Frankfort, Ky.—Earlier this month Kentucky’s 1938 statute prohibiting the issuance of a license to sell wine and distilled spirits in grocery stores or gas stations was found to be in violation of the Equal Protection Clause of the U.S. Constitution. The ruling was handed down by John G. Heyburn II, chief district judge of the U.S. District Court for the Western District of Kentucky in Louisville. The basis for the ruling is that grocery and convenience store operators may not obtain a license to sell wine and spirits, although drug stores and other retail establishments are allowed to apply for and get them. (Grocery stores and convenience stores have long been permitted to sell beer.)

Judge Heyburn’s order was accompanied by a lengthy memorandum opinion. “The state undoubtedly views the consumption of wine and liquor as potentially more dangerous than beer because of their higher potencies,” he wrote. “Relatedly, the state might want to limit accessibility to the general public to avoid use of these products. These interests certainly justify tighter controls on the sale of these products, such as capping the number of retail package licenses for wine and liquor, but not beer.…However, it does not explain why a grocery-selling drugstore like Walgreens may sell wine and liquor, but a pharmaceutical-selling grocery store like Kroger cannot. This distinction would seem to have no relationship whatsoever to the control of higher-proof alcohol sales or the abuse of these products. The state has not explained that rational relationship, and the court cannot think of one.”

Stores organized in 2007
The civil lawsuit was brought against the Kentucky ABC by the Food with Wine Coalition, a nonprofit organization established in 2007 by several large and small Kentucky retail grocery, supermarket and convenience stores. At first the coalition made an attempt to get the legislature to change the law, but after failing to get legislative action in several sessions, the decision was made to go to the courts.

In his Aug. 14 ruling, Judge Heyburn stated that his final order would be held in abeyance until he could hold a hearing with the attorneys. That conference took place Aug. 20, and the judge told them that the final order would be issued on the following day. Enforcement, however, would be delayed for 15 days to allow time for appeals to be made. One northern Kentucky liquor store has said that it would appeal the ruling; the state’s ABC has not yet made a decision.

Judge Heyburn’s ruling will affect only those areas of the state where the sales of wine and package liquor are permitted. Kentucky has a number of dry counties that prohibit the sale of alcoholic beverages. His decision will have no effect on the three-tier distribution system in place in Kentucky, nor on the state’s quota system of determining the number of licenses to be made available based on the population in a given area.

Gov. Steve Beshear has set up a special task force to try to modernize and streamline Kentucky’s alcoholic beverage laws. The first meeting of the task force took place Aug. 16 in Frankfort, and their recommendations are due to be given to the governor in early January.