6th Circuit fight over right to sell wine and liquor in Kentucky grocery and convenience stores continues

Last year, in what was a wonderful turn of events for those who support a rational and reasoned approach to alcohol regulation, a district court in Kentucky held that state’s regulations prohibiting wine and liquor sales at grocery and convenience stores unconstitutional.  We wrote about the opinion and decision here.  The state appealed and a three-judge panel of the Sixth Circuit Court of appeals reversed the district court determination a few weeks ago.

You can read the panel’s opinion here, and you can hear oral argument of the case before the 6th Circuit here.

The appellate court’s decision lacks the lengthy analysis and assessment that the district court undertook in reasoning that no rational basis.  In fact, the ruling reads much like a foregone conclusion.

The result isn’t surprising given that the opinion quotes from the oft-cited and incredibly antiquated, unfounded and anachronistic Toward Liquor Control.  The decision parrots the book’s 1933-grounded-reasoning-style in assessing what a “rational basis” is – failing to cite to actual economic impact or other recent scientific studies.  The opinion follows too many Courts’ methods for assessing a rational basis by providing hypotheticals and the judicial equivalents of “just-so stories” when explaining how a given alcohol-regulatory scheme or statute has a rational basis.  In this opinion, that basis is supported by conclusory statements like “grocery stores and gas stations pose a greater risk of exposing citizens to alcohol than do other retailers” and “according to a plausible set of facts, more minors work at grocery stores and gas stations than other retailers”.

Thankfully, the coalition of grocery and convenience stores isn’t backing down.  In late January they filed a petition with the 6th Circuit to hear the case en-banc stating that such a hearing is necessary because the matter raises an issue that is of exceptional importance.  As always, we’ll keep you up to date on this interesting case.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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