Judge to Wine Lovers: “It’s Not 1933?”
In 1933, the state of Kentucky reacted to the end of Prohibition by passing a law that allowed wine and spirits to be sold in pharmacies, but not in grocery stores—where only low alcohol beer could be sold. The idea was that by segregating this “strong” form of alcohol in the relatively low trafficked pharmacy where drugs and prescriptions were sold and keeping it out of the high trafficked grocery stores where people bought their food and which were considered “community gathering centers”, this would allow teetotalers to avoid having to confront the evil beverage as well as reduce access to the stuff.
Fast forward 80 years…..
Kentucky grocery stores, noting that today “pharmacies” like RiteAid, CVS and Wallgreens sell substantial amounts of groceries and staples and have larger stores and revenues than tradition grocery stores, file a lawsuit challenging the distinction between the two as arbitrary and a violation of the 14th Amendment to the Constitution that requires that entities that are substantially the same, must be treated the same.
A Federal District Court looks at this claim and replies: Well, of course, you are right:
The kindly worded request for re-hearing by the grocers included no less than six instances of the phrase, “with respect” in the course of noting that the panel of judges “conclusion runs squarely against the record, which shows that in today’s marketplace, stores such as Walgreens (a “Pharmacy”) have become every bit as much a ‘go to place for life’s essentials’ as a Kroger (a “Grocery Store”).”
But my favorite part of the written request for a re-hearing comes in a little footnote the grocers put on page five:
“Moreover, the rational basis offered by the Panel (of judges) employs circular reasoning. Put under a different lens, the Pannel (of judges) has actually concluded that a Kroger can be prohibited from selling wine because it sells prescriptions, while a Walgreens can be allowed to sell wine because its primarily sells prescriptions. This basis is plainly irrational and cannot stand.”
Yet it is entirely possible this irrationality will stand as Circuit Courts rarely grant a re-hearing, even when it appears that a judgement has been rendered by a panel of heavy pot smokers.
Next door to Kentucky, Tennessee is about to legalize (in an admittedly very tortured way) the sale of wine in grocery stores. I suspect that in Kentucky, the people and the grocers will need to undertake a similar legislative battle to remove from the books the now unreasonable and silly distinction between grocery stores and pharmacies. However, there is always hope that not every judge on the Sixth Circuit Court of Appeals is a pot smoker and a re-hearing of the case in Tennessee will be allowed.