-of-state wineries in the same manner, see id.
at 474, and do not impose new burdens on out-of-state win-
eries, see Hunt, 432 U.S. at 351.
[10] Arizona’s in-person purchase requirement does not
discriminate against out-of-state wineries. The requirement
treats in-state and out-of-state wineries the same — there is no
“differential treatment.” See Or. Waste, 511 U.S. at 99. The
direct shipment of wine under a direct shipment license —
whether by an in-state or out-of-state winery — is subject to
the in-person purchase requirement, regardless of the state in
which the winery is found, including Arizona. Ariz. Rev. Stat.
§ 4-203.04(J). This requirement does not impose any new
burden on out-of-state wineries. See Granholm, 544 U.S. at
474 (explaining that the New York statute imposed a new bur-
den on out-of-state wineries by requiring them to open a new
location in New York); Hunt, 432 U.S. at 351 (explaining that
the North Carolina statute imposed a new burden on out-of-
state apple growers by requiring them to remove state quality
BLACK STAR FARMS v. OLIVER 5525
labels from apples shipped to North Carolina). As the First
Circuit explained, “[a]n effect is not discriminatory, in viola-
tion of the dormant commerce clause, if it results from natural
conditions.” Baldacci, 505 F.3d at 38 n.7.6 We agree. In addi-
tion, Black Star Farms adduced no evidence that the in-person
exception causes wine produced by Arizona wineries to con-
stitute a larger share of the total sales in the market. “[T]he
mere fact that a statutory regime has a discriminatory
potential is not enough to trigger strict scrutiny under the dor-
mant commerce clause.” Id. at 37. A de minimis benefit to in-
state wineries is also insufficient to trigger strict scrutiny. See
id. at 38-39; Brown & Williamson Tobacco Corp. v. Pataki,
320 F.3d 200, 216 (2d Cir. 2003); see also Baude v. Heath,
538 F.3d 608, 612 (7th Cir. 2008), cert. denied, 129 S. Ct.
2382 (2009) (upholding an Indiana statute that required con-
sumers who wanted to receive direct shipments of wine from
a winery — whether located in state or out of state — to visit
the winery and supply proof of age). We must affirm the dis-
trict court’s order granting summary judgment to the defen-
dants. But see Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d
423, 432-33 (6th Cir. 2008) (holding that Kentucky’s in-
person purchase requirement for direct shipment of wine dis-
criminated against interstate commerce because the plaintiffs
presented evidence that the requirement favored in-state win-
eries and burdened out-of-state wineries).
[11] Accordingly, the district court’s award of summary
judgment in favor of Arizona’s director of its Department of
Liquor Licensing and Control shall stand.
6
In Baldacci, the plaintiffs challenged a Maine statute that permitted
wineries that produced no more than 50,000 gallons of wine per year to
sell directly to consumers who were physically present at the winery. 505
F.3d at 31. Unlike Arizona’s in-person exception, the Maine statute did
not permit wineries to ship the wine to the consumer; the consumer was
required to transport the wine himself. Id. The First Circuit held that the
plaintiffs failed to carry their burden of showing that the requirement was
discriminatory in effect. Id. at 35. This holding supports our conclusion
that in-person purchase requirements do not discriminate against out-of-
state wineries.
5526 BLACK STAR FARMS v. OLIVER
V
NEW ARGUMENT RAISED ON APPEAL
Black Star Farms attempts to raise a new argument on
appeal. Black Star Farms contends the Arizona statutes are
unconstitutional because they directly regulate interstate com-
merce. See NCAA v. Miller, 10 F.3d 633, 638-39 (9th Cir.
1993) (holding unconstitutional a Nevada statute that had the
effect of directly regulating interstate commerce). Because
Black Star Farms did not raise this issue before the district
court, we decline to address it here. See AlohaCare v. Hawaii
Dep’t of Human Servs., 572 F.3d 740, 744 (9th Cir. 2009).
VI
CONCLUSION
We affirm the district court’s order denying Black Star
Farms’s motion for summary judgment and granting Arizo-
na’s cross-motions for summary judgment.
AFFIRMED.