Massachusetts Package Stores Challenge Constitutionality of Ballot Question to Remove Chain Store Liquor License Caps

East Coast gas and convenience store chain Cumberland Farms’ attempt to change Massachusetts’ off-premise retail chain licensing processes is being met with opposition from the state’s alcoholic beverage package stores.

Cumberland Farms, which operates more than 200 stores in Massachusetts and a total of 600 stores across eight states, is backing a ballot question that aims to create a new class of liquor license for food stores, and amend, and later remove entirely, the cap on the number of liquor licences chain stores can hold, among other issues.

If passed, the ballot initiative would also:

  • require off-premise retailers to verify identification for all customers purchasing alcohol,
  • require all retailers to use barcode scanners or similar technology by 2022,
  • And create a new fund outside of the Commonwealth’s general fund for fees, excise taxes and fines to support the state’s Alcoholic Beverages Control Commission’s implementation of the law.

In an effort to stop the ballot question from appearing on the November ballot, the Massachusetts Package Stores Association (MPSA) filed a brief on Friday in Massachusetts Supreme Judicial Court challenging the constitutionality of state Attorney General Maura Healey’s certification of the ballot question.

MSPA executive director Robert Mellion told Brewbound that the subject matter of the ballot question must be related or mutually dependent, according to amendment article 48 of the Massachusetts constitution.

“We contend in our complaint that addressing the issue of IDs is completely independent of addressing the issue of capping on licenses, which is completely independent of changing where money goes in the general account and creating a new account for the ABCC,” he said. “These issues are completely independent of one another.”

In August, the MSPA, along with the Beer Distributors of Massachusetts and the Wine and Spirits Wholesalers of Massachusetts, each filed complaints with the AG’s office prior to the ballot question’s certification.

The AG’s office certified the question in September, which led to the MSPA’s challenge.

Healey is expected to submit amicus briefs in the coming weeks.

Massachusetts currently allows off-premise retail chains, such as Cumberland Farms and grocery stores, to sell beer and wine in up to nine outposts.

Package stores that offer beer, wine and spirits are issued licenses that are limited based on population size.

Similar to package stores, chains are beholden to the same population-driven limits, but are also limited in the number of licenses they can have in the state. This number was agreed upon by the MSPA, the Massachusetts Food Association, the Beer Distributors of Massachusetts and Wine and Spirits Wholesalers of Massachusetts in 2011, Melion said.

If Cumberland Farm’s ballot question succeeds, the number of licenses per chain retailer would increase to 12 in 2021, 15 in 2022, 18 in 2023 and the cap would be eliminated entirely on January 1, 2024. The licenses would still be subject to approval by local authorities, as well as limited per community based on population.

According to Mellion, the caps exist “to prevent marketplace control.”

“What Cumberland Farms did was they exempted themselves from the capping system but wrote in ‘at the discretion of the local municipality,’ so if the local municipality wants every Cumberland Farms in their community to have a liquor license, they can do that,” he said.

Matthew Durand, head of public policy for Cumberland Farms, disagrees that the ballot question is unconstitutional.

“These are important issues that are closely related and mutually dependent, which is why the attorney general properly certified our petition last year, and is now preparing to defend it in court,” he wrote in a statement to Brewbound.

Durand added that the company has the support of several chain retailers, including Walmart.

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