 "Photo: Elizabeth Nihiser")
An Ohio University professor and the American Civil Liberties Union are challenging the constitutionality of Ohio's Rule 68 — also known as the "five for five" keg rule — in a U.S. District Court.
Rule 68 was established by the Ohio Liquor Control Commision and went into effect Aug. 9, 2000.
The rule requires buyers of five or more kegs of beer or malt beverages to register with the beer distributor five business days prior to the purchase.
The distributor submits a notarized affidavit that provides the time, date, location and name of the person responsible for the party to the Department of Public Safety's Investigative Unit.
The signer of the affidavit must honor requests from agents of the Department of Public Safety's Investigative unit and local police to inspect the premises of the party without a search warrant.
Raymond Vasvari, legal director of the Ohio ACLU, said Rule 68 is "unconstitutional on its face" and "terribly ineffectual" because people can find ways to get around it.
Scott Hooper, associate professor of neurobiology at Ohio University, is the plaintiff in the complaint that names Lt. Gov. Maureen O'Connor (in her official capacity as Director of Public Safety), the Department of Public Safety and the Liquor Control Commission as defendants.
Hooper said Rule 68 rescinds constitutional rights.
"You can never be required — unless you are in the military — to give up one of your constitutional rights," he said. "It is your freedom to be free of illegal searches in return for buying a legal product."
Hooper, 46, said people his age rarely buy five or more kegs of beer at a time.
He said Rule 68 is aimed at students, and those who wrote and enforce it are hypocrites.
"We are talking about people who think they have the right and obligation to tell students how to think and act," Hooper said. "What percentage of college professors, university administrators or law enforcements official — from top to bottom — were members of the Puritan Decency League when they were in college?"
Evan Miller, a junior in business management, agrees with Hooper and said Rule 68 targets students.
"Students are the ones who buy that many kegs for parties," Miller said. "What is unlawful about purchasing alcohol if you are of the legal age?"
Hooper said students have no voice in government and should petition to get Rule 68 on the ballot.
"If students would vote, the state and feds would not dare make you second-class citizens," he said. "The only way to change the law is to elect officials that share your viewpoint."
According to court documents, Hooper visited a southeastern Ohio beer distributor in April 2001 to buy five kegs of beer.
The salesperson informed him that he could not purchase the beer without signing the affidavit in compliance to Rule 68.
Hooper refused to sign, and the ACLU accordingly filed a suit on his behalf against the aforementioned state agencies on May 25, 2001.
The state tried to have the complaint thrown out of court in July.
However, U.S. District Court Judge George C. Smith ruled in Hooper's favor.
"This type of regulation trivializes individual constitutional rights," Smith wrote in his decision.
In addition, the judge wrote Rule 68 has the potential to spawn harsher regulations that could warrant searches of the vehicle in which a six-pack is transported and the premises where it is consumed.
A pretrial conference is scheduled in October at the federal courthouse in Columbus.
Representatives of the Department of Public Safety and Liquor Control Commission declined to comment on Rule 68 because of the complaint.
Hooper, who is also the founder of the Student Civil Rights Union at Ohio University, said the Department of Public Safety's Investigative Unit is a "rogue agency" that "acts as its own police force" when it comes to enforcing Rule 68.
Information obtained from Lt. Sean Finan of the Athens Police Department could be interpreted to support Hooper's claim that the Department of Public Safety's Investigative Unit does indeed act alone — at least in Athens.
"We have never had an affidavit turned in," Finan said. "We have never been notified of a five-keg party by the Department of Public Safety."
Sherry Mercurio, spokeswoman of the Columbus Division of Police, said the state contacts her division for parties with five or more kegs.
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