It’s 5pm and you’re drained. Work today was brutal. Your boss yelled at you, your colleague Nancy “forgot” to complete her part of the big report that was due, and the only other person around here who does any work is out on vacation for two more weeks. So, yeah, brutal. But then you remember. You’ve made it. You’ve fought the good fight and arrived at the most glorious part of the day. That’s right, it’s happy hour time. Today is Thirsty Thursday at the local bar down the street–which means $1 margaritas and all-you-can-eat nachos–and you’re meeting your best friend there in 20 minutes. A calm immediately washes over you. The dreariness of the day subsides. You break into a grin. Because if there’s anything more awesome than a delicious libation after a long day at work, it’s a cheap delicious libation after a long day at work.

It may seem like the least-controversial take of all time: Happy hour is awesome. But, as much as we consumers might view drink discounts as one of our god-given, inalienable birthrights as an American, not everyone is on the same page. Especially if you live in the wrong place. If you’re in Albuquerque, New Mexico, for instance, that $1 margarita would be illegal. Same thing if you’re heading to the bar in Raleigh, North Carolina. Or Boston, Massachusetts. In Richmond, Virginia, you might not even know the deal existed. But how come? Well, brace yourself, because it’s time to talk about the War on Happy Hour.

Tune in to episode three of The Right to Drink, where booze expert and host Jarrett Dieterle explains why some states allow happy hour and others don’t – and the fight to change that.

(Subscribe to The Right to Drink on Apple PodcastsSpotify, by RSS feed or search for it wherever you listen to podcasts. It’s brought to you by the R Street Institute and DrinksReform.org.)

Transcript:

Jarrett Dieterle:

It’s 5pm and you’re drained. Work today was brutal. Your boss yelled at you, your colleague Nancy “forgot” to complete her part of the big report that was due, and the only other person around here who does any work is out on vacation for two more weeks. So, yeah, brutal. But then you remember. You’ve made it. You’ve fought the good fight and arrived at the most glorious part of the day. That’s right, it’s happy hour time. Today is Thirsty Thursday at the local bar down the street–which means $1 margaritas and all-you-can-eat nachos–and you’re meeting your best friend there in 20 minutes. A calm immediately washes over you. The dreariness of the day subsides. You break into a grin. Because if there’s anything more awesome than a delicious libation after a long day at work, it’s a cheap delicious libation after a long day at work.

Jarrett Dieterle:

It may seem like the least-controversial take of all time: Happy hour is awesome. But, as much as we consumers might view drink discounts as one of our god-given, inalienable birthrights as an American, not everyone is on the same page. Especially if you live in the wrong place. If you’re in Albuquerque, New Mexico, for instance, that $1 margarita would be illegal. Same thing if you’re heading to the bar in Raleigh, North Carolina. Or Boston, Massachusetts. In Richmond, Virginia, you might not even know the deal existed. But how come? Well, brace yourself, because it’s time to talk about the War on Happy Hour.

I’m Jarrett Dieterle, author of Give Me Liberty and Give Me a Drink, and this is The Right to Drink.

(singing)

Jarrett Dieterle:

Hey everybody and welcome to the show where we talk about drinking and everything that gets in the way. Today, we’re taking a metaphorical road trip to Virginia, New Mexico, and Massachusetts to talk about what happens when happy hour becomes, well, less than happy.

Jarrett Dieterle:

Our trip starts in Northern Virginia in 2009, when a man named Geoff Tracy decided to open a restaurant in an area called Tyson’s Corner. Chef Geoff, as he’s known, was already a very successful restauranteur by this point, owning several well-regarded establishments in nearby Washington, D.C. and Maryland. But as experienced as he was, crossing over the border into Virginia for his newest restaurant proved trickier than he’d imagined. That’s because Virginia had something that neither DC nor Maryland had: a government that effectively outlawed happy hour.

Jarrett Dieterle:

You see, a longstanding state law prohibited restaurants from advertising drink specials. This meant that Chef Geoff wasn’t allowed to publicly promote happy hours at his new restaurant. He couldn’t even have any exterior signs at his restaurant with the words “Happy Hour” on them. To be clear, the drink specials themselves weren’t illegal. Geoff just couldn’t tell his customers about them without running afoul of the law. Geoff Chef refused to back down, however, and started to push for change. And 5 years later, in 2014, Virginia’s lawmakers surprisingly decided to listen. Well, sort of.

Jarrett Dieterle:

They let Chef Geoff and his fellow Virginia restaurant owners use phrases like “happy hour at 5pm” or “drink specials” in their advertising, but they still couldn’t actually tell their customers what the specific specials were. This meant they couldn’t say something as simple as “$3 beers from 5 to 7” or “$1 margaritas every Wednesday.” The government even said that using catchy phrases like “Wine-Down Wednesday” or “Sunday Funday” was off limits.

Jarrett Dieterle:

Geoff wasn’t exactly satisfied with this timid reform, but the prospects for bolder change seemed pretty unlikely. The legislators, having decided that they “fixed” the problem, moved on. They lost interest in the issue and started ignoring Chef Geoff.

Jarrett Dieterle:

But a few more years down the road, in 2018, Chef Geoff got a call out of the blue from a woman named Anastasia Boden. She said she worked at a nonprofit public interest law firm called the Pacific Legal Foundation, and in her opinion Virginia’s ban on happy hour advertising was blatantly unconstitutional. After all, any law that prohibited a business from speaking about or advertising a legal product or deal was a law that restricted that business’s basic First Amendment rights.

Jarrett Dieterle:

Anastasia wanted to know if Chef Geoff would be interested in joining forces to challenge Virginia’s law in federal court. He was, and by March of that year, the battle was on.

Anastasia Boden:

My involvement with this case started because I was a Washingtonian at one point, like you, and, uh, I knew of the law and I thought it was silly. I would walk down the streets of Virginia and see the billboards that said happy hour, 7:00 PM. And I thought, Hmm, that’s uh, that’s boring. And I always had an interest in challenging the law…

So when I went a little bit of a Google rabbit hole about it, I saw that chef Geoff Tracy… He had been very outspoken about this law and in fact, he had written some sort of tongue in cheek tweets about it saying, you know, I’m not allowed by Virginia law to tell you this, but, we’re having happy hour. I think he said something like: it would be illegal for me to tell you that my happy hours tonight at 7:00 PM and my drinks are this amount. So I thought that was kind of funny. And I had been to Chef Geoff’s myself before Georgetown basketball games. So I just rang him up and I said, would you be interested in being a client? And he was very enthusiastic about it because he felt passionately that this silly law was wrong and was inhibiting his free speech.

Jarrett Dieterle:

Anastasia and Chef Geoff were off and running. But they had no idea how rocky the road ahead would be. While all lawsuits are contentious–after all, that’s kind of the point–the way the Virginia government reacted in this case was the equivalent of throwing a legal temper tantrum:

Anastasia Boden:

We filed this case, we had no idea that it was going to become the war that it was with the Attorney General’s office. I mean, I’m having posttraumatic stress just talking about this because it was truly one of the hardest fought legal battles that I’ve had. And we filed in the Eastern district of Virginia, we filed in federal court, and the government immediately moved to dismiss the case. So we thought, okay, they’re not even going to answer the complaint. They’re not even going to let us go to discovery. They already want to fight about it on some technical procedural ground. They’re really serious about this. And in fact, you know, we were able to overcome that motion to dismiss. And after that, we found out that they wanted to hire an expert. They wanted to hire an expert at $300 an hour to prove their claim that this law was so necessary for Virginians. So we knew that it was going to be a battle…

They engaged in discovery requests. They asked our client to provide documents about every item he had sold in the past several years by hour in each of his restaurants. And he owns many restaurants, many of which are not in Virginia and had nothing to do with this case. We were just diluted with these document requests and it was extremely onerous.

Jarrett Dieterle:

But then Anastasia got clever. Sensing that the happy hour advertising ban was already tremendously unpopular with Virginians–and as a Viginian, I can attest that, yeah, it was–she took to the court of public opinion. If the state was going to use taxpayer dollars to hire expensive experts at $300 an hour and pay state attorneys to spend hours playing document-request games, then why shouldn’t the public know about it?

Anastasia Boden:

And so we started publishing op-eds about it. We just went to the Washington Post and we wrote a little article and we said, this is how they’re handling this.

And, uh, that really upset the attorney General’s office. They didn’t like it. And I understand why it’s, I think they found it a little bit embarrassing, but what’s embarrassing was their behavior.

Jarrett Dieterle:

Here’s where it gets weird, though. While Virginia government officials were making Anastasia’s and Chef Geoff’s life hell, they were also clandestinely preparing for an unconditional surrender. To the judge in the lawsuit, they were saying “this law is extremely important and must stay.” But in private, they were meeting with Virginia lawmakers and begging them to pass a bill that would repeal the state’s ban on happy hour advertising. And it wasn’t hard to convince those legislators–who themselves were tired of having to defend the law–to go along: In early 2019, a repeal bill sailed through the state legislature. It passed 40-0 in the state Senate and 94-2 in the state House.

Just like that, happy hour was set free in Virginia. Advertisements started popping up promising those $1 margaritas and $10 game day beer bucket specials. The people rejoiced. But the victory still rang a little hollow for Anastasia:

Anastasia Boden:

You know, Chef Geoff’s happy, I’m happy. I’m glad that Virginia is a freer place and a better place to do business now because of our lawsuit. But the unfortunate part about it is that by passing this repeal bill, they mooted our case, and now they’re free to go do it again in the future and in any, any other form to, you know, it doesn’t have to be a happy hour law, but the same issue now is out there, can Virginia do this? And we don’t have a court order saying they can’t. And we were deprived of that because behind our backs, they were lobbying for this repeal bill. And so it’s a, it’s a bittersweet one.

Jarrett Dieterle:

A bittersweet victory, but a victory nonetheless. Which is more than can be said in some other states, where the tradition of prohibiting happy hour shows no signs of going away anytime soon. We’ll crank it up a notch by heading to New Mexico and Massachusetts to talk about how they treat happy hour next.

[AD BREAK: If you’re interested in the things we’re talking about on today’s podcast, be sure to check out my new cocktail book, Give Me Liberty and Give Me a Drink!, which provides a rollicking, recipe-packed tour of America’s most insane and laughable booze laws. Give Me Liberty and Give Me a Drink is available from all major and independent bookstores. Also be sure check out DrinksReform.org, a website and weekly newsletter from the R Street Institute, which covers the intersection of alcohol and our legal system.]

Jarrett Dieterle:

It’s one thing when a law restricts the ability to advertise and talk about an activity. In those situations, like in Virginia, the First Amendment can ride to the rescue. But it’s tougher when a law forbids that activity in the first place. That’s what states like New Mexico do.

Jarrett Dieterle:

When Applebee’s recently announced plans to roll out $1 “Dollaritas”–as glorious an example of unabashed, but also kinda gaudy, American capitalism as there ever was–they had a problem. They couldn’t serve their Dollaritas in New Mexico, which forbids restaurants from discounting drinks to less than half their “normal” cost. So there may be many advantages to living in New Mexico–warm weather, gorgeous landscapes–but access to Dollaritas is not one of them.

Jarrett Dieterle:

For its part, Massachusetts skips the complicated calculations on what level of discount is too much, and just bans happy hour discounts entirely. While towns like Boston are known as boisterous, fun-loving, easy-drinking cities, it’s the restaurants and bar owners who are hit hardest by the Bay State’s blanket ban on drink specials.

Jarrett Dieterle:

Take Sam Treadway, co-owner and bar manager of Back Bar. Sam was crowned the “best bartender in Boston” by Boston Magazine, and Back Bar is without a doubt one of the best craft cocktail joints in the city. For Sam, like many Massachusetts bartenders, the happy hour ban creates a lot of unintended consequences:

Sam Treadway:

So I’ve worked in Massachusetts, uh, on and off for 15 years. I’ve also worked in Minnesota, Seattle, uh, and Hawaii. And so I definitely recognize that happy hour is a super useful, you know, selling point. You can discount alcohol just a tiny bit, but people get that idea in their head that like, Oh, this is a little cheaper? Heck yeah, let’s go. And it’s just like, it’s a big draw. And especially when you’re trying to do anything and everything to spread out business so that you don’t, you’re a Friday night, everyone wants to come at like 9:00 PM. Well, it’d be really nice if half of those people were there at 6:00 PM or earlier. Um, so for sure it is something that is incredibly useful and incredibly frustrating that we can’t do in Massachusetts.

Jarrett Dieterle:

Sam’s point that bars use happy hour to spread out and diversify when they’re busy is a good one. If you serve great food and drinks at your restaurant, you can probably expect that you’re going to get a nice crowd around 6 or 7. But without happy hour, how many people can you reasonably expect to show up at 4? And for some bars, happy hour is one of their key money-makers during a given week:

Sam Treadway:

Some bars or restaurants are using happy hour as just like a gimmick to drive a little bit of extra sales, um, during their slow times. And other bars like really thrive on it, where that is like where they do the majority of their sales is during these. Um, just kind of in times, I mean, I worked at a bar where, uh, Monday nights was half price bottle of wine night. Um, and w it was in a college town and it was just hysterical how busy we were on Mondays.

But that like generated a huge amount of sales on a Monday. And that like was a stapled that if we didn’t have those sales, that would be a problem. Cause of course, you know, people have to stick around for a while drinking a bottle of wine, and then they inevitably are ordering food and it becomes like, you know, a big night of sales.

Jarrett Dieterle:

When those types of sales-drivers get cut off from a restaurant–which already has notoriously razor thin margins–it can become hard to make the math work. In Massachusetts, this has led some establishments to desperately seek creative ways to replace the happy hour-shaped hole in their business model:

Sam Treadway:

There are a lot of workarounds that bars do. There are things, like for me, we have done food specials, we’ve done on and off doing food specials, like from 4:00 PM to 6:00 PM, you can get blank food item that you can’t get any other time. And that, you know, is it a draw? We also did something called genius hour, which was free wifi at four o’clock. So trying to advertise like, Hey, come in with your laptop, finish your work day and start drinking. Um, so that’s like a cutesy little way of like trying to promote happy hour. But honestly, none of them, they all pale in comparison to the drink specials that people really associate with happy hour.

Jarrett Dieterle:

Other, shall we say “less scrupulous” bar owners than Sam, push the boundaries even more. The language of Massachusetts’ law says that you can’t sell alcohol for different prices at different times, but some places–and we’re not gonna name names here, since that’s not our style–get around this by, for example, permanently offering a certain beer for $1. And then they just “happen” to be out of it at all times except 4-6pm on weekdays.

Jarrett Dieterle:

So, here we can see another problem with a law like Massachusetts’ happy hour ban. When you have a hard-to-enforce rule that applies to thousands and thousands of businesses and people spread throughout a state, you’ll always have varying degrees of compliance. And the honest bar owners like Sam will try to play by the rules, while the shadier operators will see what they can get away with–which creates an uneven and unfair playing field for everyone.

Jarrett Dieterle:

But if Massachusetts’ law wreaks so much havoc for drinkers and restaurateurs alike, why does it exist? Is it just some legal relic from long-ago that never got taken off the books? Surprisingly, unlike most silly alcohol laws–and most of the ones we discuss on this show–Massachusetts’ happy hour ban is fairly recent.

Jarrett Dieterle:

The state officially implemented the rule in 1984, and the putative reason, at the time, was that it was a response to a tragic and high-profile drunk-driving accident that resulted in fatalities. It goes without saying, of course, that trying to prevent drunk driving is a good thing, and we should want the government to try to protect us from situations where alcohol can cause people to hurt themselves and others. After all, protecting public health and safety is why we form governments in the first place.

Jarrett Dieterle:

But while sensible people can agree that some version of anti-drunk driving laws are important and should exist, Massachusetts happy hour ban hasn’t really had a discernible effect on drunk driving in the state. While drunk driving rates have declined in Massachusetts since the early 80s, they’ve done the same across the entire nation.

Jarrett Dieterle:

Most researchers attribute this nationwide decline to Mothers Against Drunk Driving and similar interest groups raising more awareness about the prevalence of drunk driving starting in the 80s, in conjunction with the federal government increasing incentives and pressure on states to adopt lower blood-alcohol content levels for what constitutes a DUI. The penalties and enforcement resources for punishing drunk drivers also escalated significantly during this time and played a key role.

Jarrett Dieterle:

Today, Massachusetts is still close to tops in the nation when it comes to drivers who self-report that they’ve driven after having too much to drink, and while the state’s rate of alcohol-related traffic fatalities is lower than many other states, it is not significantly different than that of its neighbors like Connecticut and Rhode Island. And they do allow happy hour.

Jarrett Dieterle:

So, in the end, Massachusetts has seen a healthy decline in DUI rates as a result of a nationwide campaign against drunk driving, but it stubbornly maintains a pretty unrelated happy hour ban. And every dollar that goes toward enforcing the happy hour law, is a dollar that is not going toward enforcing the state’s real DUI laws.

Jarrett Dieterle:

It’s a good reminder of a truism when it comes to our convoluted system of alcohol regulation: We should spend more time enforcing the good laws, and less time over-enforcing the silly ones. That would be a win-win. And would make everybody as happy as happy hour itself.

I’m Jarrett Dieterle, and I wrote today’s episode of the show. Our show is produced and edited by Greg Benson, host of The Speakeasy and Back Bar, a new podcast coming soon from Heritage Radio Network. The Music is written, produced, and recorded by Jessica Leigh Graves. The cover art for the show was created by Ann Phelan. And I’d also like to thank Bill Gray and the R Street Institute, as well as today’s guests Sam Treadway of Back Bar and Anastasia Boden.

And if you enjoyed today’s show, check out my new book, Give Me Liberty and Give Me a Drink!, as well as DrinksReform.org.

Our next episode will answer the age-old question of why in the hell can’t I get my favorite IPA from Vermont delivered to my doorstep?