PHOENIX VINTNERS, LLC, d/b/a TRAVELING VINEYARD, a Massachusetts Limited Liability Company, and MICHAELA ROBINSON, a Wyoming resident, Appellants (Plaintiffs),
DAN NOBLE, in his official capacity as Director of the Wyoming Department of Revenue, GREG COOK, in his official capacity as Administrator for the Wyoming Department of Revenue Liquor Division, THOMAS MONTOYA, in his official capacity as Chief of Enforcement for the Wyoming Department of Revenue Liquor Division, KELLY HUNT, in his official capacity as Senior Compliance Agent for the Wyoming Department of Revenue Liquor Division, and JASON ALLEN, in his official capacity as Compliance Agent for the Wyoming Department of Revenue Liquor Division, Appellees (Defendants).
Certified Question from the United States District Court for
the District of Wyoming The Honorable Scott W. Skavdahl
Representing Appellants: Robert C. Jarosh and Shaina A. Case,
Hirst Applegate, LLP, Cheyenne, Wyoming. Argument by Mr.
Representing Appellees: Peter K. Michael, Attorney General;
Ryan T. Schelhaas, Deputy Attorney General; Karl D. Anderson,
Senior Assistant Attorney General; Adam Leuschel, Assistant
Attorney General. Argument by Mr. Leuschel.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.
The United States District Court for the District of Wyoming
certified a question to this Court concerning the definition
of "sell" or "sale" set forth at Wyo.
Stat. Ann. § 12-1-101(a)(xvi). This question asks us to
determine whether Appellants, Traveling Vineyard and Michaela
Robinson, engaged in the "sale" of alcohol at
in-home wine tasting events. We answer the certified question
in the affirmative.
Does the statutory definition of "sell" or
"sale" in Wyo. Stat. Ann. § 12-1-101(a)(xvi)
apply to the conduct of Traveling Vineyard and its
Independent Wine Guides?
The district court's certification order sets forth the
following facts pertinent to the certified question.
Appellant, Phoenix Vintners, LLC, d/b/a Traveling Vineyard
("Traveling Vineyard"), is a Massachusetts Limited
Liability Company with three federal and state licensed,
bonded wineries. Within the State of Wyoming, Traveling
Vineyard maintains three Direct Shipping permits, one for
each of its wineries, and pays sales tax for each location
under a single tax identification number. The individual
Appellees are employees of the Wyoming Department of Revenue,
Liquor Division (the "Division").
Appellant, Michaela Robinson, is a Wyoming resident and one
of Traveling Vineyard's independent contractors, known as
"Independent Wine Guides," who earns compensation
for educating guests and promoting products at in-home wine
tastings. Ms. Robinson holds a Class A Industry
Independent Wine Guides like Ms. Robinson offer social hosts
the opportunity to hold educational, private, and
invitation-only in-home wine tasting events for their
friends, relatives, and neighbors at their personal
residences to learn about Traveling Vineyard's wines and
accessories. These private residences are not licensed by the
State of Wyoming to sell alcoholic beverages. The wine
tasting events are free to attend and are hosted without
obligation to purchase any of Traveling Vineyard's
products. Independent Wine Guides are marketing agents for
Traveling Vineyard and their functions include finding
interested social hosts; familiarizing themselves with
Traveling Vineyard's wines and products; attending the
wine tasting events to answer questions regarding the nature,
history, characteristics, and values of Traveling
Vineyard's wines and wine accessories; and promoting
Traveling Vineyard's wines and wine accessories by
generating leads that Traveling Vineyard must then convert
Prior to the wine tasting events, Independent Wine Guides
order and pay for tasting materials, which include one bottle
of each of five different wines from Traveling Vineyard via
direct shipment. At the events, the social host pours and
serves Traveling Vineyard's wines to the attendees, free
of charge. During the events, Independent Wine Guides discuss
Traveling Vineyard's products, educate attendees as to
the qualities of Traveling Vineyard wines, and answer
questions. At the conclusion of each event, attendees
interested in hosting a future event, joining the Traveling
Vineyard Wine Club, or purchasing wine are encouraged to
contact Traveling Vineyard. Attendees may choose to fill out
a "Survey & Interest Form," which is returned
to Traveling Vineyard. The Survey & Interest Form asks
for the following information: (a) the attendee's contact
information; (b) the product code, product name, unit price,
and quantity of the products the attendee is interested in
purchasing from Traveling Vineyard, along with the subtotal,
shipping and handling, and sales tax for those products; and
(c) the attendee's credit card information and signature.
The Survey & Interest Form advises the attendees they are
not purchasing the products they've identified on the
form and that they are making an "offer to
purchase" the identified products, which may be accepted
or rejected by Traveling Vineyard or its designee:
By completing this form you are not purchasing the products
identified on the form, you are expressing your interest in
the products. The information on this form, including your
payment information, will be forwarded to a designated
licensee who is authorized to sell the products in your
state. The designated licensee will reject your offer to
purchase or will accept the offer to purchase and fulfill the
order. Any sale made by a designated licensee will be subject
to applicable local and state laws and sales taxes, as well
as shipping and handling charges.
Independent Wine Guides do not have authority to take or
accept wine purchase orders, and they have no inventory
available for sale at any time. Traveling Vineyard
compensates its Independent Wine Guides according to the
success of the leads generated at the wine tasting events
based on several factors, including how many people attended
the event and how many attendees purchased products from
Traveling Vineyard after the event.
In 2016, the Division became concerned that Traveling
Vineyard was violating Wyoming law and requested information
from Traveling Vineyard regarding its business model.
Traveling Vineyard provided a letter explaining its
operations in Wyoming. The Division responded with a letter
asserting that some aspects of Traveling Vineyard's
business model and some of its Independent Wine Guides'
activities were "in conflict with Wyoming State
Statutes, Title 12, Alcoholic Beverage Control Laws and the
Wyoming Liquor Division (WLD) Rules and policies."
Representatives from Traveling Vineyard subsequently met with
representatives of the Division to review and discuss the
matter. That meeting, however, did not resolve the
In March 2017, Appellants filed a complaint in the federal
District Court seeking a declaration that the Division
improperly interpreted the definition of "sale" in
Wyo. Stat. Ann. § 12-1-101(a)(xvi) and applied it to the
activities of Traveling Vineyard and its Independent Wine
Guides in violation of their commercial speech rights under
the First Amendment to the United States Constitution.
Appellees moved to dismiss the complaint and requested that
the court abstain from exercising jurisdiction over issues
that involve a novel and determinative question of state law.
After a hearing, the court denied the motion to dismiss. The
court agreed, however, that the issue raised by Appellants
was an issue of state law and, pursuant to W.R.A.P. 11.01, it
certified to this Court the ...