In 1934, how could Fay Brown legally sell beer at his Hutchinson restaurant?

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In 1934, how could Fay Brown legally sell beer at his
Hutchinson restaurant?

By Jim Potter

Steve Harmon, Hutchinson, Kansas, historian, called me recently to help him solve a mystery about state prohibition that was triggered by one of his incredible, local, historical photographs. Steve couldn’t explain how a Hutchinson restaurant on Main Street in 1934 could advertise beer, when state legislation permitting the sale of 3.2% beer (by weight) wasn’t passed until 1937, when it classified the drink as a non-intoxicating “cereal malt beverage.” I didn’t have an answer.

The photograph Steve shared with me was of a parade passing a business at 207-A North Main Street that advertised on its awning. In bold caps it spelled B-E-E-R. Below, in smaller lettering, it named its owner, Fay Brown. (Since Steve knew that Brown was a relative of mine, he might have thought I could share some family secrets about evading liquor laws. As a child, I called the former Reno county sheriff, “Uncle Fay,” even though I was a first cousin. Back then, I was more interested in becoming a deputy sheriff than I was in selling booze.)

On each side of Brown’s name on the awning, two breweries were advertised: Hamms, and Schlitz. Brown’s advertising didn’t explain that the beer being served was 3.2% alcohol.

Brown purchased the business, Office Buffet Lunch, at 207-A North Main during the first week of January 1934. He changed the name to “Fay Brown 3.2 Beer and Lunch Stand,” but he also advertised it as “Fay Brown’s Beer Parlor.”

At the time of the parade, the fact that the beer was non-intoxicating should have been abundantly clear to a citizenry who had lived in a state prohibiting the manufacture and sales of intoxicating liquors since 1880, banned possession for personal use in the state’s strict “Bone Dry” law in 1917, and understood that the Eighteenth Amendment, ratified in 1919, had banned the manufacture, sale, and transportation of intoxicating liquors until its repeal on December 5, 1933. Federal law allowed sales on that date, but individual state and local laws still restricted it.

Apparently, Congress couldn’t wait for the twenty-first Amendment to be ratified, so eight months prior to the country ending Prohibition, they passed a law allowing 3.2% beer to be sold.

From what I can tell, on March 22, 1933, President Franklin D. Roosevelt created confusion about the legality of 3.2% beer sales after he signed the Cullen-Harrison Act, enacted by Congress a day earlier. It legalized the sale in the United States, of beer with an alcohol content of 3.2% and wine of a similarly low alcohol content, thought to be too low to be intoxicating. After Roosevelt remarked, “I think this would be a good time for a beer,” the public may have taken his comment literally.

Even though the Cullen-Harrison Act explained that states had to pass their own similar legislation to legalize the sale of the low alcohol beverages within their borders, the legislation created a period of doubt about enforcement of the law. Kansas Governor Alf Landon remained a supporter of state prohibition, but Kansas Attorney General Roland Boynton preferred a wait-and-see approach. In March 1934, he issued an official opinion advising local officials and county attorneys on handling 3.2% sales. He clarified that under Kansas law, beverages were not illegal per se, unless proven to be intoxicating, leaving the determination up to individualized local courts.

Since the state law outlawed intoxicating liquor—and 3.2% beer was supposedly not intoxicating—the attorney general was waiting for a test case.

Between the summer of 1933 and the November 1934 statewide referendum rejecting the end of statewide prohibition, 3.2% beer was widely dispensed at cafes, drugstore counters, and restaurants throughout Kansas. Law enforcement continued to hesitate on responding to the transactions because of the pending vote on prohibition.

I figured that after Kansas voters rejected the constitutional amendment that would have repealed statewide prohibition, 3.2% beer sales would have ended. Instead, to this day, I continue to learn of additional beer licenses that were issued in Hutchinson and around Kansas up to May 1, 1937, when the state legalized cereal malt beverage (3.2% beer).

History books and online encyclopedias continue to inform the reader that Kansas was a “dry” state until 1948, but primary research shows that 3.2% beer licenses were issued in 1934 and thereafter.

Thanks to the incredibly large, legal, loophole created by the Cullen-Harrison Act in 1933, Kansas politicians spent the next four years hopelessly disoriented, wandering in circles, while in the midst of the Great Depression.

My research of beer sales in Kansas during the “Dirty Thirties” is as clear as visibility during a “black blizzard” when thick clouds of airborne topsoil blotted out the sun. I’m still confused as to if and when beer was not intoxicating and I continue to question how municipalities could issue 3.2% beer licenses if the drink was against state law.