By Steve Amato
The 21st Amendment to the Constitution may have repealed national Prohibition and allowed the citizens of the United States to once again have the opportunity to enjoy alcohol legally, but it didn’t blanket the nation with one unified process of how law abiding folks could obtain liquor. The historical Amendment actually endowed the states themselves with extensive power and authority to regulate the sale and distribution of alcohol. As a result, each state has its own unique system of alcohol beverage control with laws that are as distinctive as the dialects and drawls that are encountered from coast to coast.
For distillers and brewers, alcohol production and sales are regulated at the federal level by the regulations promulgated and enforced by the Alcohol and Tobacco Tax and Trade Bureau. But for a bar or liquor store to sell liquor or beer in the United States, those entities must abide by what that particular state law allows.
There are basically two forms of state-level regulation of alcohol licensing – control and private licensing. There are 18 control states in the U.S. (at last count) and they have a state monopoly over either or both the wholesaling and retailing of some or all categories of alcoholic beverages within their states, such as beer, wine or distilled spirits.
License states, on the other hand, do not directly participate in the sale of alcoholic beverages, but instead regulate the industry by the issuance of licenses to private businesses in the state. The laws in a control state are generally the same throughout the state, whereas, in license states, there is very often additional significant local legislation. Kentucky, a license state, is home to a hodgepodge of state and local regulations. One can look no further than the wet, dry and moist labels that are sub-governed by each of the 120 counties that resided in the Commonwealth to see the complex variances that can reside within a state.
It is no surprise that in the years since Prohibition, some states have come up with some quirky and downright confusing laws that reveal a bit of the culture and paranoid views of the post-Prohibition nation. Some of the most notable such laws are known as “blue laws,” which outlaw certain secular activities (like sipping on a Bourbon cocktail) on Sunday and holidays. Until 2013, Kentucky had a statewide ban preventing retailers from selling alcohol on primary and general election days – one of the strictest and seemingly outdated restrictions in the country. As these states showcase, Kentucky is not alone.
This state’s liquor laws, heavily influenced by the influence of the Mormon church in the state, are some of the most conservative. The art of the keg stand cannot be mastered here, as the state prohibits anyone other than a licensed beer retailer from possessing beer in containers larger than two liters. Most restaurants with alcohol licenses are required to keep open bottles of liquor and beer taps out of patrons’ sight, either in back rooms or behind opaque walls, dubbed “Zion Curtains.”
Children in the South Carolina public school system must be taught about “the evils of intemperance” on the fourth Friday of October each year, in honor of Frances Willard, an instrumental player in the passage of Prohibition.
It may be 5 o’clock somewhere, but not in this state. Massachusetts was one of the first jurisdictions to implement a state-wide ban on happy hours in 1984; it remains intact today and few other states enforce the law as zealously as the Bay State. The not-so-happy regulations specifically prohibit offering free or discounted drinks during a certain period of time. Unlimited numbers of drinks cannot be offered for a fixed price, and bars are prohibited from sponsoring promotions that award free alcoholic drinks as prizes. A pitcher of beer can only be sold to a party of two or more customers.
Don’t even try telling the bartender to “just add the drink to my tab.” Tabs and credit vouchers are illegal and bartenders may only extend credit through the use of bona fide credit cards. While a patron may run a tab while drinking in the establishment, licensees (and their employees and agents) are required to ensure the tab is fully paid before the patron leaves. Hey, at least patrons won’t have to schlep back to the bar the morning after to retrieve an open credit card.
Who needs a fake ID when there’s Wisconsin? In this state, an underage person accompanied by a parent, guardian or spouse of legal drinking age may be sold or served alcohol beverages in any licensed premises. Perhaps this is why the state, long known for its breweries, has become known to some as “Wasted Wisconsin.”
If you are hoping to get lucky with the bartender in the Cornhusker State, you are out of luck. State law prohibits licensees from allowing any unreasonable disturbances, which includes any physical contact between the licensee’s agents or employees and its customers. A smile and a wink may earn you a free drink in other places, but don’t be disappointed when the bartender ignores your advances here.
When traveling across state lines (or in some cases, county lines) remember that the laws may vary. When in doubt, belly up to the bar and take the lead from the locals.
Stephen G. Amato, Member of McBrayer, McGinnis, Leslie & Kirkland, PLLC, has practiced law throughout Kentucky since his graduation from the University of Kentucky College of Law in 1990. His practice is diverse, focusing on civil litigation and administrative law. His administrative practice focuses extensively in the area of alcoholic beverage regulation, primarily representing the interests of alcoholic beverage retailers and distributors in connection with licensing and enforcement issues at both the state and local levels. Amato can be reached at [email protected] or at (859) 231-8780, ext. 104.