Judge Allows Lawsuit Challenging Virginia Happy-Hour Rules to Proceed

A D.C.-area restaurateur can move ahead with his lawsuit seeking to water down Virginia's restrictive rules on happy-hour advertising after a judge's ruling Friday.

Lawyers with Attorney General Mark Herring's office argued unsuccessfully at a hearing in federal court in Alexandria that Geoff Tracy's lawsuit against the state Alcoholic Control Board should be tossed out.

Tracy, who operates Chef Geoff's restaurants in Tysons Corner, as well as restaurants in Maryland and the District of Columbia, filed the suit earlier this year. He says the rules that bar him from advertising drink specials during happy hour restrict his free-speech rights and hurt his business.

Virginia liberalized its rules slightly in 2014 to allow bars to advertise the fact that they offer a happy hour and the hours it is in place. But bars are still prohibited from advertising the prices of discounted drinks. That prevents Tracy from advertising his $7.50 peachy keen sangrias or half-price bottles of wine on Wednesdays.

Anna Birkenheier, a lawyer for the attorney general's office, said states have "a well-established authority to determine how alcoholic beverages are used within their boundaries." She also questioned whether Tracy had standing to sue because she said he cannot show how he has been specifically harmed by the rules.

Tracy, in an interview after the hearing, said he decided to file the lawsuit because the rules present "sort of a general annoyance." He said that while it's hard to quantify with precision how much the rules cost him, he is certain it hurts his bottom line.

He said Virginia's rules are more restrictive than those he faces in Maryland and the District of Columbia, and that the rules cause him confusion. For instance, he has a newsletter he emails to tens of thousands of customers at all three of his restaurants. If he wants to let his customers know they can get a $5 glass of pinot grigio during happy hour, he said the rules lack clarity about what constitutes an advertisement and how he has tailor his remarks.

In court papers, Tracy's lawyers with the Sacramento, California-based Pacific Legal Foundation said the state's rules are "paternalistic" and unconstitutional under the First Amendment.

"In Virginia it's perfectly legal for businesses to offer happy hour — it's just not legal for them to talk about it," said lawyers Anastasia Boden and Thomas Berry.

U.S. District Judge Anthony Trenga rejected the state's motion to dismiss after Friday's hearing, meaning the case moves forward. But the state could still prevail at the summary judgment stage, or at trial.

The ABC board did not return a call Friday seeking comment.

Copyright AP - Associated Press
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