Word Games and the Homebrew Debacle

• Patrick Long

You should read this week’s article about the OLCC discovering it had to enforce a long-neglected law that prohibits homebrewers from serving their brew outside their homes.

The law went overlooked until May, when the OLCC asked the state department of justice (DOJ) to clarify the statute in question, which says that homebrewers don’t need a license if they brew “for home consumption and not for sale.” The DOJ proceeded to linguistically analyze the phrase “for home consumption.” What follows is a nitpicking, near-Clintonian analysis of what words mean.

Yesterday the OLCC decided to waive its right to attorney-client confidentiality and release the DOJ’s musings to reporters. We begin with the word “for:”

used as a function word to indicate the person or thing that something is to be delivered to (any letter ~ me) or assigned to (a slot ~ out-of-town mail) or used by or in connection with (are these the tires ~ this car)[.]

The DOJ’s conclusion? “We determine that homebrewers lose their exemption from licensure when the homebrew is consumed outside the home.” So, exactly what the statute originally said. Thanks, guys.

Here’s the whole thing (pdf). Check out a David Foster Wallace-esque footnote after the jump.

1. Act or process of consuming; state of being consumed; waste; decay; destruction * * * 3. The use of (economic) goods resulting in the diminution or destruction of their utilities ; – opposed to production. * * * Consumption may consist in the active use of goods in such a manner as to accomplish their direct and immediate destruction, as in eating food, * * * Generally, it may be said that consumption means using things, and production means adapting them for use.

Webster’s at 483 (1910). While we believe that tasting alcohol is included in the definition of consumption, and that some amount of consumption occurs with tasting alcohol, determining whether or not the word “consumption” includes tasting alcohol is not determinative of the outcome of this advice. In addition, parceling out the quantity of alcohol consumed in a competition tasting in order to determine whether there is “consumption” of alcoholic liquor does not aid us in our analysis. This is because the “consumption” must be read within the text and context of ORS 471.403(1).

To illustrate, if tasting alcohol does include the word “consumption” then “consumption” still must be read within the phrase “for home consumption” and within the context of the statute. For instance, the word “consumption” is limited by the word “home”. The remaining text and context analysis applies, including that the license exemption is focused on the location of the homebrew and that the exemption is read narrowly. The end result is that the exemption does not apply when homebrew is entered into a tasting competition where the homebrew is tasted outside of the home because the consumption is not occurring at home.

On the other hand, if tasting homebrew, limited to swirling the alcohol in one’s mouth and spitting the alcohol out of one’s mouth, is not included in the word “consumption” then consumption is not occurring and the “for home consumption” prong is not met. While one may say that the “for home consumption” prong is met because the home brewer consumes the homebrew at home, the remaining text and context analysis shows that the exemption still does not apply. “[F]or home consumption” is what is specifically contemplated, not tasting competitions, and ORS 174.010 and the narrow nature of the exemption prevent us from including what is not stated. ORS 174.010 (In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.). In addition, the location of the homebrew is the focus of the statute—where homebrew can be made, kept, and, also, consumed. The result if tasting homebrew is not included in the word “consumption” is that the exemption under ORS 471.403(1) does not apply, the Liquor Control Act does apply, and the home brewer must be licensed. This shows that the words cannot be read out of context and that ORS 471.403(1) is not focused on the consumption of alcohol, but that the consumption of alcohol is one part of the analysis of whether the exemption applies.