City of Louisville v. Michael A. Woods, Inc.

883 S.W.2d 881, 1993 Ky. App. LEXIS 69, 1993 WL 166937
CourtCourt of Appeals of Kentucky
DecidedMay 21, 1993
Docket92-CA-1529-S, 92-CA-1712-S, 92-CA-1761-S
StatusPublished
Cited by8 cases

This text of 883 S.W.2d 881 (City of Louisville v. Michael A. Woods, Inc.) 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 Louisville v. Michael A. Woods, Inc., 883 S.W.2d 881, 1993 Ky. App. LEXIS 69, 1993 WL 166937 (Ky. Ct. App. 1993).

Opinion

HOWERTON, Judge.

The City of Louisville appeals from a judgment of the Jefferson Circuit Court, Second Division, in which Judge Edmund P. Karem declared City of Louisville Ordinance § 111.-053 invalid as being in conflict with KRS 244.120 and 804 KAR 5:060. The cross-appellants, Michael A. Woods, Inc., d/b/a The Godfather; and Envy, Inc., d/b/a Dancers West, present an issue we need not consider. They complain that the trial court denied their motion to alter the judgment and declare additional ordinances invalid. The trial court did not decide the issues, and we will indicate now that we affirm as to the cross-appeal.

Lee Krugler, Baker Tinsley, Gwendolyn Durbin, Barbara Burton, Christine Repp, Jean Lee, and Erica Coyle appeal from a judgment of the Jefferson Circuit Court, Fifth Division. In that case, Judge Earl O’Bannon reversed an opinion of District [882]*882Judge William P. Ryan, Jr., which had declared Louisville Ordinance § 111.053 invalid and unenforceable. Additional parties were involved in the district and circuit court cases, but only those named above have appealed the reversal which exposed them to liability for violation of the city ordinance.

These cases have had a strange trip through the courts of Jefferson County. The Commonwealth attempted to prosecute some owners, managers, and dancers who were charged with violating Ordinance § 111.050. District Judge Ryan dismissed the charges and declared the ordinance invalid and unenforceable on January 8,1991. The Commonwealth appealed, and Circuit Judge O’Ban-non reversed that decision on November 27, 1991. The case remained open, however, until June 22, 1992, when he denied a motion to amend or vacate. We granted discretionary review.

The declaratory judgment action was decided in Judge Karem’s court on June 17, 1992, and Judge Karem’s opinion adopted the opinion of District Judge Ryan, which had already been reversed by Judge O’Bannon. Judge Karem wrote, “[i]t [Judge Ryan’s opinion] speaks with such clarity on the issue that in the interest of judicial economy this Court adopts the opinion of Judge Ryan-” While we will acknowledge that Judge Ryan’s opinion is well-written, we can only conclude that as to clarity, it is clearly erroneous. We therefore reverse in Appeal No. 92-CA-1529-S and affirm in Appeal No. 92-CA-1761-S.

Although some parties attempt to present other constitutional issues involving such things as free speech and discrimination, we note that none of the questions have been addressed by the trial courts, and we will consider only one issue. The only issue before us is whether Louisville City Ordinance § 111.053, which forbids nude or nearly-nude activities on ABC Board licensed premises in the City, is in “conflict” with a “comprehensive scheme” of state regulation, and therefore void and unenforceable pursuant to the Kentucky “home rule” statute, KRS 82.082. The owners, managers, and dancers argue that it is, while the Commonwealth and the City of Louisville argue that it is not. We agree that it is not.

KRS 82.082 provides in pertinent part as follows:

(1) A city may exercise any power and perform any function within its boundaries ... that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.
(2) A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of KRS Chapters 95 and 96.

KRS 244.120(1) reads, “[n]o person licensed to sell alcoholic beverages at retail shall cause, suffer, or permit the licensed premises to be disorderly.” Section (2) defines some acts which might constitute a disorderly premise, but none mention anything about how one’s body is clothed or unclothed. In furtherance of this statutory requirement, the ABC Board adopted Administrative Regulation 804 KAR 5:060 which concerns entertainment requirements and reads in part as follows:

NECESSITY AND FUNCTION; The types of entertainment provided by licensees of this department on the licensed premises varies widely throughout the state. The licensees of the smaller towns offer little or no entertainment and the metropolitan areas offer everything from strolling violin players to go-go dancing. It is, therefore, necessary for this board to prohibit certain types of entertainment on licensed premises which could be considered improper or immoral.
Section 1. No licensee shall knowingly or willfully allow in, upon or about his licensed premises lewd, immoral or obscene entertainment, activities or advertising materials including, but not limited to public display of actual or simulated sex acts, or the fondling or touching of genitalia or of the female breast.

This is the so-called “comprehensive scheme” by the legislature to regulate some conduct in licensed premises selling alcoholic beverages. We will make no attempt to interpret [883]*883what is meant by “lewd, immoral or obscene entertainment,” but we note that the language of this section also reads, “including, but not limited to,” and then it mentions displays of actual or simulated sex acts or the fondling or touching of genitalia or of the female breast. The mere language of “including, but not limited to” indicates that there is room for more regulation or at least more specifics for the prohibited “lewd, immoral or obscene entertainment.” We also note in the preamble declaring the necessity of the regulation that different cities and different size cities may very well desire to have more restrictive prohibitions on what entertainment is allowed in establishments serving alcoholic beverages.

Cities are required by statute to have an alcoholic beverage administrator. KRS 241.-170 provides that the administrator shall have the same qualifications as a board member and that the administrator will have full police powers and may inspect any premises where alcoholic beverages are manufactured, sold, stored, or otherwise trafficked in without a search warrant. KRS 241.190 further provides that the functions of a city administrator shall be the same with respect to city licenses and regulations as the functions of the board with respect to state licenses and regulations. This statute also reads “that no regulation adopted by a city administrator may be less stringent than the statutes relating to alcoholic beverage control or than the regulations of the board.” This would indicate clearly that cities may pass regulations concerning city licenses and that they may be more stringent than state statutes and regulations.

As a general rule, “home rule” included, a city may pass ordinances that are in addition to, yet not inconsistent with, state statutes and constitutional provisions.

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Cite This Page — Counsel Stack

Bluebook (online)
883 S.W.2d 881, 1993 Ky. App. LEXIS 69, 1993 WL 166937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-louisville-v-michael-a-woods-inc-kyctapp-1993.