The 6th Circuit has denied the rehearing of the decision upholding Kentucky alcohol regulation banning grocery and convenience stores from selling hard liquor. The 6th Circuit reversed a district court decision. The order denying rehearing can be found here. The plaintiffs will need to decide whether to appeal to the United States Supreme Court or drop the matter. They have 90 days to file an appeal. And presumably, they will seek a legislative solution again.
(earlier post) – Responses to Petition for Rehearing Filed
On February 21, the court directed the State to respond to the petition for rehearing en banc.
The State responded on March 7 stating that the petition for rehearing en banc does not meet the standards required for such hearing. The brief continues to counter the argument that Grocery Stores and Pharmacies are equally situated stating “[w]hen families prepare the weekly grocery list, the aisles of food product in the mind’s eye are those of a grocery not a drugstore. This is because while a drugstore may carry some food stuff for convenience of its shoppers, it does not have a produce aisle, fresh meat, poultry or fish counter. It does not have flour, powdered sugar, or anything like the variety of all types of food goods that a grocery has. It is the ubiquitous nature of the grocery that distinguishes it from other retailers as the primary and “go-to” place for Kentucky citizenry.”
The Party Source responded as an intervening defendant seconding that Maxwell’s Pic Pac and the Food with Wine Coalition’s petition does not satisfy the IOP Standard requiring a rehearing en banc be based upon errors made in determining the facts; the panel’s rejection of Appellees’ factual arguments did not overlook the record and common experience; and lastly, the panel was not required to apply a heightened equal protection standard of remand the case to the lower court for such consideration.
The brief argues that the Appellees used the petition for rehearing to present expended factual rearguments and uses a detailed chart to compare the rearguments to the facts already presented.
In response the Appellee’s argument that the Panel overlooked “common experience,” the appellant counters that “suggest[ing] that a drug store or package retailer that sells five loaves of bread or ten bottles of milk is in competition with any behemoth grocery store is factually unsupportable.” The brief concludes that the court should deny the Petition in its entirety.
The American Beverage Licensees also responded bolstering the 6th Circuits opinion that the challenged law continues to serve a rational purpose of limiting the number of outlets selling beverage alcohol, especially high alcohol volume products.
Source: Alcohol Law Review