A lawyer for an Omaha convenience store chain said Tuesday it was unfair to allow Nebraska bars and restaurants to sell "to-go" cocktails, while prohibiting convenience stores from peddling beer through their take-out windows.
James Carson, an attorney for Mega Saver stores, told a state liquor board that a new state law — passed this spring to continue a COVID-related exception — was unconstitutional "special legislation" that favors bars and restaurants but discriminates against convenience stores.
Carson argued that the Nebraska Liquor Control Commission should dismiss charges of illegal sales of alcohol to occupants of motor vehicles through take-out windows at nine Mega Saver locations.
The violations occurred on July 1, about a month after state lawmakers and Gov. Pete Ricketts passed a law that continued the governor's emergency pandemic order allowing bars and restaurants to sell to-go cocktails and growlers of beer in sealed containers.
The law was designed to help bars and restaurants whose business plummeted during the pandemic. At least 20 other states also legalized to-go cocktails to aid those businesses.
Ricketts joked that relaxing the carryout rules for alcohol has been his most popular action as governor.
But Carson said if the purpose was to protect public health by avoiding trips inside an establishment, the changes should have included allowing convenience stores to sell through drive-up windows.
Carson said that the Mega Saver stores had sold beer and liquor through its take-out windows while the governor's emergency order, enacted in March 2020, was in effect. But he said that store managers were unaware that Ricketts had rescinded his order in March of this year, and they had continued the practice.
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That led a state trooper to purchase beer through take-out windows at the nine Mega Saver outlets on July 1.
Carson's arguments that the law was unconstitutional "special legislation" fell on deaf ears during the liquor commission's meeting Tuesday.
Hobert Rupe, executive director of the commission, said the panel has no authority to rule on the constitutionality of state laws, but suggested that Mega Saver could go to court to challenge the law. Convenience stores could also ask the state Legislature to change the law — several states already permit sales of alcohol through take-out windows.
The commission voted 3-0 to suspend the Mega Saver's liquor license for 45 days, or pay a fine.
Carson, the attorney for Mega Saver, said it had not yet been decided if the stores will challenge the law, as well as the penalties ordered Tuesday, in court.
State Sen. Tom Briese of Albion, who heads the legislative committee that handles liquor issues, said he doesn't recall the issue of extending to-go sales to convenience stores coming up for debate earlier this year. There was debate about whether allowing to-go sales could increase drunken driving.
"From my perspective, I'm willing to take a look at anything we can do to help small business," Briese said Tuesday. "At this point I don't know if it's a wise policy."