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HOUSE DOCKET, NO. 1735 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 253
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Daniel Cahill
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act relative to the sale of wines and malt beverages by food stores.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Daniel Cahill10th Essex1/18/2023 1 of 13
HOUSE DOCKET, NO. 1735 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 253
By Representative Cahill of Lynn, a petition (accompanied by bill, House, No. 253) of Daniel
Cahill relative to the sale of wines and malt beverages by food stores. Consumer Protection and
Professional Licensure.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act relative to the sale of wines and malt beverages by food stores.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 138 of the General Laws, as appearing in the 2020 Official Edition,
2is hereby amended by inserting, after section 15A, the following:-
3 Section 15B. Grant of food store licenses for the sale of wines and malt beverages not to
4be consumed on premises; operation of subject premises; regulation of packaging
5 (a) Local licensing authorities that have been authorized to grant licenses under section
615 of this chapter are hereby authorized to grant an additional class of licenses, known as a food
7store license, for the sale of wines and malt beverages not to be consumed on the premises.
8 (b) Except as otherwise provided, a food store license shall in every way be treated as a
9license granted under section 15 of this chapter and shall be governed by all the statutes and
10regulations applicable thereto. 2 of 13
11 (c) No application for the issuance, transfer, or annual renewal of a food store license
12shall be granted under this section unless the applicant demonstrates that the subject premises:
13 (1) is a permanent non-mobile establishment within the geographic jurisdiction of the
14local licensing authority;
15 (2) regularly stocks and sells to consumers various types of perishable or nonperishable
16foods, not to be consumed on the premises, in at least three of the following four staple food
17categories: (i) vegetable or fruit products; (ii) meat, poultry, or fish products; (iii) dairy products
18or plant-based substitutes; and (iv) bread or cereal products;
19 (3) has adopted an age verification and employee training policy satisfying the minimum
20requirements of section 15C of this chapter; and
21 (4) dedicates not more than 35% of the total interior selling area accessible to customers,
22as measured in square feet of floor space on the horizontal plane, for the display of wines and
23malt beverages to be sold under the authority of a food store license, provided that such
24dedicated display area need not be contiguous but shall not in any case exceed 10,000 square feet
25in the aggregate.
26 (d) Notwithstanding section 33 of this chapter and section 5 of chapter 136, the sale of
27wines and malt beverages shall be permitted under this section during those hours which the
28subject premises may otherwise lawfully conduct business with consumers in that city or town,
29provided that a local licensing authority may uniformly prohibit the sale of wines and malt
30beverages under this section between the hours of 11:00 p.m. and 8:00 a.m., or may uniformly
31require that such sales occurring between said hours shall be made as part of a transaction that 3 of 13
32includes one or more nondurable consumer goods not subject to regulation as alcoholic
33beverages under this chapter.
34 (e) The commission may uniformly prohibit the sale of some or all types of wines and
35malt beverages under this section where any single container within the package holds more than
36100 fluid ounces or less than 10 fluid ounces, provided that such sale of wines and malt
37beverages shall otherwise be permitted where the package consists or is comprised of:
38 (1) one or more manufacturer-sealed containers meeting the standards set forth at section
395.47a of title 27 of the code of federal regulations; or
40 (2) any refillable and re-sealable container commonly known as a growler, which
41container may be refilled on the premises by a duly authorized and trained employee, provided
42that such container once refilled shall be re-sealed by said employee and shall remain sealed
43while on the premises.
44 (f) The commission shall, after notice and hearing under chapter 30A, promulgate such
45regulations as are necessary to implement this section.
46 Section 15C. Age verification and employee training policy; adoption and enforcement
47by subject premises as condition of food store license
48 (a) Every premises licensed under section 15B of this chapter shall adopt and enforce an
49age verification and employee training policy for the prevention of the unlawful sale of alcoholic
50beverages to persons under 21 years of age, which policy shall require the presentation of a
51reliable form of identification by all customers for all purchases of alcoholic beverages,
52regardless of the actual or apparent age of the customer. 4 of 13
53 (b) For purposes of this section, a reliable form of identification shall mean such forms of
54identification for which the subject premises has implemented reasonable measures by which to
55verify the validity and authenticity thereof with respect to the presenting customer, consistent
56with the preceding subsection, and shall include without limitation those forms of identification
57that may be reasonably relied upon for purposes of the second paragraph of section 34B of this
58chapter, provided that the scope and effect of said paragraph shall not in any way be modified or
59expanded by the requirements of this section.
60 (c) Nothing in this section shall prohibit the subject premises from adopting and
61enforcing additional age verification and employee training policies beyond the requirements of
62this section, nor in any way limit the applicability of section 69 of this chapter, nor otherwise be
63construed as affirmatively requiring the sale of an alcoholic beverage to any customer.
64 (d) The commission shall, after notice and hearing under chapter 30A, promulgate such
65regulations as are necessary to implement this section.
66 Section 15D. Form of application for food store licenses; collection and disposition of
67application fees
68 (a) Applications for the issuance, transfer, or annual renewal of a food store license under
69section 15B of this chapter shall be made to the local licensing authority upon standard forms
70issued and maintained by the commission, provided that each such application granted by the
71local licensing authority shall be subject to approval by the commission to ensure compliance
72with this chapter before the license may be issued, transferred, or annually renewed.
73 (b) At the discretion of the commission, and as reflected by the form of application issued
74and maintained under the preceding subsection, an applicant may be required to demonstrate that 5 of 13
75the subject premises complies with subsection (c) of said section 15B through such manner of
76commonly available documentary evidence as may be specified by the commission, provided
77that, in the alternative to any such discretionary requirement, a rebuttable presumption of such
78compliance sufficient for the submission of a facially complete application shall arise:
79 (1) in the case of an application for the issuance or transfer of a food store license, if the
80applicant submits:
81 (i) with respect to paragraphs (c)(1) and (c)(4) of said section 15B, a sufficiently detailed
82floorplan of the subject premises;
83 (ii) with respect to paragraph (c)(2) of said section 15B, evidence that the subject
84premises is an authorized “retail food store” under section 3(o)(1) of the federal Food and
85Nutrition Act of 2008, as amended; and
86 (iii) with respect to paragraph (c)(3) of said section 15B, a copy of all applicable written
87policies then in effect; or
88 (2) in the case of an application for the annual renewal of a food store license, if the
89applicant submits under the pains and penalties of perjury an affirmation of such compliance.
90 (c) A local licensing authority may, upon its grant of an application for the issuance,
91transfer, or annual renewal of a food store license, require that the applicant pay to the local
92licensing authority a fee in an amount to be determined by the local licensing authority, which
93amount shall be uniformly applied and shall not exceed 110% of the equivalent local fee
94imposed for licenses granted under section 15 of this chapter. 6 of 13
95 (d) Upon approval by the commission of an application for the issuance, transfer, or
96annual renewal of a food store license, but before such approval may take effect, the applicant
97shall be required to pay to the commission:
98 (1) in the case of an application for the issuance or transfer of a food store license, a fee
99in the amount of $5,000; or
100 (2) in the case of an application for the annual renewal of a food store license, a fee in the
101amount of $5,000 plus 0.25% of gross receipts from any wines and malt beverages sold at the
102subject premises over the 12 full calendar months immediately preceding the expiration date of
103the current license, provided that the total amount due under this paragraph shall not exceed
104$10,000 per annual renewal.
105 (e) For purposes of section 27 of this chapter, fees payable:
106 (1) to a local licensing authority under subsection (c) of this section shall be treated as
107fees for a license authorized to be granted by the local licensing authority; and
108 (2) to the commission under subsection (d) of this section, except as provided by section
1092JJJJJ of chapter 29, shall be treated as fees for a license authorized to be granted by the
110commission.
111 (f) The commission shall, after notice and hearing under chapter 30A, promulgate such
112regulations as are necessary to implement this section.
113 Section 15E. Number of food store licenses; holding or controlling multiple licenses
114 (a) Food store licenses authorized to be granted in a city or town under section 15B of
115this chapter shall be in addition to those licenses otherwise authorized to be granted under 7 of 13
116sections 15 and 17 of this chapter, and shall not be counted as a license for purposes of
117determining the number of licenses available to be issued under said sections 15 and 17.
118 (b) The number of food store licenses that may be issued shall be determined at the
119discretion of each local licensing authority and may be revised by notification to the commission
120not more frequently than once per calendar quarter, provided that the number of food store
121licenses:
122 (1) newly issued, in any one year, shall not be more than twice the total number of
123licenses authorized to be granted in that city or town under sections 15 and 17 of this chapter,
124rounded down to the nearest whole number; and
125 (2) issued or available to be issued, overall, shall not be less than half the total number of
126licenses authorized to be granted in that city or town under sections 15 and 17 of this chapter,
127rounded up to the nearest whole number.
128 (c) A local licensing authority shall not deny an application for the issuance, transfer, or
129annual renewal of a food store license on the basis that the applicant holds or controls multiple
130licenses granted under sections 15 or 15B of this chapter, provided that no application for the
131issuance or transfer of a food store license shall be granted if as a result the applicant would hold
132or control more than 15 food store licenses in any one county of the commonwealth.
133 (d) The commission shall, after notice and hearing under chapter 30A, promulgate such
134regulations as are necessary to implement this section.
135 Section 15F. Effect of food store licenses on proximate competing premises 8 of 13
136 (a) Upon the issuance or transfer of a food store license to a premises not previously in
137the business of selling alcoholic beverages to consumers, the operator of any proximate
138competing premises lawfully conducting business at the time of such issuance or transfer may
139apply for a small business support grant from the fund established by section 2JJJJJ of chapter 29
140and administered by the commission in accordance with this section.
141 (b) For purposes of this section, a proximate competing premises means a permanent
142non-mobile establishment then currently licensed under section 15 of this chapter, where said
143license is held or controlled by an employer not required to offer earned paid sick time under
144section 148C of chapter 149, provided that said establishment is located:
145 (1) within 2,500 feet of the premises for which the food store license has been issued or
146transferred, in the case of a city; or
147 (2) within 5,000 feet of the premises for which the food store license has been issued or
148transferred, in the case of a town.
149 (c) Applicants deemed to be a proximate competing premises by the commission shall be
150eligible to receive not more than ten consecutive annual payments in the nature of a small
151business support grant, provided that each such payment shall be in an amount determined by the
152commission:
153 (1) by dividing the balance of the fund by the total number of food store licenses serving
154as the basis for at least one grant application by a proximate competing premises; and 9 of 13
155 (2) by further dividing the quotient from the preceding paragraph, for each such food
156store license, by the total number of proximate competing premises that applied for a grant with
157respect to that particular food store license.
158 (d) Nothing in this section shall prohibit one qualified applicant from receiving more than
159one small business support grant from the fund, where said applicant meets the definition of a
160proximate competing premises with respect to more than one food store license.
161 (e) A local licensing authority shall not deny an application for the issuance, transfer, or
162annual renewal of a food store license on the basis of limiting competition with or proximity to
163any other premises licensed under this chapter, nor on the basis that the subject premises may
164have been eligible for a different class of license granted under this chapter, provided that
165nothing in this subsection shall require a local licensing authority to grant an application for the
166issuance or transfer of a food store license where the sale of wines and malt beverages would be
167inconsistent with a valid municipal zoning law enacted under chapter 40A and effective at the
168time such application was made, provided further that such application shall not be precluded
169where the subject premises obtains a variance or exemption from the municipal zoning law in
170question, including for the continuance of a preexisting nonconforming use.
171 (f) The commission shall, after notice and hearing under chapter 30A, promulgate such
172regulations as are necessary to implement this section.
173 SECTION 2. Section 25A of said chapter 138 is hereby amended by inserting, after the
174final paragraph, the following:- 10 of 13
175 (c) Notwithstanding the preceding subsections, and for the purpose of attaining a quantity
176discount offered by a wholesaler licensed under section 18, any person or entity that holds or
177controls one or more licenses issued under sections 15 and 15B may either:
178 (1) enter into a cooperative agreement with one or more other persons or entities, not to
179exceed 15 parties in total, each holding or controlling not more than 15 licenses issued under said
180sections 15 and 15B, to make joint purchases of alcoholic beverages in larger quantities than
181might otherwise be purchased, provided that nothing in this paragraph shall authorize the
182distribution of alcoholic beverages to anyone except the parties to any such agreement according
183to their respective share of the joint purchase as attributed to each licensed premises; or
184 (2) make a combined purchase of alcoholic beverages for two or more of its own licenses
185issued under said sections 15 and 15B, provided that the number of licenses for which any one
186combined purchase may be made under this paragraph shall not exceed the aggregate number of
187licenses for which a joint purchase may be made through a cooperative agreement under the
188preceding paragraph.
189 SECTION 3. Section 25A of said chapter 138 is hereby further amended by striking out
190the words “No licensee authorized under this chapter to sell alcoholic beverages to wholesalers
191or retailers shall-- (a) Discriminate” and inserting in place thereof the following:-
192 (a) No licensee authorized under this chapter to sell alcoholic beverages to wholesalers or
193retailers shall discriminate
194 SECTION 4. Section 25A of said chapter 138 is hereby further amended by striking out
195the words “; All price lists” and inserting in place thereof the following:- 11 of 13
196 . (b) All price lists
197 SECTION 5. Section 15C of said chapter 138, as enacted by section 1 of this Act, is
198hereby amended by striking out subsection (a) and inserting in place thereof the following:-
199 (a) Every establishment licensed under section 15B of this chapter shall adopt and
200enforce an age verification and employee training policy for the prevention of the unlawful sale
201of alcoholic beverages to persons under 21 years of age, which policy shall require:
202 (1) the presentation of a reliable form of identification by all customers for all purchases
203of alcoholic beverages, regardless of the actual or apparent age of the customer; and
204 (2) the verification of such identification by means of an optical barcode scanner or
205magnetic card reader, or such other comparable technology as may be approved by the
206commission, provided that the commission shall establish alternative measures of verification for
207those forms of identification, if any, upon which a licensee may reasonably rely for purposes of
208the second paragraph of section 34B but which are not capable of verification by technological
209means that are both commercially available and practically applied for the intended use.
210 SECTION 6. Section 34B of said chapter 138 is hereby amended by inserting, in the
211second paragraph, after the words “military identification card” the following:-
212 or an out of state license that has been validated by the means described by paragraph
213(a)(2) of section 15C
214 SECTION 7. Section 34B of said chapter 138 is hereby further amended by striking out,
215in the second paragraph, the words “a liquor purchase identification card, or an identification 12 of 13
216card issued under section 8E of chapter 90, or motor vehicle license issued pursuant to said
217section eight” and inserting in place thereof the following:-
218 particular forms of identification named in this paragraph
219 SECTION 8. Section 15E of said chapter 138, as enacted by section 1 of this Act, is
220hereby amended by striking out, in subsection (c), the word “county” and inserting in place
221thereof the following:- city or town
222 SECTION 9. Section 20 of said chapter 138, as so appearing, is hereby amended by
223inserting, after the final paragraph, the following:-
224 A person or entity making a combined purchase of alcoholic beverages under paragraph
225(c)(2) of section 25A is hereby permitted under this section to store such alcoholic beverages at a
226licensed and bonded warehouse, provided that nothing in this paragraph shall authorize the resale
227of such alcoholic beverages other than at retail by the licensed establishment to a consumer in the
228normal course of business.
229 SECTION 10. Chapter 29 of the General Laws, as so appearing, is hereby amended by
230inserting, before section 3, the following:-
231 Section 2JJJJJ. There shall be established and set upon the books of the commonwealth a
232separate fund, which shall consist of all fees collected by the alcoholic beverages control
233commission under section 15D of chapter 138. Amounts credited to the fund shall be available,
234without further appropriation, to the commission for the payment of small business support
235grants as provided by section 15F of said chapter 138. 13 of 13
236 SECTION 11. For the avoidance of doubt and without limitation to the general provisions
237of section 15E of chapter 138 of the General Laws, as enacted by this Act, a food store license
238shall not be subject to the second sentence of section 15 of chapter 138, and shall not be
239considered a license issued under said section 15 for purposes of determining the number of
240marijuana retailers that may be approved in any city or town under section 3 of chapter 94G.
241 SECTION 12. The commission shall maintain a ratio of at least one investigator per 250
242outstanding licenses issued under said chapter 138 by a local licensing authority.
243 SECTION 13. The commission shall establish a working group consisting of designated
244representatives of each of the three tiers of the beverage alcohol marketplace, respectively,
245including, for the retail tier, a representative of food stores and a representative of package
246stores; of consumer advocates; of local licensing authorities; of the governor; of the attorney
247general; and of the treasurer. The working group shall study and make findings as to the types
248and varieties of packaged alcoholic beverages stocked and sold by the various classes of off-
249premises licensees within the commonwealth, for the purpose of recommending the maintenance
250or modification of public policies to encourage market efficiency and discourage market
251dominance in any tier of the beverage alcohol marketplace. The working group shall be
252convened within 6 months from the enactment of this Act, and shall issue a report of its findings
253and recommendations to the commission within 18 months thereafter.
254 SECTION 14. Sections 5 through 8 of this Act, inclusive, shall take effect on
255 January 1, 2024.