Moonshine is not often in the news, what with all the other legal and illegal intoxicants that have come on the market since Prohibition. But here in Spartanburg there is moonshine.
Moonshine can be dangerous. An improperly distilled batch can blind or poison the drinker with methanol. That’s the danger. Some people would say that’s the spice. As much as it is illegal and rightly regarded with caution, there is a popular affection for it, if only as a topic of discussion. Moonshine is always good for a joke. Its also probably the oldest alcoholic product. And every culture has it: rakija, trago, pontikka, lao lao, katchasu, etc. Its even legal someplaces, but everywhere it has the same hell-raising reputation.
Earlier this month, Earl Fletcher Kelly of Enoree, SC, a semi-retired prison guard, was arrested following a search of his property and accused of Possession of Distillery Apparatus and Possession of Non Tax Paid Liquor, punishable by six months in jail and or $600 in fines for the first offense.
I don’t know a thing about this case or the people involved other than what I’ve read in the papers. My curiosity was sparked by the State Law Enforcement Division’s photograph of the liquor stash.
The first thing I noticed was that the liquor is of different colors, meaning it appears to have been treated late in the production process, not just poured out of a radiator. Some may be ciders, or flavored homemade whiskeys, produced in small batches like in a boutique liquor. The demand for a refined product is real, at least, or else all the jars would simply be clear ‘shine.
The second thing I noticed is how little product there really was.
Kelly is being charged under a state statute, but of course, home distillation of alcohol is illegal under Federal law under the Internal Revenue Code of 1986 Section 5178(a)(1) (sometimes still referenced under Section 2801(e)(2) of the 1939 Internal Revenue Code):
No distilled spirits plant for the production of distilled spirits shall be located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house, or on board any vessel or boat, or on premises where beer or wine is made or produced, or liquors of any description are retailed, or on premises where any other business is carried on (except when authorized under subsection (b)).
–TITLE 26, Subtitle E, CHAPTER 51, Subchapter B, Sec. 5178. Premises of distilled spirits plants
Exceptions may be granted by the Secretary of the Treasury in the case of businesses only, not home production. Or boats. An unbelievably detailed Congressional discussion from 1954 concerning legislative intent underlying changes to the tax code for liquor can be found here: http://bulk.resource.org/courts.gov/juris/j1346_04.sgml. You don’t have to read the document to get the gist of the discussion. The fact that alcohol is regulated by the tax code tells you that the interest is in the tax revenue generated by corporate production and distribution of alcohol, not in the health or moral effects of private production for consumption.
This government interest in taxing liquor goes back to the earliest days of the Republic, when tariffs and taxes on goods were the only way to supply the Treasury. In 1791, the newly federalized government put down the Whiskey Rebellion raised by farmers of Western Massachusetts who wanted to distill at home without paying a tax on the product. Regulation finally culminated in Prohibition, of course, which cleared out all the small market producers and centralized the surviving firms.
Although the repeal of prohibition explicitly legalized home wine-making, the home production of beer was illegal in the United States even after Prohibition until a 1978 revision in Title 26 United States Code, Subtitle E, Chapter 51, Subchapter A, Part I, Subpard D, Section 5053 (e), Exceptions created exemptions for “family use”. You may make 100 gallons of beer per year for your personal consumption as the lone adult in a household, but only 200 gallons for two or more adults. Of course, states may pass their own laws regulating alcohol, and apparently Alabama still disallows home brewing. But most jurisdictions permit it. This is obviously not the case for home distilling, which is illegal everywhere.
Representative Bart Stupak, Democrat, of Michigan’s 1st Congressional District (northern Michigan and the Upper Peninsula) submitted a bill back in the 106th Congress that would have “amend[ed] the Internal Revenue Code of 1986 to allow distilled spirits to be produced in dwelling houses, other connected structures, and certain other premises.” The bill was cosponsored by Rep. David Camp, Republican of Michigan’s 4th Congressional District, but H.R. 3602 never made it out of the House Ways and Means Committee. The following year, Stupak resubmitted the bill as H.R. 2349 in the 107th Congress, with no better results.
Strupak is still in Congress and he is not giving up. On October 23, 2007 he submitted H.R. 3949, with the same language, with the same purpose of legalizing the home distillation of alcoholic spirits. Unless the bill is attached as a rider to the $70 Billion bank bailout, it will never get through Congress. In the current anti-earmark environment, I’d consider passage unlikely.
House Ways and Means Chair Charlie Rangel should answer to the moonshine lobby for his inaction. Or maybe he heard from Stupak already and found the pressure tolerable. Stupak has a better chance of getting passage for his more recent bill celebrating the end of Prohibition.
There is no movement to legalize moonshine, but plenty of curious people decide to distill liquor. Chow ran an article late last year about cooking mash “White-Collar Moonshine: The urban gourmet gets into home distilling” This is rehabilitation at the level of bourgeois foodies. That’s a start on a new reputation, but there’s a long way to go for a product generally associated with drunken hillbillies. Probably nobody ever thought about moonshine without seeing the image of a flop-hatted man in an overall falling off a porch.
So the illegality of home distilling at the Federal level seems pretty air tight. Although it is possible to find people on the internet selling distilling kits, the There is a lot of misinformation about home distillation on the internet, so much so that I despaired of entirely figuring out the legality of home production. It is possible to buy moonshine kits from online retailers like Mile Hi Distilling, but something is not four square about a business where they warn you about ripoffs before showing you the merchandise. Also the first page of Mile Hi’s website contains this sublime search bait:
For the best alcohol still and Moonshine stills, Turbo yeast, stills and turbo yeast also stills with moonshine stills and alcohol stills to go with moonshine still. Song of the day: My ‘Old Moonshine still. Moonshine stills at this turbo yeast see the still with moonshine still after the stills you get moonshine to go with still but trust the turbo yeast. If you see a still you can get moonshine stills with turbo yeast. For copper moonshine still, don’t see moonshine still Just wait for moonshine stills, if you see the moonshine still with moonshine stills run with moonshine and the stills. Still make moonshine because it turbo yeast for moonshine so making moonshine with a still is fuel alcohol so you get 95% moonshine with a still so moonshine on. And go with alcohol still turbo yeast with 48hr and 24hr turbo yeast.
That’s insane enough to make you forget that one of the purposes of distilling your own alcohol could be to produce your own ethanol fuel, just like the government. The apparent online community in the forums of http://homedistiller.org/ seems like a better place to start for those sufficiently interested in distilling per se.
Back to the law. Mr. Kelly appears to be charged under SC Code of Laws SECTION 61-6-4100. Distilleries. (way down the page here: www.scstatehouse.net/CODE/t61c006), which reads in part:
It is unlawful for a person in this State to manufacture, sell, give, or have in his possession a distillery, commonly called a still, or any integral part of a distillery, or an apparatus, appliance, device, or substitute therefor to be used for the purpose of manufacturing alcoholic liquors, in violation of the laws of this State.
The unexplained possession of any part of a still, apparatus or appliance, or any device or substitute therefor, commonly or generally used for or that is suitable to be used in the manufacture of prohibited alcoholic liquors is prima facie evidence of the violation of this section.
The statute is not concerned with tax revenue, but with the ownership of a still itself. There does not appear to be a personal use exception in the statute, and it is doubtful whether the “unexplained possession” language of the statue might be satisfied by a personal use argument, since an ‘explained possession” probably refers to a legal distillery. I think the controlling case for the “unexplained possession” language is Bollenbach v. United States, 326 U.S. 607 (1946). Bollenbach concerns stolen goods, not illegal liquor, but the basic logic that if you can’t explain something without referencing an illegality, then you can’t explain it legally, would still apply.
The report in the Herald-Journal states that SLED “uncovered approximately 58 quarts or 14.5 gallons of the illegal liquor behind a hidden wall”. A Spartanburg jury might find 14.5 gallons a believable “personal use” stash for a man to share with his friends. However, the jury is not being presented with that question. According to the language of the statute, the state has only to show that the Defendant possessed a still.
And he could still be charged for tax evasion for production of any distilled spirits under the Federal code.
There is a mass of law weighing down on this small corner of human drunkenness and very little interest in addressing it. I’m not going to take this any farther myself. Generally speaking though, the social shame of drunkenness would be enough to control this particular product. Enough social control has been extended through law that it would be refreshing to see how people handled the discretion.
I better lay off before develop a reputation. But do contact Rep. Stupak and let him know that you support H.R.3949 : To amend the Internal Revenue Code of 1986 to allow distilled spirits to be produced in dwelling houses, other connected structures, and certain other premises. Or if you oppose the bill, why not do something positive and lend some aid to the newly resurgent Prohibition Party?
- The legend of Popcorn Sutton: http://globalcopywritingservice.com/?page_id=152
Posted on October 18, 2008, in regionalisms and tagged Bollenbach v. United States, boutique liquor, David Camp, Earl Fletcher Kelly, Enoree, entrepeneurship, Internal Revenue, Internal Revenue Code of 1986 Section 5178(a)(1), moonshine, Popcorn Sutton, Possession of Distillery Apparatus, Premises of distilled spirits plants, prohibition, Prohibition Party, Spartanburg, State Law Enforcement Division, Whiskey Rebellion. Bookmark the permalink. 7 Comments.