The TABC Ban on Crowlers Is About to Go to Court

Cuvée Coffee Bar defied TABC over its crowler machine to, "Come And Take It." Unfortunately, they did, with a dozen TABC agents and state troopers in tow.
Cuvée Coffee Bar defied TABC over its crowler machine to, "Come And Take It." Unfortunately, they did, with a dozen TABC agents and state troopers in tow.
Image courtesy of Mike McKim

On September 15, 2015, we told you about Cuvée Coffee Bar, an Austin bar that defied the Texas Alcohol Beverage Commission’s ban on crowlers. A crowler is similar to a growler in that it can be filled with beer for customers to take home. The only difference is that it is shaped like a big, aluminum can and sealed with a special machine. It’s lightweight, cheap and protects the beer from light and air better than a traditional growler, which is made of glass. Based on what Cuvée Coffee Bar owner Mike McKim heard from TABC attorneys at his first hearing, crowlers and growlers alike may be in danger.

When we talked with McKim in September, he said he was told by a TABC agent that he had two options. McKim said, “One, we can wait until the Texas legislative session and try to get the law rewritten or I can just say I disagree with their interpretation. Right now, there is no law defining what a crowler is or isn’t. So, all they’re doing is taking state and federal law and interpreting it, which to me is nonsensical, that you can serve a growler but you can’t serve a crowler. The only way we can have a meeting with [the TABC] and go to court is if they come back and issue a citation.”

However, TABC didn’t just come back and issue a citation. “I assumed they’d just come in and give us our fine, but they didn’t,” said McKim. “They decided to do an undercover investigation and come in and buy crowlers on two separate occasions. Why two, I don’t know. They could have just come in and just asked us, ‘Are you guys still selling crowlers?’ and we would have said, ‘Yes!’”

On September 29, 2015, a dozen TABC agents entered Cuvée Coffee, with Texas State Troopers accompanying them which “shook up the staff,” according to McKim. TABC seized not only the crowler machine but even the empty aluminum crowlers. McKim filed a temporary restraining order against TABC for what he considers an illegal seizure of his property. A copy of Cuvée Coffee Bar's alleged violations is below. 

The hearing on the temporary restraining order was on January 7. McKim says it was for the judge to decide if it had merit and if she had jurisdiction to rule on it. TABC brought five attorneys and two field agents to the hearing. On McKim’s side, it was just him, his attorney and his wife. “It was eye-opening. They are in it to win it. They will not take a loss at this point. It was uncomfortable,” he said.

During the hearing, one of TABC’s attorney said something that McKim believes should be of great concern to anyone involved in craft beer. He said, “When the attorney general was arguing for the TABC — there’s a laundry list of violations that we have — she said one of them was repackaging beer, that as a retailer, we are not allowed to do that and if beer is bought in a keg, it needs to be sold in a keg. So, what she said was that growlers are not legal, either. That should be eye-opening for the craft beer industry, for sure. That’s the corner they are painting themselves into. Because they don’t want to lose this case, they are doing to do anything they can and that could include dismissing growlers.”

Many companies have built a large part of their businesses around growler fills. That includes not only small, specialty retailers that primarily fill growlers but large corporations such as Whole Foods, which builds beer bars in newer stores and offers growlers in most.

At issue is the ability to fill aluminum containers with beer. Traditional growlers have a snap-on or twist-on cap. Crowler machines, an invention that brewer Oskar Blues worked with Ball Manufacturing to create, affix can tops. TABC says that goes over the line and constitutes repackaging beer.
At issue is the ability to fill aluminum containers with beer. Traditional growlers have a snap-on or twist-on cap. Crowler machines, an invention that brewer Oskar Blues worked with Ball Manufacturing to create, affix can tops. TABC says that goes over the line and constitutes repackaging beer.
Photo by Jeremy Farmer

McKim says he’s stopped calling the container in question a “crowler” and is calling it an “aluminum growler” instead because people outside the beer industry — including judges — have no idea what a crowler is. “Even the court reporter was so confused with the terms ‘crowler’ and ‘growler.’ The judge didn’t understand what the difference was and I was like, ‘Yeah, that’s the point. There is no difference.’”

McKim asserts that crowlers are good for the beer industry and consumers alike. “It maintains the integrity of the beer better than any other vessel. For retailers, if someone comes in and says, ‘I love this beer. I want to take some of this home,’ it’s like, ‘Cool. Well, here’s a $15 bottle you can buy for $12 worth of beer.’ Nobody wants to do that. We don’t have a culture where people ride around with a couple of growlers everywhere they go. But when we have crowlers, I can say, ‘Sure, I can give you $12 of beer in a $1 can.’ It’s negligible. So people say, ‘Well, shoot. In that case, give me two, give me three, give me four.’ We sell more beer. The distributor distributes more beer. Everybody wins in that scenario.”

He also points out that in the case of traditional growlers, unless the retailer has a pressure fill system, there’s a lot of beer waste. “You have to volcano all that foam out. With the aluminum growlers, there’s zero waste and the retailer puts more money in his pocket,” he explained.

The judge in last week’s hearing seemed to understand that, and McKim says she said to the TABC attorneys, “I don’t understand why you are punishing people for new technology.” Unfortunately, the judge has so far declined to issue a ruling on McKim’s request for a temporary restraining order. He says that the TABC attorneys pushed the judge not to rule on the request because there's another hearing in the future on their case against Cuvée Coffee Bar.

That hearing is on January 21 at 2 p.m. at Travis County Courthouse, 1000 Guadalupe — provided the first judge who presided over the January 7 hearing doesn't issue a ruling in favor of TABC before then. The hearing on January 21 is on the injunction that McKim filed to get a stay on the administrative case filed all charges against Cuvée Coffee Bar dismissed. “It’s on all the fines [TABC] has imposed on us and the fact that they say the crowlers are not within code. We filed an injunction to get them dismissed because they have no merit,” he said. 

For its part, TABC is actually seeking to revoke Cuvée Coffee’s permit to sell beer, as stated in the hearing notice: “The purpose of this hearing will be to determine if the above allegations are true, and if the allegations are found to be true, the Commission will seek to cancel or suspend the Respondent’s permit.” The next administrative hearing on TABC's case was originally scheduled for January 20, but McKim's attorney, Angel Tomasino, says he's requested a continuance. 

Disagreeing with TABC obviously has some high risk involved, and there is much at stake not only for Cuvée Coffee Bar but for any retailer who fills containers for take-home beer. If the hearing finds that using crowlers constitutes repackaging beer, it takes only a very small step of logic to find that the use of growlers might as well. 


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