case number twelve days six zero five six twelve six zero five seven and six one eight two maxwell picked pack incorporated at all versus tony is in danger all the liquor outlets argument not to exceed defendants sorry i'm reading this wrong fifteen minutes for the plaintiff and fifteen minutes to be shared by the defendants and intervening defendant mr irving you may proceed for the have became a better student of the rational basis test i thought that we should prevail under the law but i think that the case exception for drug stores in kentucky is law it's a broad based like it law in fact a prohibition on  a certain of groceries against all other retailers whether it be a drug store or hardware store or macy's any other retailer then one who sells a substantial grocery paying a liquor license but the reasons for that prohibition i think are saying are the same today when they were adopted seventy years ago and the reason i believe is is that groceries continue to be the central most frequented point of commerce in community because of that they have the effect of exposing the most people with the most frequency to the products the and the harms that are intended to be avoided by the prohibition of the sale of groceries are the same today as they were seventy years ago this out if your health this is judge cook you'll get to know our voices but as you know and we might as well get right to it you know your opponent is arguing that times have changed are you still on oh i'm sorry my phone is ringing other times have changed and that the variation among retailers and those sorts of things that each sells and big box et cetera and walgreens wal mart's that that has that that has changed the the structure and therefore renders this legislation and its accompany regulations unconstitutional keeping so maybe just address that have things changed enough to make this attack the no rational basis exists your honor is still a half or more of the counties in kentucky are still a drought it remains a very volatile political issue but what i that the grocers are doing your on are making their rationale i think that what the legislature has done at the very least your honor is developed and that office is what  i just went through that is is that if you were given the say on growth or most frequent point of commerce in a community that you then limit the exposure of hard liquor and wine to children that you then limit the frequency of impulse buy of the substance and the ills that come from that  sustaining crime by taking it away from from the traditionally volume dealers and grocers and i think your honor the fact that the gross want hypothesis at all demonstrates that there is a rational basis for the hypothesis that's what the law is as long as it is that as long as it is at least think where she is eckstein you to focus is on whether the community the prime community meeting like station is no longer just in a a store because of the restructuring of the business of the sale of grocery and goods and i think the question is because i am a target for example nature of your claim been altered because the nature of the business it's changed you are i don't think so i don't think it i don't think that changed at least not to that extent i think the grocery is still the primary because that's where people go for food that's the primary place if i'm going grocery shopping i'm not generally going to go to target if i'm going grocery shopping i'm not generally going to go to walgreens i'm going to go to kroger or value market or a grocery store and i have to go every week many people go daily and so i don't think that the basis for the underlying basis for the premises change but even to the extent shirton is you as you observe the market quota licenses that person makes a choice to go make the purchase and any venue that offers it for sale but in kentucky a place where you're trying to sustain a political balance between those who would prohibit it altogether and those who put it on every corner that's the reason why it needs to be limited in groceries because that's where everyone in the community has to go and that's the way alcohol control authority the delivery to enforce restriction in terms of sales to minor hours of sales and so forth if this order were upheld rather than gas station as well as to program or another growth story not correct or not yes your honor that is correct a lot for him to say oh not only words ten percent or more not only were your back to judge francis question the state would still retain you sort of the determine who qualifies for a liquor license is that correct yes your honor and in your view could dissipate subjective simply by whom it gave licenses or are there problems that would be created in terms of use in a lottery or do you have to apply or  there's an application process there are our standards in place to judge the qualifications of an applicant but in the absence of th lawyer author of course it could be interpreted to be arbitrary if you will if the the person to sit in judgment with out a statutory qualification just picked on gross ok let me ask you this time it seems to me that a very strong stronger argument for you to secure a reversal is that it does cover gas stations that are more likely to be frequented by miners who have more difficult to monitor and to control and are open i don't know maybe i shouldn't go there with this factual question but at least might well be open twenty four hours a day seven days a week suman bars and so forth restaurants where you can buy alcohol close in a certain hour but for somebody to be able walking to two o'clock in the morning whether a minor an adult grab a bottle of liquor or wine in all candor this is really for the plaintiff to address i find that to be a very valid concern on the part of the state it's not just the grocery stores but it's places where you could stop going to get gas two o'clock in the morning and pick up a bottle time after you stop drinking a lot i think your point is well taken it also makes the product more susceptible to  y and it is a white child so let me your time has expired and it has expired a minute or two ago so the question judge carr poses will be something that can be discussed by the other side and also revisited by you along on rebuttal if you like but thank well thank you for your argument and we'll hear from mr clarkson next please the court i think part of my presentation today is going to dovetail on some of the questions the court has been asking the state and it's kind of goes under the heading of what we put in our brief the practical effects of the court's ruling on the regulatory system in general one thing that hasn't been commented on that should be pointed out two forty three to thirty seven section five is not just about packets licenses the whole statutory scheme of two forty three to thirty relates to where you can have active licenses and also retail by the drink license or a bar so to speak down this statue not only allows grocery stores and gas stations and convenience stores which are the entities we're focusing on seek and licenses to sell by the package but if you read the statute they can now seek buy  drink licenses essentially allowing them to sell drinks on premise to customers this is an hypothetical that i suppose your honor if you look at the record below we actually had in our expert report an affidavit the fried food stores that kroger the parent company operate in other states have wine bars and other other on premise sale of alcohol so you elimination of this  ovision of the statute it's going to affect not only quote unquote packaged sales but now open these entities up to go get and sell on premises i think neither of those things were ever intended by the statutory freedom of application not only can they now be package stores they can now see gay retail buy to drink life and so if the court is concerned about the package sale at two in the morning a bottle of liquor or wine to someone walking and imagine that the greater concern about if they have a wine tasting already bourbon tasting since we're here in kentucky and the ability to sell those drinks on premise and it concerns about gas stations and a number of outlets that alcohol is nothing new if the court looks at the record and for example the father can scott horton liquor control report which is the basis for all fifty states c regulation both prohibition and kentucky liquor control committee report that we put in the record those reports and that historical basis were always always concerned with the proliferation of the sale of alcohol on premises and by package the whole regulatory scheme with design to recognize those concerns recognize the concerns that litter and wine are not beer and decide where and when those sales should take place and for the last seventy plus years the regulatory premises licensing scheme has decided that those sales can take place for example in drug stores and i know that has been a favorite kind of whipping post in this case but let's not forget drug stores for all time sales in kentucky were always the most favored nation status because  during what before during and after prohibition they were allowed to be a package store because of their history and experience with the regulation of alcohol let's also not forget the whole reason we have a prohibition and the regulatory scheme is that alcohol is not your typical consumer product it is never been looked at historically or today as a product you can interchange with toilet paper and to pay no other products on yourselves regardless of if you still in their product it probably is the most regulated consumer product in history we have to constitutional amendments and state regulatory schemes that regulated sale and concerns that were valid and nineteen thirty eight when he deemed was an acted in a concern that the liquor control committee had when they analyzed after prohibition in kentucky how we're going to regulate and sell it are no different than it concerns that today certain services it's a charge card suit me do we really have to reach the question of whether we look at the regulation from today's perspective the statute regulation from today's perspective to reverse and number two do we have to worry and address the question of whether the twenty you know the interplay between the twenty first and the fourteenth amendment's or commute is considering either of those i find to be pretty thorny and tricky issues we have to look to you there are those considering  those who are going to relief you those are your honor thank you for that question because the district court overlook those issues i think the court has to at least wait and i want to point the court to credit at court they can makea look at the issue and decided that no you have to look at what credit meant at the time the statute was inactive and there was a rational basis for not allowing the sale of a still spirits in wine to be sold on credit and they  struck down the desire to sell on credit they didn't allow the letter which which let the process play out as it should the legislature then changed the statute after that decision to allow credit and part of what we're minute ago and i think you've answered the question and and so we'll move now to our opponents oh yes they may please the court and mr urban mr carson a those those everybody agrees that those are legitimate state issues that's not the question in front of the court though what is before the court is whether the discriminatory manner in which the state seeks to any and those goals is that we are we're looking at statutory scheme and number one we presume it's got to ality so we start there i mean the broader question that you frame it don't think it's quite the one that we're faced with we have a narrow question about this whether or not any can achieve a bowl rational reason whether you can carry the burden to show that no is that the state has offered no no reasonable rational bases judge paper and in his twenty nine page opinion labored over this is governed by statute and ordinance and could get a number of our the hours that that retailers can sell those products is strictly limited so whether it's a gasoline station or a or a twenty four hour walgreens or nothing inherently fusing there's nothing inherently wrong with the sale of alcohol liquor and wine in particular alongside  nature of that frequent it has the relationship to the saddle that makes it rational where people go most frequently and are exposed to this purchase determine their money back up it makes a rational relationship between the desire to limit accessibility and frequently   it may have been true at some point in time years ago when so called grocery stores so the only outlets that sold groceries in today's economy and today's marketplace  staple groceries are found many places including walgreens and c v s including liquor outlets party source it's just the question of the amount is there does the license and we submit your honor that there is no rational basis to make that distinction and then there's no no proof in the record that in fact the grocery stores are any more frequented then then drug stores  the areas of kentucky in fact drug stores such as all very point i think the point may be that we've gotten from the arguments of the state and  their colleagues is that one cannot live without groceries and if you choose ever the temperance side of things in kentucky you still need to go to the grocery store you still need you typically take your children that's the kind of argument that i understand that you're faced with and that you must carry your burden to show that that's not legitimate if it's arbitrary and it's not a conceivably rational grounds so it's true that people go to both maybe they go to wal mart and but they if they want to avoid and that exposure to alcohol decided and where the majority has decided in under a local option the election to to be a with area to then protect those people who may be sensitive to disagree with with drinking alcohol from having to see they are the whole high content i mean the state has the state has distinguished between high alcohol content spirits and wine and lower alcohol content and you know the whole legislative scheme make that distinction so we're we're really faced with deciding in the framework of that distinction are we not do you still have the same answer to your question yes because the same protections are in place would be in place in a kroger store for example as in a walgreens store the same requirement to check the driver's licenses for age two to keep liquor under under lock during the hours when it's prohibited for sale and that sort of thing would still apply and i would submit to go ahead no i'm sorry that has i think i had finished my answer i think that the drug the drug stores this day in time are and always have been just as important and just problem i think you have in this case if this were if we're only talking about the grocery store drug store issue that's fine that's one thing but border gas stations all the time they usually only want to clerks there they are frequented by teenagers and others probably to a greater extent than grocery stores or drug stores and certainly i can we carve the order up somehow i think you got my point well i do get your point your honor now i think there are three or four things there this day in time as the co this is probably where as we're all aware drivers drive up to a gas pump put a credit card in the in the mechanism there and get their gas how often at a just at a gas station does somebody even go in the store anymore and even then the same laws are at play a sixteen year old goes into to a gas station to paper the gas exercise in determining that they're twenty one years old that they would in a walgreens store or any other location plus you know i would point out that many liquor stores in kentucky as we point out in the end  record and then are exhibits have drive through you only have to be sixteen years old in kentucky to get a driver's license and drive right up to up to a window and perhaps perhaps not buy alcohol  grocery stores where they could go at equal numbers of times but i think the legal question that faces this panel is whether or not the state could rationally conceive that people go to grocery stores more often and filling stations or often could the state not rationally conceive that they could be wrong but they don't have to be correct it's they're allowed to speculate and we're allowed to speculate about what the state might have thought well your honor i do think that degree of speculation can be  line drawing by the state that it's classified through a classification and it put you in your grocers and and that their ilk and filling stations in for making that distinction or yet again is it is can you carry your burden to show that there is no rational basis for drawing that line no conceivable right i mean to keep going back to the top question very tough hurdle that you must you know overcome yes your honor because of the rational basis is it based on the fact that they are assuming that just more people are going to go into the grocery store there is that that overlooks the fact that the same protections and mechanisms already would be in place in the grocery store to to  then she cleared up their mind yet well we've never had that happen with the judge before we're you know a lawyer still on or we know the lawyers should still be on the line isn't the not that everybody who sells has the same limitation but the number of people exposed to the product the number of people with access and purchasing that i will and purchasing gas necessary for transportation student and transportation are two key components of life and that the legislature would then be within it authority to say we believe that people visit grocery stores they sell more more numbers and more variety of straggle and people because it gets stations to purchase necessary gasoline for travel more frequently than they do the other category which is drug stores and package stores or party stores and we believe that that helps us to limit excess of what some believe to be a dangerous product or a product that can be dangerous to society now then doesn't the burden transfer to you mr pitt to shout that date is too negative that presumed rational basis and that my question would be what do you have in the record that would negative that presumption your honor there there is no fact that i'm aware of no fact batting in the record on that presumption about  ke the presumption demanded and i'm sorry let me let me hung it a little bit better on my question we're talking about rational possibility could a legislature rationally make this determination and the burden to navigate him that is yours so my question would be what have you placed in the record too negative and thanked a language rational distinction i think that that presumption may have been true and i think thirty eight when that when the statute was was inactive that that many more people example are very frequently that are frequently attended and and that that that that is a change that has been dramatic changes over time and that the that this  what would happen here is saying that that would be the result would be that someone who happens to have the more people or have a larger store is then big for him a bit from firming gauging in the thank that counsel for the grocers as myths of point that each of the members of the court has tried to answer him to address there is no inherent problem with the sale that alcohol  legitimate bait and switch and when you consider what the grocers are complaining about their arguments are just that their argument and they have to be arguable it only has to be conceivable doesn't it correct your hon and all the grocers of dining out thing where the district court may have run a oneness attempt to balance those arguments but the fact that they are tempted to be balanced demonstrates the debate ability of the issue and because the question is debatable we satisfy the rational basis test that there is an available hypothesis that all defeats the grocers challenge in this classification chosen was the best mange to accomplish the objective or whether the court agrees with the legislative choice it's the fact that it is a debatable choice that it is at least