City of Ashland v. Kentucky Alcoholic Beverage Control Board

982 S.W.2d 210, 1998 Ky. App. LEXIS 37, 1998 WL 226224
CourtCourt of Appeals of Kentucky
DecidedMay 8, 1998
DocketNo. 96-CA-002873-MR
StatusPublished

This text of 982 S.W.2d 210 (City of Ashland v. Kentucky Alcoholic Beverage Control Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Ashland v. Kentucky Alcoholic Beverage Control Board, 982 S.W.2d 210, 1998 Ky. App. LEXIS 37, 1998 WL 226224 (Ky. Ct. App. 1998).

Opinion

OPINION

JOHNSON, Judge.

The City of Ashland (the City) has appealed from the judgment of the Franklin Circuit Court which affirmed the determination of the Kentucky Alcoholic Beverage Control Board (the Board) that the City was without authority to impose a quota on the number of malt beverage licenses to be issued in the City and that the City’s ordinance prohibiting the sale of malt beverages from a store that sells groceries and/or gasoline is not enforceable as it conflicts with Kentucky Revised Statutes (KRS) 243.280(2). We affirm.

The issues in this appeal concern the proper interpretation to be afforded KRS 242.1292, a statute entitled, “Limited sale precincts in cities of second class.” Ashland is the only city of the second class that has elected to utilize this statute which was enacted in 1980 and designed to relieve economic distress in those precincts adversely affected by the prohibition against the sale of alcoholic beverages. KRS 242.1292(2). See United Dry Forces v. Citizens for a Progressive Community, Ky., 635 S.W.2d 478 (1982), and United Dry Forces v. Lewis, Ky., 619 S.W.2d 489 (1981).

Elections were held in four precincts in Ashland that the governing body had declared to be suffering' from an economic hardship due to prohibition. KRS 242.1292(10)(a). All four precincts voted “wet.” Pursuant to the enabling legislation, the City passed an ordinance in 1981, which contains a comprehensive scheme for the control and licensing of alcohol. This case involves the question of the validity of two sections of the ordinance: (1) § 34(g), which prohibits the sale of alcohol at grocery stores and gasoline stations,1 and (2) the City’s definition of a license as meaning a license to sell “distilled spirits, wine or malt beverages or any combination thereof.”

The City finds express authority to support the validity of its ordinance and the scheme it has created in KRS 242.1292(5) and (6), which subsections read in their entirety as follows:

(5) If a majority of the votes cast in any limited sale precinct in which an election is held pursuant to this section are in favor of the sale of alcoholic beverages in that precinct, the governing body of the city shall by ordinance create or provide for the [212]*212office of city alcoholic beverage control administrator and shall adopt a comprehensive regulatory ordinance covering the licensing and operation of establishments for the sale of alcoholic beverages within a limited sale precinct. In its discretion the governing body may provide that:
(a) Only three (3) licenses permitting the package sale at retail of alcoholic beverages shall be granted within the territorial limits of any limited sale precinct.
(b) Only four (4) licenses to sell alcoholic beverages by the drink for consumption on the premises by the general public shall be granted in any one (l) limited sale precinct. One (1) such license in each limited sale precinct may be reserved for grant to any newly established hotel, motel or inn containing not less than fifty (50) sleeping units and having dining facilities for not less than one hundred (100) persons. The remaining three (3) licenses may be granted to a hotel, motel or inn meeting the aforestated requirements or to bona fide restaurants open to the general public having dining facilities for not less than one hundred (100) persons; and further provided that additional licenses to sell alcoholic beverages by the drink for consumption on the premises may be granted to social membership clubs established and maintained for the benefit of members only by bona fide fraternal or veterans organizations.
(6) The governing body may also incorporate in the regulatory ordinance such other reasonable rules and regulations as may be necessary or desirable for the proper administration and enforcement of this section and for the maintenance of public order in a limited sale precinct, and for the issuance of any licenses permitted by KRS 243.070; provided that any rule or regulation adopted in the regulatory ordinance shall conform to the requirements of KRS 241.190.

In February 1996, the appellee, Ashland, Inc., d/b/a/ SuperAmerica (SuperAmerica) applied to the City for licenses to sell beer at two locations within the city’s precincts controlled by the ordinance. The City denied both applications pursuant to § 34(g) of the ordinance. See note 1, supra. A license for Store #5603 was denied for the additional reason that there were no package licenses available in the precinct in which the store was located.

These decisions were appealed to the Board which, as previously stated, determined that the City could not place a quota on the sale of malt beverages or prohibit the sale of beer from a grocery store or gasoline station. In its opinion, the Board further held as follows:

10. The city of Ashland adopted a regulatory ordinance pursuant to KRS 242.1292(5) and (6) purporting to regulate the licensing and operation of establishments for the sale of alcoholic beverages in the city of Ashland.
11. Ashland’s power to regulate the traffic in alcoholic beverages pursuant to KRS 242.1292(5) and (6) is subject to approval by the Commonwealth of Kentucky through the Department of Alcoholic Beverage Control. KRS 241.190.
12. The city of Ashland bears the burden of seeking and obtaining the approval of the Department of Alcoholic Beverage Control of Ashland’s regulatory ordinance.
13. The parties to this action agree, and the Board finds, that Ashland’s regulatory ordinance has not been approved by the Department of Alcoholic Beverage Control pursuant to KRS 242.1292(6) and KRS 241.190.

The Board ordered the City to issue a retail beer license to SuperAmerica at both its locations.2

The City appealed the Board’s decision to the Franklin Circuit Court. In a well reasoned opinion, the court affirmed the Board in all respects, except it vacated that portion of the Board’s order that determined the

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United Dry Forces v. Lewis
619 S.W.2d 489 (Kentucky Supreme Court, 1981)
Commonwealth v. Do, Inc.
674 S.W.2d 519 (Kentucky Supreme Court, 1984)
United Dry Forces v. Citizens for a Progressive Community
635 S.W.2d 478 (Kentucky Supreme Court, 1982)
Whitehead v. Estate of Ray Bravard
719 S.W.2d 720 (Kentucky Supreme Court, 1986)
City of Louisville v. Michael A. Woods, Inc.
883 S.W.2d 881 (Court of Appeals of Kentucky, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
982 S.W.2d 210, 1998 Ky. App. LEXIS 37, 1998 WL 226224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-ashland-v-kentucky-alcoholic-beverage-control-board-kyctapp-1998.