Illinois Senate Bill 54 from the state legislature’s last session had a long and tortured history. Despite the fact that I fully support alcoholic beverage retailer delivery and shipping, I criticized the language and sloppy drafting of the various versions of the bill proposed over time during the last session because thoughtfulness in legislative drafting provides clarity and effective rights and sloppy drafting leads to more problems, confusion and improper enforcement. You can read my posts on the problems with various for the liquor delivery bill iterations here, here and here.
The Illinois state legislature passed a version of the bill expanding and clarifying some of the rights of Illinois alcohol retailer licensees to ship and deliver alcohol (liquor, wine, beer) to Illinois residents last week.
Contrary to some reports, the bill that passed did not create the “Third-Party Facilitator” license that had been proposed. The Illinois legislative site is a tad slow in updating. What passed were House Amendments #4 and #5.
The version of the legislation that passed clarifies two rights held by Illinois liquor retailers. Those for shipping and delivery. The new legislation states that nothing in the act limits the right of a retailer licensee to transfer, or ship alcoholic liquor to a purchaser for use or consumption subject to any applicable local law or ordinance, and that nothing limits the ability of a liquor retailer to deliver alcoholic liquor to a purchaser for use or consumption. Prior to the bill, delivery and shipping were not defined, and both were subject to local law or ordinance. Now delivery is not limited in that fashion.
As part of the new act, shipping of alcoholic liquors is now defined as:
For the purposes of this Section, “shipping” means the movement of alcoholic liquor from a licensed retailer to a consumer via a common carrier.
And delivery of alcoholic liquors is now defined as:
For the purposes of this Section, “delivery” means the movement of alcoholic liquor purchased from a licensed retailer to a consumer through the following methods:
(1) delivery within licensed retailer’s parking lot, including curbside, for pickup by the consumer;
(2) delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or
(3) delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.
Under subsection (1), (2), or (3), delivery shall not include the use of common carriers.
The bill mandates that delivery take place within 12 hours of the time the alcoholic liquor leaves the retailer’s premises … “for delivery.” Which is some odd language – when would the alcoholic beverage not leave the retailer’s premises for delivery? Does going some other place impact whether it’s left “for delivery?”
In any event, one issue still remains. The methods of transportation and the use of the term common carrier and restrictions based on that still pose a potential risk for interpretive confusion.
The problem: a distinction made in other parts of the act between common carriers and other companies that perform common carrier services. Quite frankly the fix should be to change those other sections to just read common carrier, as that has a legal definition and some supporting case law that people can look to:
“In Illinois, a common carrier is “one who undertakes for the public to transport from place to place such persons or the goods of such persons as choose to employ him for hire.” Illinois Highway Transportation Company, v. Hantel, 323 Ill. App. 364, 375, 55 N.E.2d 710 (1944). The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike. Hantel, 323 Ill. App. at 375. A common carrier is “one who undertakes for hire to carry all persons indifferently who may apply for passage, so long as there is room and there is no legal excuse for refusal.” Hantel, 323 Ill. App. at 376. A private carrier on the other hand “undertakes by special agreement, in a particular instance only, to transport persons or property from one place to another either gratuitously or for hire.” Jane Doe v. Rockdale School District, No. 84, 287 Ill. App. 3d 791, 794, 679 N.E.2d 771, 223 Ill. Dec. 320 (1997). Further, a private carrier “makes no profession to carry all who apply for carriage” and “is not bound to serve every person who may apply.” Rockdale School District, 287 Ill. App. 3d at 794.
“… In Rockdale, this court addressed the issue of whether a school bus was a common carrier. In that case, the plaintiff was assaulted by another student as he was transported to school. The bus company was operating pursuant to a contract with the school district to transport special education students at an agreed upon rate and for an agreed upon period of time. The contract did not provide for the transportation of any additional passengers or cargo. This court found on appeal that the bus company was not a common carrier because it did not provide services to the general public. The court noted that the bus company neither advertised its services to the general public nor transported indiscriminately all members of the public who applied. The court also noted that the bus company provided a specific service to a specific group of people because it only transported special education students between home and school by specific agreement. In conclusion, the court determined the bus company was acting as a private carrier and not a common carrier when the assault occurred. Rockdale, 287 Ill. App. 3d at 796.”
So there are issues where it appears “common carrier” covers other types of carriage that are elsewhere distinguished. Here are the sections I’m concerned with:
Some parts of the Illinois liquor control act deal in other terms, making it a real question about what a “Common Carrier” is. For example, Section 6-16 dealing with underage deliver uses three separate terms “express company” “common carrier” and “contract carrier”:
No express company, common carrier, or contract carrier nor any representative, agent, or employee on behalf of an express company, common carrier, or contract carrier that carries or transports alcoholic liquor for delivery within this State shall knowingly give or knowingly deliver to a residential address any shipping container clearly labeled as containing alcoholic liquor and labeled as requiring signature of an adult of at least 21 years of age to any person in this State under the age of 21 years.
So does Section 6-29 dealing with the Winery Shipper’s license:
(b-5) The shipping container of any wine shipped under this Section shall be clearly labeled with the following words: “CONTAINS ALCOHOL. SIGNATURE OF A PERSON 21 YEARS OF AGE OR OLDER REQUIRED FOR DELIVERY. PROOF OF AGE AND IDENTITY MUST BE SHOWN BEFORE DELIVERY.”. This warning must be prominently displayed on the packaging. A licensee shall require the transporter or common carrier that delivers the wine to obtain the signature of a person 21 years of age or older at the delivery address at the time of delivery. At the expense of the licensee, the licensee shall receive a delivery confirmation from the express company, common carrier, or contract carrier indicating the location of the delivery, time of delivery, and the name and signature of the individual 21 years of age or older who accepts delivery. The Commission shall design and create a label or approve a label that must be affixed to the shipping container by the licensee.
It’s problematic that the Illinois liquor control act distinguishes contract carriers and express companies from common carriers, as those are usually common carriers. Also, the actual legally applied definition of common carrier from case law (see above) could impact the “delivery” definition as third-party contractors can deliver, but “common carriers” are excepted and cannot be utilized for delivery, however, any third-party contracted for delivery can do so… which is really what a common carrier is absent some open-to-the general-public distinction. So what about a third-party carrier that you’ve contracted with to deliver? Does it matter that the delivery company will contract with anyone to deliver their goods? If they do, they’re certainly common carriers. Does their advertising matter? If they’re on google or in a phone book aren’t they advertising to everyone? What does it mean to have a contract with them? Does having contracting with them take them out of the “common carrier” definition for the purpose of the delivery section? You could argue it does. I would argue that it does. Does it matter if they share a vehicle with other packages/contracted deliveries?
What the statute likely wanted to get at was trying to keep DHL, FedEx and UPS from qualifying for delivery, but not the thousands of other Illinois companies that also offer carriage to anyone willing to pay. But no one “contracts” in the way you think of for shipping. There’s a bill of lading or a shipping manifest and BOOM, you pay, we deliver. That’s a contract. And companies like DHL, FedEx and UPS do that and so do just about every other company that delivers and transports goods regardless of their licensure. They also all put multiple small packages on a single vehicle. It’s how they make money.
Perhaps they meant for “common carrier” to draw some distinction with “contract carrier” – but if so, shouldn’t the statute point out or define where one stops and the other starts?
If you want to remove confusion. Provide a definition of common carrier – you could even cite to another statute or crib some language from distinctions like those between household goods common carriers and household goods contract carriers from the Illinois Vehicle Code:
(13.3) “Household goods common carrier” means any household goods carrier engaged in transportation for the general public over regular or irregular routes. Household goods common carriers may also be referred to as “common carriers of household goods”.
(13.4) “Household goods contract carrier” means any household goods carrier engaged in transportation under contract with a limited number of shippers (that shall not be freight forwarders, shippers’ agents or brokers) that either (a) assigns motor vehicles for a continuing period of time to the exclusive use of the shipper or shippers served, or (b) furnishes transportation service designed to meet the distinct need of the shipper or shippers served. Household goods contract carriers may also be referred to as “contract carriers of household goods”.
Because relying on the case law to provide a definition is going to lead to a lot of interpretation and problems for those looking to steer clear of a “common carrier” and might lead to a loss in business for those that probably meet the definition, but which the state wouldn’t consider common carriers if what they mean is DHL, FedEx and UPS.
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