Judge to Wine Lovers: “It’s Not 1933?”

Posted by Tom Wark on Feb 3, 2014

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:

“In sum, the Court finds no logical explanation for the classification of grocers as community gathering centers, but not other retailers, like drugstores. Nor can the Court think of a rational relation between what apparently makes a store a community gathering center–substantial sales of groceries versus sales of non-food necessities – and whether that store may sell every type of alcoholic beverage, or only beer. The State gives no plausible reason for the distinction. The Court can only conclude that the legislature wanted to limit liquor sales generally and to maintain somewhat the status quo, and it did so by arbitrarily distinguishing grocers from all other retailers.”
Convinced the District Court Judge got it wrong, the state of Kentucky appealed the ruling to the higher 6th Circuit Court of Appeals, which concluded that 2014 was really no different than 1933:
“We conclude that reasonably conceivable facts support the contention that grocery stores…pose a greater risk of exposing citizens to alcohol than do other retailers. A legislature could rationally believe that average citizens spend more time in grocery stores…than in other establishments; people typically need to buy staple groceries (for sustenance)…more often than items from retailers that specialize in other, less-frequently-used products….People can survive without ever visiting a pharmacy given that many grocery stores fill prescriptions. On the other hand, most people who object to confronting wine and liquor conceivably cannot avoid grocery stores and gas stations. Though some modern pharmacies sell staple groceries, grocery stores may remain the go-to place for life’s essentials.”
I’m perfectly capable of imagining the dumbfounded looked that must have crossed the faces of the grocery store owners in Kentucky as well as the District Court Judge upon seeing that this higher court overturned the lower court’s decision by making the claim that while, sure, both “grocery stores” and “pharmacies” sell exactly the same thing today, they are entirely different kinds of stores where one can reasonably be restricted from selling wine, while the other is allowed.
Upon wiping the dumfounded look off their faces and after applying ointment to the newly acquired bald spots on their head where considerable scratching had taken place, the grocery store folks decided they ought to kindly ask this higher court to perhaps take one more glance at the case in the form of a rehearing.

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.

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2 Responses

  1. David T - February 3, 2014

    I’m a pharmacist, and completely agree with the grocer’s re-hearing request. I can’t speak for Kentucky but in Ohio, both the grocery store pharmacy and drug store pharmacy have the same licence issued by the state pharmacy board. If both can dispense Lipitor, why can’t both sell wine… especially since during prohibition that wine bottle required a prescription from a physician, no different from the Lipitor. And I would love to hear the reply from my patients who would be much worse off without their medications that “People can survive without ever visiting a pharmacy”

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  2. Afternoon Brief, Feb. 3 : WIN Advisor - February 3, 2014

    […] Judge to Wine Lovers: “It’s Not 1933?” […]

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