Friday, August 19, 2011

Boozy Like a Sunday Morning

         I know it's been a while since I've posted anything.  My bad.  I was on vacation.  Just to make up for my absence - here's an extra informative post about booze.

         It is a known fact that 67% of everyone who wakes up on Sunday morning would like to enjoy a Bloody Mary.*  Despite this staggering statistic, no local governments in this fine Commonwealth of Kentucky allow restaurants to sell alcoholic beverages before 11:00am (and some [gasp] before 1:00pm)!!!  I am as enraged as you.  Or maybe you don’t care.  Maybe you can go eat brunch at Lynn’s Paradise Café and see people ordering delicious mimosas made with fresh squeezed orange juice and bubbly champagne, and think “it’s not for me.”  If so, we’ll get to you later.
            Or you might be asking, “Why are you talking about Alcohol Beverage Control Law at all?  Isn’t that administrative in nature, rather than criminal?  Aren’t you supposed to be talking about Criminal Law?”  All good questions.  Allow me to explain.  ABC law is administrative, but it is also quasi-criminal and sometimes straight up criminal in nature.  If you own a restaurant and you sell a bunch of booze to minors, you could lose your drink license, be fined, and face jail time.
            However, as we have discussed numerous times in this blog - just because legislators wrote a law, that doesn’t mean the law passes Constitutional muster.  In the past we have discussed laws that are Unconstitutional (and unenforceable) because they are vague or overbroad.  Today we are going to discuss the prohibition on Sunday morning alcohol sales, which are local ordinances that are Unconstitutional because they violate the Establishment Clause of the First Amendment.
            Even if you are in the 33% of people who wake up without the desire for a Bloody Mary on Sunday (I told you we’d get to you later), let me explain why you should be upset about the imposition of this Puritan-esque restriction on your life.  If you guessed I am about start ranting about the separation of church and state, you’re right.  Everyone should give a damn about their individual liberties.  And when your government takes away some of your freedoms, even if it is a freedom you wouldn’t exercise, you should question it.  Hard.
        At this point, I would normally recite the law for you.  However, this week we are talking about a LOT of different local ordinances.  I could post the ordinances themselves, such as The Louisville Metro Ordinance, §113.42, or The Lexington-Fayette Urban County Government – Code of Ordinances, §3-21(a), or the pertinent portions of the Owensboro Municipal Code, and on and on, but that would take a lot of room and time.  Just trust me.  A lot of local governments in Kentucky allow Sunday alcohol sales, but restrict sales in the morning hours.  Again, I’m as enraged as you.
           So how does the Establishment Clause fit in to this?  What is the Establishment Clause?  Break out your Constitutions because I’m about to lay down some serious law…analysis.  That sounded better in my head.
The Establishment Clause of the First Amendment states as follows:  “Congress shall make no law respecting an establishment of religion.”  U.S. Const. Amend. I.  This clause, together with the Free Exercise Clause, constitute the religion clauses of the First Amendment.  The purpose of the Establishment Clause is to prevent the government from establishing a national religion, and to prohibit any manner of state sponsorship, financial support, or active involvement in religious activity.  At least that’s what they said in Lemon v. Kurtzman, 403 U.S. 602, 612 (U.S. 1971).  
The seminal case interpreting the Establishment Clause is Lemon v. Kurtzman, as cited above.  Long story short, in Lemon, the Supreme Court held that a Rhode Island statute that reimbursed a portion of teacher salaries at religious schools, and a Pennsylvania statute that provided financial support to non-public religious schools, were unconstitutional.  Id. at 606.   The Court reasoned that the statutes in question violated the Establishment Clause.  In finding so, the Court announced “the Lemon test,” which determines whether a state has run afoul of the Establishment Clause.  For some reason lawyers like naming tests after the cases in which they were established (rather than saying “the Establishment clause test”).  I’m not sure why.
In order to pass this three-pronged test, (1) a statute must have a secular (non-religious) purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) a statute must foster an excessive government entanglement with religion.  Id. at 612-613.   
You might be thinking, “But what about Blue Laws?  I thought the Supreme Court said that Blue Laws, under some circumstances, could be ok?”  You’re right.  But that doesn’t matter.
The United States Supreme Court held in McGowan v. State of Maryland, 366 U.S. 420 (U.S. 1961), that Maryland’s “Sunday Blue Laws” were not violative of the Establishment Clause.   The Court reasoned that the various Maryland laws prohibiting certain commercial and recreational activities on Sundays had the secular purpose of providing a day of rest for its citizenry; the fact that this day of rest coincided with the traditional Christian day of rest did not invalidate Maryland’s secular purpose.  Id. at 444-445.  Creating a day of rest was considered a health measure, and well within the legislature’s province.  The Court found such even though the various Maryland laws originated with clearly religious purpose.  It must be noted that McGowan was decided 10 years before the Establishment Clause test was announced in Lemon.  Additionally, the McGowan Court was careful to qualify their holding, stating that “[w]e do not hold that Sunday legislation may not be a violation of the ‘Establishment’ Clause if it can be demonstrated that its purpose . . . is to use the State's coercive power to aid religion.”  Id. at 453.
The current state of affairs in Kentucky is distinguishable from McGowan.  In McGowan, the Supreme Court found that proscribing certain activities in order to effectuate a day of rest was in fact a legitimate government goal, with the health and welfare of the public in mind.
The ordinances in Kentucky go one step further:  the local ordinances prohibit the sale of alcohol at certain times on Sundays.  This proscription does not meet the legitimate government interest of creating a day of rest (or a morning of rest) for workers.  Other businesses are not prohibited from operating during the Sunday morning hours.  Other legitimate products are not prohibited from being sold during the Sunday morning hours.  Only the sale of alcohol (the imbibing of which is considered “sinful” by some denominations) of is prohibited during a time traditionally reserved for the observation of religious services.
The Kentucky ordinances do have the purpose of using the state’s power to aid religion about which the McGowan Court warned.  Is there any law that is analogous?  Good question.  The purpose of a statute in New York similar to Kentucky’s ordinances was recently declared violative of the Establishment Clause.  Alcohol Beverage Control Law §105-a, which prohibited the sale of alcohol on Sunday mornings between 3:00 a.m. and noon, was struck down in New York v. Yafee, 3 Misc.3d 367 (2004).  In Yafee, the Criminal Court of the City of New York stated:
While there may be a state interest in preventing owners of "mom and pop stores" from being overworked, it is incomprehensible why the morning of rest should be on a Sunday as opposed to any of the other six days of the week. Rather than allowing retailers to choose which designated day of the week the individual retailer selects to close for a minimum amount of time, the Legislature mandated that Sunday is the appropriate time for rest. The Legislature's choice of Sunday as a day of rest was either arbitrary and capricious or in violation of the Establishment Clause. – Id. at 369.      

            Kentucky’s ordinances violate the Establishment Clause of the First Amendment for the same reasons.  There is no legitimate government purpose for choosing Sunday mornings as a time period of rest for workers who sell alcohol, and doing so clearly aids religions whose traditional convocation times are Sunday mornings, and whose tenants condemn consuming alcohol.  The reasoning presented by the Yafee Court is persuasive, and supports the conclusion that Kentucky’s ordinances are unconstitutional.
          Conclusion:  Any local ordinance that restricts the sale of alcohol during Sunday morning hours because that time is traditionally reserved for religious convocation, is Unconstitutional.
          So what am I going to do about it?  Keep your ear to the ground, sirs and ma’ams.  Ears to the ground.

        If you own a restaurant or bar and grill, and you have been issued a citation by the ABC, you should get a lawyer experienced in Alcohol Beverage Control law.  Our ABC lawyers at Gruner & Simms, PLLC have taken on the ABC and won.  We have changed local regulations to allow Sunday alcohol sales.  Our ABC lawyers are experienced and aggressive.  Let us fight for you.  Call for a free consultation at 502.618.4949, or visit  Results.  As fast as the law will allow.

*Yeah, I made that up.

Special thanks goes to Mr. Sean M. Reed, a new (soon to be licensed) attorney at Gruner & Simms, PLLC, for assisting in this blog post.

Questions answered in this blog post: Is it legal to sell alcohol on Sunday; how do I find a good Louisville ABC lawyer; what are the ABC law firms in Louisville; why don't restaurants serve alcohol on Sunday morning; how do alcohol laws get changed; how do I find a good Louisville restaurant lawyer; is ABC law criminal in nature; are Sunday blue laws legal; what does separation of church and state mean; where in the Constitution does it say that church and state are supposed to be separate?


  1. I love your blog posts. They make me laugh every time.

  2. I'm glad you like them - and thank you very much.