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Supermarkets and Alcohol Permits

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Two ballot questions to change the law regarding the sale of alcohol in supermarkets were recently filed with the State Attorney General. The Boston Herald reports that the MA Food Association is attempting to increase the total amount of permits that can be held by any one chain.

Currently, Massachusetts law restricts an individual or corporate entity to holding no more than three alcohol permits. This means that a supermarket chain can only sell alcohol from a maximum of three of its locations, regardless of how many individual stores are in the state. This generally explains why certain supermarkets sell beer and wine from only a few locations and not others. Supermarkets must choose which three stores will sell alcohol, which can create problems in store uniformity and customer expectations.

Supermarkets and many customers have been pushing for this law to be changed for years. Senate Bill 1851, if approved by the legislature, would increase the amount of licenses available to a supermarket chain from three to twenty. The bill would also restrict the number of licenses that could be held by a supermarket chain to one per town and two per city. The local licensing authorities would still have to approve a permit application for each location and all alcohol permit quotas would still apply.

It remains to be seen whether Attorney General Martha Coakley will certify either ballot question or whether the legislature will vote favorably on Senate Bill 1851. Needless to say, change could be coming to a supermarket near you but don’t plan to drink-up just yet.

Farmer-Breweries

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The Boston Globe and Boston Herald have reported on a recent change or clarification in policy regarding “farmer-brewery” licenses by the Massachusetts Alcoholic Beverages Control Commission (ABCC).  Farmer-brewery licenses are intended to encourage the development of “domestic farms”, and appear in the regulatory statute alongside similar provisions for licensing of farmer-wineries, pub-breweries, and farmer-distilleries.

In late July, the ABCC denied an application for a famer-brewery license to be located in Everett, Massachusetts.  The ABCC followed up on August 1 with an Advisory, announcing that all farmer-breweries will henceforth need to demonstrate that at least half of the grains or hops needed to produce their malt beverages are grown by the licensee.  In an interesting exception, the ABCC announced that the “grown by the license” requirement could be satisfied if the licensee or applicant merely “contracted exclusively” for the rights to the yield of cereal grains or hops produced from acreage of domestic farmland.

In other words, the ABCC ruled that a farmer-brewer needs to actually grow at least half of the cereal grains or hops needed to produce its malt beverage “unless someone else grows the grains and hops for them, both exclusively and domestically”.

Some remaining confusion stems from whether “domestic” as used in the statute means “from within Massachusetts” versus “from within the United States”.  Most observers think the ABCC interprets “domestic” to mean “from within Massachusetts”, such that “farmer-brewers” would need to obtain their grains and hops largely from within Massachusetts.

That interpretation, however, could well be unconstitutional, under a line of recent court cases from around the country interpreting farmer-winery licenses.  Those cases basically hold that under the Commerce Clause of the US Constitution, a state cannot favor in-state interests over out-of-state entities in its liquor licensing scheme.

Stay tuned, the Globe reports that brewers are meeting next week with state treasurer’s office (which oversees the ABCC).

Beer Carts

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Golfers are notorious for continually seeking quick and not-so-quick fixes to better scores.  They buy expensive new drivers, hybrids and “game improving” irons.  They switch to golf balls touting clever patterns of aerodynamic dimpling.  They gobble up swing aids and instruction books.  They pay extra to play better conditioned courses.  Some – relatively few? – golfers even try the extreme measure of better conditioning their own bodies.   Nevertheless, despite all the time and money spent to improve their games, last time we checked, the statistical evidence matched our personal, empirical observations – none of it works.  In other words, the average golf score isn’t actually going down, and hasn’t for a long time.

Which is not to say golfers haven’t experienced real advances on the golf course.  One area of the golf world that’s definitely improved of late, in Massachusetts, is in one of everyone’s favorite aspects of the game – the beverage cart.  For years, many golf courses in Massachusetts included bars which sold beer, wine and/or cocktails pursuant to so-called restaurant or “pouring” licenses pursuant to M.G.L. Ch. 138 §12.  Like any other bar or licensed restaurant, however, patrons had to imbibe right there, inside (or right next to) the premises.

In the Spring of 2009, however, the State Alcoholic Beverages Control Commission (“ABCC”) issued Guidelines that for the first time admitted Massachusetts to the ranks of states which allow beer and other alcoholic beverages to be legally purchased and consumed outside, on the links, where the game is played and alcoholic assistance is most directly needed.  Yes, two years ago, beer carts finally sputtered their way onto courses and up and down golf cart paths throughout Massachusetts.

As an aside, some might wonder how pre-2009 Massachusetts golfers dealt with their poor play (of their notably frustrating sport) without immediate access to alcoholic beverages.  Others would note that golf bags then and even today possess numerous capacious pockets, and follow the melting ice to their own logical (and sudsy) conclusion.

But back on the legalized links, the ABCC’s 2009 Guidelines set forth rules for the legal sales and consumption of alcoholic beverages out on the course in Massachusetts.  To summarize:

1.  Sales and service of alcoholic beverages outside on the  course has to first be authorized and approved by the local licensing authorities AND by the ABCC.  No unlicensed sales – ever.

2.  Once properly authorized and approved, ALL alcoholic beverages out on the course have to be obtained from the licensee.  No more smuggled six-packs; not even any unauthorized nips or flasks.

3.  Signs have to be posted at conspicuous locations, advising “no alcoholic beverages permitted beyond this point”.

4.  Of course, all the usual restrictions still apply:  No sales to minors.  No sales to intoxicated persons.  No delivery of more than two drinks to one patron at any one time. No beverages carried away from the licensed premises.

That last restriction – no “carry-out” – leads to one unusual wrinkle in the legal, licensed sale of alcohol out on golf courses.  Most restaurants, bars and other licensed premises don’t have roads, streets or even highways running through them, whereas many golf courses do.  So, how did the ABCC handle streets and other “public ways” right in the midst of licensed premises?

The ABCC’s golf course Guidelines on this point are clear, and clever.  First, if your course is intersected by a public way, and you want a single license to cover both sides of the street (and who wouldn’t?), all beverage carts must get a transportation permit from the ABCC.  Just like the big beer delivery trucks have to have to operate out on the roads.

Second, and perhaps even less obvious except to the liquor licensing cognoscenti, “No licensee shall permit any patron to possess or carry alcoholic beverages in or on a public way.”  So, if Mr. or Ms. Golfer buys a beer on the second hole, and must cross a street to get to the third hole – drink fast!  Or, think of your local beer cart girl as the pre-security gift shop at the airport, and that street between the second and third holes as the TSA – no liquids (of the alcoholic beverages sort) permitted through security!

Fore!

Beer Towers

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Ever heard of a “beer tower”?

For the uninitiated, beer towers are sort of a pitcher on steroids — a type of mini, skinny, new-aged keg. You can view beer towers for home use [alas, empty] from $35 on Amazon.  There are also more commercial versions.

A single beer tower typically holds as much liquid as two or three pitchers (or, as we say around my house, “one Uncle Lester”). Some beer towers have options, like an ice chamber to keep the beverage of your choice chilled while you and your posse “work” on emptying the tower. Others have interior lights to entertain if not illuminate the beery-eyed. No word yet on automatic transmissions, power steering, audio systems or – heaven forbid! – brakes.

Which gets us to the legal part of this blog. Certain local restaurants have used beer towers to serve beer in their licensed establishments. Indeed, we’re told that beer towers are particularly favored by the considerate kind of folk who hate to inconvenience their fellow patrons by monopolizing a server’s time in continually refilling their glasses or pitchers.

Which leads to the “issue,” as we say in legalese. For, you see, bulk consumer beer table service is not necessarily favored by the licensing authorities. Indeed, years ago the Massachusetts Alcoholic Beverages Control Commission (“ABCC”) adopted a set of regulations (“Regs”) that are now universally known as the “Happy Hour Regs”. For those of us who matured prior to their adoption – and remember real, live, actual Happy Hours – the Happy Hour Regs really should be called the “Elimination of Happy Hour” Regs, since they prohibit a number of once common methods of enticing people into bars and restaurants to enjoy themselves and spend money while overdrinking – practices including free drinks, reduced-priced drinks, increased-volume drinks, fixed-price drinking, and drinking games, contests and prizes. The Happy Hour Regs are reprinted in full on the ABCC’s website.

Two particular Happy Hour Regs with potentially specific application to restaurant beer towers prohibit (1) the delivery of “more than two drinks to one person at one time”, and (2) the sale, offer to sell, or delivery of “malt beverages or mixed drinks by the pitcher except to two or more persons at any one time”. Those of you who’ve gone to law school, or perhaps have just developed an unholy love for beer towers, might point out that a beer tower could be considered a “single” drink, since after all a tower IS a single if somewhat super-sized container. We might call this the “Uncle Lester Proviso”. Other quibblers might note that a beer tower is not a “pitcher”. We might call this – especially around Yankees fans – the “Carl Pavano Exception”.

However, such creativity would certainly be lost on the licensing authorities in Boston, and probably just about anywhere.  The March of Progress is not always a straight line.

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