CHAPTER 241 Alcoholic Beverages — Administration and Control

241.010. Definitions for KRS Chapters 241 to 244.

As used in KRS Chapters 241 to 244, unless the context requires otherwise:

  1. “Alcohol” means ethyl alcohol, hydrated oxide of ethyl or spirit of wine, from whatever source or by whatever process it is produced;
  2. “Alcoholic beverage” means every liquid, solid, powder, or crystal, whether patented or not, containing alcohol in an amount in excess of more than one percent (1%) of alcohol by volume, which is fit for beverage purposes. It includes every spurious or imitation liquor sold as, or under any name commonly used for, alcoholic beverages, whether containing any alcohol or not. It does not include the following products:
    1. Medicinal preparations manufactured in accordance with formulas prescribed by the United States Pharmacopoeia, National Formulary, or the American Institute of Homeopathy;
    2. Patented, patent, and proprietary medicines;
    3. Toilet, medicinal, and antiseptic preparations and solutions;
    4. Flavoring extracts and syrups;
    5. Denatured alcohol or denatured rum;
    6. Vinegar and preserved sweet cider;
    7. Wine for sacramental purposes; and
    8. Alcohol unfit for beverage purposes that is to be sold for legitimate external use;
    1. “Alcohol vaporizing device” or “AWOL device” means any device, machine, or process that mixes liquor, spirits, or any other alcohol product with pure oxygen or by any other means produces a vaporized alcoholic product used for human consumption; (3) (a) “Alcohol vaporizing device” or “AWOL device” means any device, machine, or process that mixes liquor, spirits, or any other alcohol product with pure oxygen or by any other means produces a vaporized alcoholic product used for human consumption;
    2. “Alcohol vaporizing device” or “AWOL device” does not include an inhaler, nebulizer, atomizer, or other device that is designed and intended by the manufacturer to dispense a prescribed or over-the-counter medication or a device installed and used by a licensee under this chapter to demonstrate the aroma of an alcoholic beverage;
  3. “Automobile race track” means a facility primarily used for vehicle racing that has a seating capacity of at least thirty thousand (30,000) people;
  4. “Bed and breakfast” means a one (1) family dwelling unit that:
    1. Has guest rooms or suites used, rented, or hired out for occupancy or that are occupied for sleeping purposes by persons not members of the single-family unit;
    2. Holds a permit under KRS Chapter 219; and
    3. Has an innkeeper who resides on the premises or property adjacent to the premises during periods of occupancy;
  5. “Board” means the State Alcoholic Beverage Control Board created by KRS 241.030 ;
  6. “Bottle” means any container which is used for holding alcoholic beverages for the use and sale of alcoholic beverages at retail;
  7. “Brewer” means any person who manufactures malt beverages or owns, occupies, carries on, works, or conducts any brewery, either alone or through an agent;
  8. “Brewery” means any place or premises where malt beverages are manufactured for sale, and includes all offices, granaries, mash rooms, cooling rooms, vaults, yards, and storerooms connected with the premises; or where any part of the process of the manufacture of malt beverages is carried on; or where any apparatus connected with manufacture is kept or used; or where any of the products of brewing or fermentation are stored or kept;
  9. “Building containing licensed premises” means the licensed premises themselves and includes the land, tract of land, or parking lot in which the premises are contained, and any part of any building connected by direct access or by an entrance which is under the ownership or control of the licensee by lease holdings or ownership;
  10. “Caterer” means a person operating a food service business that prepares food in a licensed and inspected commissary, transports the food and alcoholic beverages to the caterer’s designated and inspected banquet hall or to an agreed location, and serves the food and alcoholic beverages pursuant to an agreement with another person;
  11. “Charitable organization” means a nonprofit entity recognized as exempt from federal taxation under section 501(c) of the Internal Revenue Code (26 U.S.C. sec. 501(c) ) or any organization having been established and continuously operating within the Commonwealth of Kentucky for charitable purposes for three (3) years and which expends at least sixty percent (60%) of its gross revenue exclusively for religious, educational, literary, civic, fraternal, or patriotic purposes;
  12. “Cider” means any fermented fruit-based beverage containing seven percent (7%) or more alcohol by volume and includes hard cider and perry cider;
  13. “City administrator” means city alcoholic beverage control administrator;
  14. “Commercial airport” means an airport through which more than five hundred thousand (500,000) passengers arrive or depart annually;
    1. “Commercial quadricycle” means a vehicle equipped with a minimum of ten (10) pairs of fully operative pedals for propulsion by means of human muscular power and which: (16) (a) “Commercial quadricycle” means a vehicle equipped with a minimum of ten (10) pairs of fully operative pedals for propulsion by means of human muscular power and which:
      1. Has four (4) wheels;
      2. Is operated in a manner similar to that of a bicycle;
      3. Is equipped with a minimum of thirteen (13) seats for passengers;
      4. Has a unibody design;
      5. Is equipped with a minimum of four (4) hydraulically operated brakes;
      6. Is used for commercial tour purposes;
      7. Is operated by the vehicle owner or an employee of the owner; and
      8. Has an electrical assist system that shall only be used when traveling to or from its storage location while not carrying passengers.
    2. A “commercial quadricycle” is not a motor vehicle as defined in KRS 186.010 or 189.010 ;
  15. “Commissioner” means the commissioner of the Department of Alcoholic Beverage Control;
  16. “Consumer” means a person who purchases alcoholic beverages and who:
    1. Does not hold a license or permit issued by the department;
    2. Purchases the alcoholic beverages for personal consumption only and not for resale;
    3. Is of lawful drinking age;
    4. Receives the alcoholic beverages at a location other than a licensed premises; and
    5. Receives the alcoholic beverages in territory where the alcoholic beverages may be lawfully sold or received;
  17. “Convention center” means any facility which, in its usual and customary business, provides seating for a minimum of one thousand (1,000) people and offers convention facilities and related services for seminars, training and educational purposes, trade association meetings, conventions, or civic and community events or for plays, theatrical productions, or cultural exhibitions;
  18. “Convicted” and “conviction” means a finding of guilt resulting from a plea of guilty, the decision of a court, or the finding of a jury, irrespective of a pronouncement of judgment or the suspension of the judgment;
  19. “County administrator” means county alcoholic beverage control administrator;
  20. “Department” means the Department of Alcoholic Beverage Control;
  21. “Dining car” means a railroad passenger car that serves meals to consumers on any railroad or Pullman car company;
  22. “Discount in the usual course of business” means price reductions, rebates, refunds, and discounts given by wholesalers to distilled spirits and wine retailers pursuant to an agreement made at the time of the sale of the merchandise involved and are considered a part of the sales transaction, constituting reductions in price pursuant to the terms of the sale, irrespective of whether the quantity discount was:
    1. Prorated and allowed on each delivery;
    2. Given in a lump sum after the entire quantity of merchandise purchased had been delivered; or
    3. Based on dollar volume or on the quantity of merchandise purchased;
  23. “Distilled spirits” or “spirits” means any product capable of being consumed by a human being which contains alcohol in excess of the amount permitted by KRS Chapter 242 obtained by distilling, mixed with water or other substances in solution, except wine, hard cider, and malt beverages;
  24. “Distiller” means any person who is engaged in the business of manufacturing distilled spirits at any distillery in the state and is registered in the Office of the Collector of Internal Revenue for the United States at Louisville, Kentucky;
  25. “Distillery” means any place or premises where distilled spirits are manufactured for sale, and which are registered in the office of any collector of internal revenue for the United States. It includes any United States government bonded warehouse;
  26. “Distributor” means any person who distributes malt beverages for the purpose of being sold at retail;
  27. “Dry” means a territory in which a majority of the electorate voted to prohibit all forms of retail alcohol sales through a local option election held under KRS Chapter 242;
  28. “Election” means:
    1. An election held for the purpose of taking the sense of the people as to the application or discontinuance of alcoholic beverage sales under KRS Chapter 242; or
    2. Any other election not pertaining to alcohol;
  29. “Horse racetrack” means a facility licensed to conduct a horse race meeting under KRS Chapter 230;
  30. “Hotel” means a hotel, motel, or inn for accommodation of the traveling public, designed primarily to serve transient patrons;
  31. “Investigator” means any employee or agent of the department who is regularly employed and whose primary function is to travel from place to place for the purpose of visiting licensees, and any employee or agent of the department who is assigned, temporarily or permanently, by the commissioner to duty outside the main office of the department at Frankfort, in connection with the administration of alcoholic beverage statutes;
  32. “License” means any license issued pursuant to KRS Chapters 241 to 244;
  33. “Licensee” means any person to whom a license has been issued, pursuant to KRS Chapters 241 to 244;
  34. “Limited restaurant” means:
    1. A facility where the usual and customary business is the preparation and serving of meals to consumers, which has a bona fide kitchen facility, which receives at least seventy percent (70%) of its food and alcoholic beverage receipts from the sale of food, which maintains a minimum seating capacity of fifty (50) persons for dining, which has no open bar, which requires that alcoholic beverages be sold in conjunction with the sale of a meal, and which is located in a wet or moist territory under KRS 242.1244 ; or
    2. A facility where the usual and customary business is the preparation and serving of meals to consumers, which has a bona fide kitchen facility, which receives at least seventy percent (70%) of its food and alcoholic beverage receipts from the sale of food, which maintains a minimum seating capacity of one hundred (100) persons of dining, and which is located in a wet or moist territory under KRS 242.1244 ;
  35. “Local administrator” means a city alcoholic beverage administrator, county alcoholic beverage administrator, or urban-county alcoholic beverage control administrator;
  36. “Malt beverage” means any fermented undistilled alcoholic beverage of any name or description, manufactured from malt wholly or in part, or from any substitute for malt, and includes weak cider;
  37. “Manufacture” means distill, rectify, brew, bottle, and operate a winery;
  38. “Manufacturer” means a winery, distiller, rectifier, or brewer, and any other person engaged in the production or bottling of alcoholic beverages;
  39. “Minor” means any person who is not twenty-one (21) years of age or older;
  40. “Moist” means a territory in which a majority of the electorate voted to permit limited alcohol sales by any one (1) or a combination of special limited local option elections authorized by KRS Chapter 242;
  41. “Population” means the population figures established by the federal decennial census for a census year or the current yearly population estimates prepared by the Kentucky State Data Center, Urban Studies Center of the University of Louisville, Louisville, Kentucky, for all other years;
  42. “Premises” means the land and building in and upon which any business regulated by alcoholic beverage statutes is operated or carried on. “Premises” shall not include as a single unit two (2) or more separate businesses of one (1) owner on the same lot or tract of land, in the same or in different buildings if physical and permanent separation of the premises is maintained, excluding employee access by keyed entry and emergency exits equipped with crash bars, and each has a separate public entrance accessible directly from the sidewalk or parking lot. Any licensee holding an alcoholic beverage license on July 15, 1998, shall not, by reason of this subsection, be ineligible to continue to hold his or her license or obtain a renewal, of the license;
  43. “Primary source of supply” or “supplier” means the distiller, winery, brewer, producer, owner of the commodity at the time it becomes a marketable product, bottler, or authorized agent of the brand owner. In the case of imported products, the primary source of supply means either the foreign producer, owner, bottler, or agent of the prime importer from, or the exclusive agent in, the United States of the foreign distiller, producer, bottler, or owner;
  44. “Private club” means a nonprofit social, fraternal, military, or political organization, club, or nonprofit or for-profit entity maintaining or operating a club room, club rooms, or premises from which the general public is excluded;
  45. “Public nuisance” means a condition that endangers safety or health, is offensive to the senses, or obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property by a community or neighborhood or by any considerable number of persons;
  46. “Qualified historic site” means:
    1. A contributing property with dining facilities for at least fifty (50) persons at tables, booths, or bars where food may be served within a commercial district listed in the National Register of Historic Places;
    2. A site that is listed as a National Historic Landmark or in the National Register of Historic Places with dining facilities for at least fifty (50) persons at tables, booths, or bars where food may be served;
    3. A distillery which is listed as a National Historic Landmark and which conducts souvenir retail package sales under KRS 243.0305 ; or
    4. A not-for-profit or nonprofit facility listed on the National Register of Historic Places;
  47. “Rectifier” means any person who rectifies, purifies, or refines distilled spirits, malt, or wine by any process other than as provided for on distillery premises, and every person who, without rectifying, purifying, or refining distilled spirits by mixing alcoholic beverages with any materials, manufactures any imitations of or compounds liquors for sale under the name of whiskey, brandy, gin, rum, wine, spirits, cordials, bitters, or any other name;
  48. “Repackaging” means the placing of alcoholic beverages in any retail container irrespective of the material from which the container is made;
  49. “Restaurant” means a facility where the usual and customary business is the preparation and serving of meals to consumers, that has a bona fide kitchen facility, and that receives at least fifty percent (50%) of its food and alcoholic beverage receipts from the sale of food at the premises;
  50. “Retail container” means any bottle, can, barrel, or other container which, without a separable intermediate container, holds alcoholic beverages and is suitable and destined for sale to a retail outlet, whether it is suitable for delivery or shipment to the consumer or not;
  51. “Retail sale” means any sale of alcoholic beverages to a consumer, including those transactions taking place in person, electronically, online, by mail, or by telephone;
  52. “Retailer” means any licensee who sells and delivers any alcoholic beverage to consumers, except for manufacturers with limited retail sale privileges and direct shipper licensees;
  53. “Riverboat” means any boat or vessel with a regular place of mooring in this state that is licensed by the United States Coast Guard to carry one hundred (100) or more passengers for hire on navigable waters in or adjacent to this state;
  54. “Sale” means any transfer, exchange, or barter for consideration, and includes all sales made by any person, whether principal, proprietor, agent, servant, or employee, of any alcoholic beverage;
  55. “Service bar” means a bar, counter, shelving, or similar structure used for storing or stocking supplies of alcoholic beverages that is a workstation where employees prepare alcoholic beverage drinks to be delivered to customers away from the service bar;
  56. “Sell” includes solicit or receive an order for, keep or expose for sale, keep with intent to sell, and the delivery of any alcoholic beverage;
  57. “Small farm winery” means a winery whose wine production is not less than two hundred fifty (250) gallons and not greater than five hundred thousand (500,000) gallons in a calendar year;
  58. “Souvenir package” means a special package of distilled spirits available from a licensed retailer that is:
    1. Available for retail sale at a licensed Kentucky distillery where the distilled spirits were produced or bottled; or
    2. Available for retail sale at a licensed Kentucky distillery but produced or bottled at another of that distiller’s licensed distilleries in Kentucky;
  59. “State administrator” or “administrator” means the distilled spirits administrator or the malt beverages administrator, or both, as the context requires;
  60. “State park” means a state park that has a:
    1. Nine (9) or eighteen (18) hole golf course; or
    2. Full-service lodge and dining room;
  61. “Supplemental bar” means a bar, counter, shelving, or similar structure used for serving and selling distilled spirits or wine by the drink for consumption on the licensed premises to guests and patrons from additional locations other than the main bar;
  62. “Territory” means a county, city, district, or precinct;
  63. “Urban-county administrator” means an urban-county alcoholic beverage control administrator;
  64. “Valid identification document” means an unexpired, government-issued form of identification that contains the photograph and date of birth of the individual to whom it is issued;
  65. “Vehicle” means any device or animal used to carry, convey, transport, or otherwise move alcoholic beverages or any products, equipment, or appurtenances used to manufacture, bottle, or sell these beverages;
  66. “Vintage distilled spirit” means a package or packages of distilled spirits that:
    1. Are in their original manufacturer’s unopened container;
    2. Are not owned by a distillery; and
    3. Are not otherwise available for purchase from a licensed wholesaler within the Commonwealth;
  67. “Warehouse” means any place in which alcoholic beverages are housed or stored;
  68. “Weak cider” means any fermented fruit-based beverage containing more than one percent (1%) but less than seven percent (7%) alcohol by volume;
  69. “Wet” means a territory in which a majority of the electorate voted to permit all forms of retail alcohol sales by a local option election under KRS 242.050 or 242.125 on the following question: “Are you in favor of the sale of alcoholic beverages in (name of territory)?”;
  70. “Wholesale sale” means a sale to any person for the purpose of resale;
  71. “Wholesaler” means any person who distributes alcoholic beverages for the purpose of being sold at retail, but it shall not include a subsidiary of a manufacturer or cooperative of a retail outlet;
  72. “Wine” means the product of the normal alcoholic fermentation of the juices of fruits, with the usual processes of manufacture and normal additions, and includes champagne and sparkling and fortified wine of an alcoholic content not to exceed twenty-four percent (24%) by volume. It includes sake, cider, hard cider, and perry cider and also includes preparations or mixtures vended in retail containers if these preparations or mixtures contain not more than fifteen percent (15%) of alcohol by volume. It does not include weak cider; and
  73. “Winery” means any place or premises in which wine is manufactured from any fruit, or brandies are distilled as a by-product of wine or other fruit, or cordials are compounded, except a place or premises that manufactures wine for sacramental purposes exclusively.

History. 2554b-98: amend. Acts 1944, ch. 154, §§ 1, 2, 3; 1970, ch. 94, § 1; 1976, ch. 381, § 6; 1996, ch. 44, § 2, effective July 15, 1996; 1998, ch. 121, § 1, effective July 15, 1998; 1998, ch. 474, § 1, effective July 15, 1998; 2000, ch. 435, § 1, effective July 14, 2000; 2004, ch. 20, § 2, effective July 13, 2004; 2005, ch. 85, § 645, effective June 20, 2005; 2006, ch. 179, § 6, effective January 1, 2007; 2007, ch. 99, § 1, effective June 26, 2007; 2008, ch. 28, § 2, effective July 15, 2008; 2010, ch. 24, § 549, effective July 15, 2010; 2012, ch. 125, § 1, effective July 12, 2012; 2013, ch. 121, § 1, effective June 25, 2013; 2014, ch. 20, § 1, effective July 15, 2014; ch. 22, § 1, effective July 15, 2014; 2016 ch. 80, § 1, effective July 15, 2016; 2017 ch. 62, § 1, effective June 29, 2017; 2017 ch. 59, § 1, effective January 1, 2018; 2020 ch. 80, § 4, effective July 15, 2020; 2020 ch. 102, § 20, effective July 15, 2020; 2021 ch. 13, § 15, effective March 12, 2021; 2021 ch. 136, § 1, effective June 29, 2021.

Legislative Research Commission Notes.

(6/29/2021). This statute was amended by 2021 Ky. Acts chs. 13 and 136, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Constitutionality.

This chapter is constitutional. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (U.S. 1939).

This chapter is not an unconstitutional delegation of legislative power by the legislature. Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 1946 Ky. LEXIS 531 ( Ky. 1946 ).

There is no facial discrimination against out-of-state wineries under KRS 241.010(44) (now 241.010(53)) and KRS 243.155 as the 50,000 gallon limit applies equally to in-state and out-of-state wineries; further, the limit does not violate Granholm v. Heald, 544 U.S. 460, 125 S. Ct. 1885, 161 L. Ed. 2d 796, 2005 U.S. LEXIS 4174 (2005), inasmuch as there is no showing that the provision burdens out-of-state producers or shippers simply to give a competitive advantage to in-state businesses. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

Allowing in-state wineries to ship directly to consumers in certain circumstances while prohibiting out-of-state wineries from doing the same has no differential effect on the shipment of wine into dry territories; the statutory scheme under former KRS 241.010(22) and (45), KRS 243.155(2) and KRS 243.156 (repealed effective January 1, 2007) discriminates based upon where the wine originates, not upon where it ends up; therefore, the in-state eligibility requirements are not narrowly tailored towards achieving temperance in dry territories. Huber Winery v. Wilcher, 488 F. Supp. 2d 592, 2006 U.S. Dist. LEXIS 60237 (W.D. Ky. 2006 ).

2.Construction.

The test of whether a person is a distiller is whether or not the person is engaged in the business. Logan v. Greenbrier Distilling Co., 286 Ky. 319 , 150 S.W.2d 673, 1941 Ky. LEXIS 245 ( Ky. 1941 ).

3.Nature of Act.

This chapter is only a regulatory act conferring power on the authority it creates to promulgate regulations concerning sales by those having the right under permission given. Johnson v. Commonwealth, 299 Ky. 72 , 184 S.W.2d 212, 1944 Ky. LEXIS 1012 ( Ky. 1944 ).

4.Tax on All Spirits.

The legislature intended to impose a tax on all “spirits” including ethyl alcohol regardless of the use for which purchased whether as a beverage or for industrial purposes. H. O. Hurley Co. v. Martin, 267 Ky. 182 , 101 S.W.2d 657, 1936 Ky. LEXIS 762 ( Ky. 1936 ).

5.Double Payment of taxes.

Where Crab Orchard Distilling Co. was wholly owned and run by National Distillers who had already paid all taxes, Crab Orchard was not liable to pay them again. Crab Orchard Distilling Co. v. Commonwealth, 304 Ky. 483 , 201 S.W.2d 203, 1947 Ky. LEXIS 667 ( Ky. 1947 ).

6.Compensation.

This chapter expressly provides for no additional compensation whatever to the county administrator for functioning as such. Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91 , 118 S.W.2d 181, 1938 Ky. LEXIS 235 ( Ky. 1938 ).

7.Jurisdiction.

In an action under the civil rights act, 42 U.S.C.S. § 1983, a federal district court has jurisdiction to enjoin Kentucky officials from discriminating against an applicant but it does not have power to order Kentucky officials to issue a liquor license, and its judgment so ordering is void. Berry v. Allen, 411 F.2d 1142, 1969 U.S. App. LEXIS 11832 (6th Cir. Ky. 1969 ).

8.Liquor Trafficking.

One charged with selling or trafficking in liquor in local option territory must be prosecuted under the local option law, KRS ch. 242 and not under this chapter. Strunk v. Commonwealth, 302 Ky. 284 , 194 S.W.2d 504, 1946 Ky. LEXIS 649 ( Ky. 1946 ).

Where license holder had supervision and absolute control of the entire premises, was licensed to traffic in alcoholic beverages on the premises, and an open stairway leading to downstairs office and public restroom was frequented by public, this part of premises was also a part of licensed premises, although all trafficking in alcoholic beverages went on upstairs in the confined area of dining room. Duke v. Commonwealth, 474 S.W.2d 885, 1971 Ky. LEXIS 128 ( Ky. 1971 ).

9.Prohibition or Local Option.

This chapter prescribes no means whereby the administrators of it may establish prohibition or local option in any prescribed territory. Johnson v. Commonwealth, 299 Ky. 72 , 184 S.W.2d 212, 1944 Ky. LEXIS 1012 ( Ky. 1944 ).

10.Regulations.

This chapter contemplates that, except where there is specific statutory law or direction, its administration shall be by and under regulations which set up standards of action so that there may be uniformity and stability. Shearer v. Dailey, 312 Ky. 226 , 226 S.W.2d 955, 1950 Ky. LEXIS 624 ( Ky. 1950 ).

11.Home Rule Statute.

The broad and detailed scheme regulating the manufacturing, sale and distribution of alcoholic beverages, KRS 241.010 to 244.990 , fits within the exception of the Home Rule statute set out in subsection (2) of KRS 82.082 , thus making that statute inapplicable and unavailable to authorize the city ordinance which limited the number of retail alcoholic beverage licenses to be issued by the city. Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

12.Interstate Sales.

Because a small winery is defined in KRS 241.010(45) (now 241.010(53)) as one which makes its wine from Kentucky fruit, juices or honey, an Indiana winery did not have to apply for a small winery license in Kentucky before challenging the constitutionality of Kentucky’s laws banning the direct sale of out-of-state wine to Kentucky customers; it appeared that the Indiana winery would not meet the definition of “small winery” in § 241.010(45). Huber Winery v. Wilcher, 2006 U.S. Dist. LEXIS 4705 (W.D. Ky. Feb. 6, 2006).

Cited:

Ziffrin, Inc. v. Martin, 24 F. Supp. 924, 1938 U.S. Dist. LEXIS 1806 (D. Ky. 1938 ), aff’d, Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (1939); Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ); Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ); Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); Reeves v. Simons, 289 Ky. 79 3, 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ); Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ); Commonwealth v. Elliott, 305 Ky. 554 , 204 S.W.2d 948, 1947 Ky. LEXIS 859 ( Ky. 1947 ); O’Brien v. Department of Alcoholic Beverage Control, 306 Ky. 238 , 206 S.W.2d 941, 1947 Ky. LEXIS 994 ( Ky. 1947 ); Peters v. Commonwealth, 307 Ky. 511 , 211 S.W.2d 690, 1948 Ky. LEXIS 779 ( Ky. 1948 ); Morehead v. Commonwealth, 308 Ky. 391 , 214 S.W.2d 610, 1948 Ky. LEXIS 950 ( Ky. 1948 ); Beverage Distributors, Inc. v. Shearer, 249 S.W.2d 153, 1952 Ky. LEXIS 806 ( Ky. 1952 ); Turner v. Commonwealth, 562 S.W.2d 85, 1978 Ky. App. LEXIS 464 (Ky. Ct. App. 1978); United States v. Robinson, 707 F.2d 872, 1983 U.S. App. LEXIS 28048 (6th Cir. 1983).

Opinions of Attorney General.

A city of the fourth class may not by ordinance prescribe quotas for package liquor licenses. OAG 66-127 .

A person holding both a distiller’s license and a rectifier’s license can continue to rectify, bottle, warehouse, and sell distilled spirits to wholesalers without holding a distiller’s license after such licensee has ceased the manufacture of whiskey. OAG 71-350 .

A rectifier may refine, purify, or mix different kinds of whiskey and sell such products to wholesalers in retail containers. OAG 71-350 .

The parking lot of a single unit licensed alcoholic beverage business, if under the control of the licensee, is a part of the “premises.” OAG 75-86 .

The parking lot of a multi-unit shopping center in which a retail establishment licensed to sell alcoholic beverages is located is not a part of the “premises” of the liquor establishment. OAG 75-86 .

An employee of a beer distributor who is the joint survivorship owner with his wife of real property where she, as licensee, operates a saloon and package liquor store, but who is not an employee of his wife as licensee, is not prohibited by Regulation 804 KAR 5:020 from going on the premises to paint, make repairs or for some other legal purpose. OAG 75-623 .

Nowhere in the applicable statutes is any reference made to splitting precincts between dry and wet areas, therefore the local option election results will apply to the precinct as a whole. OAG 78-586 .

The definitions contained in this section are incorporated by reference by KRS 244.010 for the purposes of KRS Chapter 244. OAG 91-51 .

The land in the federal enclave known as Mammoth Cave National Park is not subject to state jurisdiction and regulation regarding the consumption and sale of alcoholic beverages, and is outside of the enforcement of KRS Chapters 241-244. OAG 2008-03 .

241.015. Department of Alcoholic Beverage Control created — What to consist of — Appointment, qualifications, powers, and compensation of commissioner.

There is created a Department of Alcoholic Beverage Control, which shall constitute a statutory administrative department of the state government within the meaning of KRS Chapter 12. The department consists of the commissioner of alcoholic beverage control and the Alcoholic Beverage Control Board. The commissioner shall head the department, shall be its executive officer, and shall have charge of the administration of the department and perform all functions of the department not specifically assigned to the board. The Governor shall appoint as commissioner a person with administrative experience in the field of alcoholic beverage control.

HISTORY: Enact. Acts 1944, ch. 154, § 4; 1966, ch. 255, § 210; 2010, ch. 24, § 550, effective July 15, 2010; 2017 ch. 62, § 2, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 1946 Ky. LEXIS 531 ( Ky. 1946 ); Costa v. Bluegrass Turf Service, Inc., 406 F. Supp. 1003, 1975 U.S. Dist. LEXIS 15126 (E.D. Ky. 1975 ); Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

Opinions of Attorney General.

The department and the alcoholic beverage control board are creatures of statute and are authorized to administer the law only as written; a power not conferred is as plainly prohibited as a power expressly forbidden. OAG 83-306 .

Research References and Practice Aids

Cross-References.

Bond of commissioner, amount and conditions, KRS 62.160 , 62.180 .

241.020. Department to administer alcoholic beverage laws, except as to collection of taxes — Advisory opinions, rulings, and administrative regulations — Divisions of Distilled Spirits and Malt Beverages.

  1. The department shall administer statutes relating to, and regulate traffic in, alcoholic beverages, except that the collection of taxes shall be administered by the Department of Revenue. The department may issue advisory opinions and declaratory rulings related to KRS Chapters 241 to 244 and the administrative regulations promulgated under those chapters.
  2. A Division of Distilled Spirits, under the supervision of the board, shall administer the laws in relation to traffic in distilled spirits and wine.
  3. A Division of Malt Beverages, under the supervision of the board, shall administer the laws in relation to traffic in malt beverages.

HISTORY: 2554b-99, 2554b-100: amend. Acts 1944, ch. 154, § 5; 1946, ch. 231; 2005, ch. 85, § 646, effective June 20, 2005; 2010, ch. 24, § 551, effective July 15, 2010; 2017 ch. 62, § 3, effective June 29, 2017.

NOTES TO DECISIONS

1.State Power Supreme.

The power of the state, with respect to the regulation of a traffic in alcoholic beverages, is supreme, and the fact that the state has not acted does not eliminate that power; therefore, any local regulation of the alcoholic beverage industry must be specifically authorized by either the General Assembly or the Alcoholic Beverage Control Board. Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

Research References and Practice Aids

Cross-References.

Administrative regulations, adoption of effective date, KRS 13A.330 .

241.030. Alcoholic Beverage Control Board.

The Alcoholic Beverage Control Board shall consist of the commissioner of alcoholic beverage control and two (2) persons appointed by the secretary of the Public Protection Cabinet with the approval of the Governor, who shall be persons with administrative experience in the field of alcoholic beverage control. One (1) of these persons shall serve as administrator of the Division of Distilled Spirits, and the other shall serve as administrator of the Division of Malt Beverages. The commissioner shall be chairman of the board.

HISTORY: 2554b-103: amend. Acts 1944, ch. 154, § 6; 1966, ch. 255, § 211; 2010, ch. 24, § 552, effective July 15, 2010; 2017 ch. 62, § 4, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Martin v. Board of Council, 275 Ky. 142 , 120 S.W.2d 761, 1938 Ky. LEXIS 368 ( Ky. 1938 ); Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 1946 Ky. LEXIS 531 ( Ky. 1946 ); K. Whiskey Store, Inc. v. Shearer, 276 S.W.2d 457, 1955 Ky. LEXIS 424 ( Ky. 1955 ).

Research References and Practice Aids

Cross-References.

Bonds of members of board, amount and conditions, KRS 62.160 , 62.180 .

241.040. Oath of board members.

Each member of the board, before entering upon his duties, shall take the oath prescribed by Section 228 of the Constitution.

History. 2554b-107: amend. Acts 1946, ch. 27, § 27.

Research References and Practice Aids

Cross-References.

Oaths and bonds, KRS ch. 62.

241.050. Salaries of board members. [Repealed.]

Compiler’s Notes.

This section (2554b-108) was repealed by Acts 1944, ch. 154, § 7.

241.060. Functions, powers, and duties of board.

The board shall have the following functions, powers, and duties:

  1. To promulgate reasonable administrative regulations governing procedures relative to the applications for and revocations of licenses, the supervision and control of the use, manufacture, sale, transportation, storage, advertising, and trafficking of alcoholic beverages, and all other matters over which the board has jurisdiction. The only administrative regulation that shall be promulgated in relation to the direct shipper license is to establish the license application, as set forth in KRS 243.027(4). To the extent any administrative regulation previously promulgated is contrary to the provisions of KRS 13A.120(2), the board shall repeal or amend the administrative regulation as necessary by January 1, 2022. Administrative regulations need not be uniform in their application but may vary in accordance with reasonable classifications;
  2. To limit in its sound discretion the number of licenses of each kind or class to be issued in this state or any political subdivision, and restrict the locations of licensed premises. To this end, the board may make reasonable division and subdivision of the state or any political subdivision into districts. Administrative regulations relating to the approval, denial, and revocation of licenses may be different within the several divisions or subdivisions;
  3. To hold hearings in accordance with the provisions of KRS Chapter 13B. The department may pay witnesses the per diem and mileage provided in KRS 421.015 ;
  4. To conduct hearings and appeals under KRS 241.150 , 241.200 , 241.260 , 243.470 , and 243.520 and render final orders upon the subjects of the hearings and appeals;
  5. To order the destruction of evidence in the department’s possession after all administrative and judicial proceedings are conducted;
  6. To suspend, revoke, or cancel for cause, after a hearing in accordance with KRS Chapter 13B, any license; and
  7. To prohibit the issuance of a license for the premises until the expiration of two (2) years from the time the offense was committed if a violation of KRS Chapters 241 to 244 has taken place on the premises which the owner knew of or should have known of, or was committed or permitted in or on the premises owned by the licensee.

History. 2555b-103, 2554e-10: amend. Acts 1954, ch. 110, § 1, 1966, ch. 255, § 212; 1978, ch. 194, § 7, effective June 17, 1978; 1980, ch. 188, § 225, effective July 15, 1980; 1996, ch. 318, § 159, effective July 15, 1996; 1998, ch. 121, § 33, effective July 15, 1998; 1998, ch. 522, § 2, effective July 15, 1998; 2010, ch. 24, § 553, effective July 15, 2010; 2017 ch. 62, § 5, effective June 29, 2017; 2021 ch. 13, § 3, effective March 12, 2021.

NOTES TO DECISIONS

1.Constitutionality.

The exercise of such discretionary power as finding facts and administering the law, by the alcoholic beverage control board, is a quasi-judicial act, but not exercise of judicial power within the meaning of Const., §§ 27, 28 and 109. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

This section, in authorizing the board to limit the number of licenses to be issued, and to restrict locations, does not delegate legislative authority in violation of the Constitution. Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 1946 Ky. LEXIS 531 ( Ky. 1946 ).

Subsection (6) of this section which gives the alcoholic beverage control board power to padlock a place of business upon the finding of a single violation of chapter 241 or chapter 244 of the Kentucky Revised Statutes is invalid. Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189, 1954 Ky. LEXIS 951 ( Ky. 1954 ) (decision prior to 1966 amendment).

Where the statute not only gives the alcoholic beverage control board authority to stop the sale of whiskey on the premises, but also confers upon it authority to prevent the premises from being used for any purpose, it amounts, in effect, to the taking of private property, which cannot be done even by the state without due process of law. Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189, 1954 Ky. LEXIS 951 ( Ky. 1954 ) (decision prior to 1966 amendment).

While subsection (6) of this section which gives the alcoholic beverage control board power to padlock a place of business upon a finding of violation of certain statutes is not lacking in procedural due process, the failure of the statute to make the padlocking order contingent upon a finding by the board of the existence of a nuisance renders it unconstitutional. Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189, 1954 Ky. LEXIS 951 ( Ky. 1954 ) (decision prior to 1966 amendment).

2.Police Power.

Legislature, under police power, could provide that board had right to adopt reasonable regulations regarding issuance of permits or licenses to prevent unlawful traffic in intoxicating liquor. Commonwealth v. Williams, 287 Ky. 489 , 153 S.W.2d 985, 1941 Ky. LEXIS 569 ( Ky. 1941 ).

The legislature has the power to limit the number of places at which alcoholic beverages may be purchased by the drink or by the package. Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 1946 Ky. LEXIS 531 ( Ky. 1946 ).

The power of the state, with respect to the regulation of a traffic in alcoholic beverages, is supreme, and the fact that the state has not acted does not eliminate that power; therefore, any local regulation of the alcoholic beverage industry must be specifically authorized by either the General Assembly or the Alcoholic Beverage Control Board. Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

3.Licenses.

Where parties to a local option election contest stipulated to take no further proceedings until a certain date, both parties believing that liquor could not be sold after that date, the stipulation would not be set aside for mutual mistake because of a subsequent ruling by the Alcoholic Beverage Control Board, allowing liquor licenses to be issued after the stipulated date. Jett v. Holland, 276 Ky. 718 , 124 S.W.2d 1055, 1939 Ky. LEXIS 572 ( Ky. 1939 ).

A license application is not “on file with the board” merely because an application had been filed with the city administrator. Shearer v. Spadie, 260 S.W.2d 648, 1953 Ky. LEXIS 979 ( Ky. 1953 ).

Where board granted a retail package liquor license to premises 700 feet from the premises of nearest licensee, its action was not arbitrary under the circumstances. Southside Liquor, Inc. v. Moberly, 396 S.W.2d 45, 1965 Ky. LEXIS 89 ( Ky. 1965 ).

4.— Quotas.

Under the alcoholic beverage control act the licensees have a privilege granted to them, but in no sense is a right given them to attack the broad power of the board to fix quotas. Lexington Retail Beverage Dealers Asso. v. Department of Alcoholic Beverage Control Board, 303 S.W.2d 268, 1957 Ky. LEXIS 239 ( Ky. 1957 ).

Where intoxicating liquor licenses are authorized, even though the regulating public body has a broad discretion in fixing the number, a restriction which constitutes an absolute or practical prohibition is unauthorized and arbitrary. Alcoholic Beverage Control Board v. Helm Hotel Cocktail Lounge, Inc., 357 S.W.2d 891, 1962 Ky. LEXIS 164 ( Ky. 1962 ).

The authority of the board to fix quotas under this section in its sound discretion, even though no conditions or considerations to be taken into account have been prescribed, has been upheld. Alcoholic Beverage Control Board v. Woosley, 367 S.W.2d 127, 1963 Ky. LEXIS 12 ( Ky. 1963 ).

5.— — Appeal.

This section provides no appeal from an order of the board fixing a quota under this section. Lexington Retail Beverage Dealers Asso. v. Department of Alcoholic Beverage Control Board, 303 S.W.2d 268, 1957 Ky. LEXIS 239 ( Ky. 1957 ).

6.— Denial.

Where the court was unable to find any regulations or actions on the part of the board whereby it had made any effort to implement the authority granted by this section, the action of the board in refusing to grant the licenses was not a valid exercise of authority. Dolan v. Shoppers Village Liquors, Inc., 492 S.W.2d 201, 1973 Ky. LEXIS 510 ( Ky. 1973 ).

7.— Revocation.

A proceeding to revoke a beer license is a civil one before an independent tribunal. Even though the charge is the violation of a penal law the evidence need not establish guilt beyond a reasonable doubt, and a criminal prosecution is not a bar to such proceeding. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

8.Regulations.

The alcoholic beverage control board must be governed by its own regulations. Although it has broad discretion in the administration of alcoholic beverage control, and has authority to adopt reasonable regulations, the rules it promulgated must conform to some standard and must have some stability of operation. Krenitz v. Baron, 252 S.W.2d 58, 1952 Ky. LEXIS 987 ( Ky. 1952 ).

The alcoholic beverage control board may regulate generally under the provisions of this section where the regulation is in the limits set by statute, but the regulations adopted must not exceed the specific powers delegated to the board by the legislature. Oertel Brewing Co. v. Portwood, 320 S.W.2d 317, 1959 Ky. LEXIS 234 ( Ky. 1959 ).

Although the legislature by this section vested the alcoholic beverage control board with certain regulatory and administrative powers board does not have authority to adopt regulations extending beyond the scope of statutes which it attempts to administer. Roppel v. Shearer, 321 S.W.2d 36, 1959 Ky. LEXIS 254 ( Ky. 1959 ).

The regulatory power conferred by this section upon the board does not give the board the right to place rules in force that exceed the limitations of the particular statute it undertakes to administer. Alcoholic Beverage Control Board v. Hunter, 331 S.W.2d 280, 1960 Ky. LEXIS 119 ( Ky. 1960 ).

Where voters in county local option election voted to legalize sale of alcoholic beverages and the county was allotted a quota of retail package liquor licenses and the number of applicants substantially outnumbered the quota, letter sent to all applicants that explained the criteria that would be used to determine successful applicants, not only permitted the administrator to exercise discretion in his selection but also put the applicants on notice as to what factors the administrator would consider before making a decision; a regulation adopted pursuant to KRS Chapter 13 (now repealed) could do no more and moreover, it would be difficult for the board to promulgate regulations adopting definite criteria to be applied in every case because criteria may differ according to locale. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

9.— Retroactivity.

Where an applicant has on file with the city administrator an application for a license for package liquor, the alcoholic beverage control board could lawfully promulgate a quota regulation applicable to him without violating the rule against retroactivity of regulations. Shearer v. Spadie, 260 S.W.2d 648, 1953 Ky. LEXIS 979 ( Ky. 1953 ).

10.— Unauthorized.

Regulation of alcoholic beverage control board authorizing issuance of liquor license for premises within 200 feet of school, hospital or church, if entrances were not on same street, and defining “church or other place of worship” as building owned by religious organization exclusively using building and having governing body, was void because at variance with KRS 243.220 . Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ).

Although KRS 243.130 specifically prohibited promotional activities for the sale of alcoholic beverages on the part of distillers, rectifiers, and vintners and KRS 244.050 prohibited similar activities by any retail licensee but there was no statute prohibiting such activities on the part of brewers and beer distributors, alcoholic beverage control board was not authorized to adopt a regulation prohibiting the promotion of alcoholic beverage brands by brewers and distributors in retail stores for enactment of specific statutory legislation in the field as to distillers, rectifiers, vintners and retail licensees dispels any notion that the legislature impliedly delegated to the board power to legislate similarly as to brewers and beer distributors. Oertel Brewing Co. v. Portwood, 320 S.W.2d 317, 1959 Ky. LEXIS 234 ( Ky. 1959 ).

Since the legislature did not by statute prohibit retailers of malt beverages from selling for credit, taking orders by telephone or from making deliveries the alcoholic beverage control board cannot do so by regulation. Roppel v. Shearer, 321 S.W.2d 36, 1959 Ky. LEXIS 254 ( Ky. 1959 ).

The legislature in KRS 243.040 dealt directly with the problem of incompatibility of licenses, which established a legislative intent not to prohibit cross-licensing in the areas not expressly prescribed; therefore, the Kentucky Alcoholic Beverage Control Board exceeded its authority by issuing a regulation prohibiting interlocking interests between malt beverage wholesalers, distributors and manufacturers. Kentucky Alcoholic Beverage Control Board v. Anheuser-Busch, Inc., 574 S.W.2d 344, 1978 Ky. App. LEXIS 624 (Ky. Ct. App. 1978).

Cited:

Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91 , 118 S.W.2d 181, 1938 Ky. LEXIS 235 ( Ky. 1938 ); Martin v. Board of Council, 275 Ky. 142 , 120 S.W.2d 761, 1938 Ky. LEXIS 368 ( Ky. 1938 ); Kenton Distributing Co. v. Alcoholic Beverage Control Board, 297 Ky. 666 , 181 S.W.2d 64, 1944 Ky. LEXIS 797 ( Ky. 1944 ); In re Horen, 298 Ky. 841 , 184 S.W.2d 74, 1944 Ky. LEXIS 989 ( Ky. 1944 ); O’Brien v. Department of Alcoholic Beverage Control, 306 Ky. 238 , 206 S.W.2d 941, 1947 Ky. LEXIS 994 ( Ky. 1947 ); Shearer v. Dailey, 312 Ky. 226 , 226 S.W.2d 955, 1950 Ky. LEXIS 624 ( Ky. 1950 ); Turner v. Portwood, 335 S.W.2d 578, 1960 Ky. LEXIS 276 ( Ky. 1960 ).

Opinions of Attorney General.

Where a resolution limiting by regulation the number of licenses of each kind or class for the county was not approved by the state alcoholic beverage control board, an attempted limitation on the local alcoholic beverage licenses by the county fiscal court was without authority and was invalid. OAG 64-905 .

The fiscal court could cite a dealer in alcoholic beverages who has failed to pay the county license fees before the alcoholic beverage control board. OAG 69-339 .

While ordinarily, population is an important factor in Alcoholic Beverage Control Board determined license quotas, as evidenced by KRS 241.065 relating to counties containing first-class cities, obviously, the election will have no impact on the population of the precinct and therefore, the election, by itself, will not automatically change the number of available licenses. OAG 78-586 .

Regulation 804 KAR 4:010, defining “change” within KRS 243.390(2) as a change of directors, officers or a change in stock ownership whereby one person acquires 10 percent of the stock, is a reasonable regulation. OAG 79-197 .

An urban-county ordinance requiring a $.05 refund on all beverage containers would not be preempted by statutes or regulations of the department of alcoholic beverage control since there is nothing in the language of this section to indicate that restrictions of some sort cannot be applied to beverage containers, especially where the regulation has nothing to do with the alcoholic nature of the beverage and since the alcoholic beverage control board has jurisdiction over only a segment of the types of beverages, i.e., alcoholic beverages, included in such a proposed bottle bill. OAG 80-502 .

Research References and Practice Aids

Cross-References.

Administrative regulations, adoption of effective date, KRS 13A.330 .

Regulations as to transportation of distilled spirits and wine, KRS 243.120 .

Subpoena, punishment for disobedience of, KRS 421.140 to 421.180 .

Kentucky Bench & Bar.

Durant, Procedural Due Process Past Due, Vol. 61, No. 1, Winter 1997, Ky. Bench & Bar 6.

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

241.065. Limitation on number of quota retail package licenses in counties containing cities of first class.

  1. The number of quota retail package licenses issued by the Alcoholic Beverage Control Board to licensees in counties containing cities of the first class, and including such cities, shall not exceed a number equal to one (1) for every one thousand five hundred (1,500) persons resident in such county.
  2. In order that a fixed and approved standard of population as prescribed in subsection (1) of this section may be adopted, the annual estimates of population as determined by the Kentucky State Data Center at the University of Louisville shall be used in every year except a census year, and during a census year the United States government census figures of population shall be controlling.

HISTORY: Enact. Acts 1954, ch. 61, §§ 1 to 3, effective June 17, 1954; 2013, ch. 121, § 2, effective June 25, 2013; 2018 ch. 154, § 1, effective April 14, 2018.

241.066. Limitation on number of quota retail package licenses in wet county not containing a city of the first class — Exceptions — Construction of section — Reduction of quota licenses — Superseding and replacing wet city quota in dry county that becomes wet.

  1. The number of quota retail package licenses issued by the department in any wet county shall not exceed one (1) license for every two thousand three hundred (2,300) persons resident in the county, except that:
    1. A wet county containing a city of the first class shall be subject to the limitations in KRS 241.065 ;
    2. No fewer than two (2) quota retail package licenses shall be available for issuance by the department in any wet county; and
    3. Any specific county quota amounts that were issued by the department prior to January 1, 2018, in excess of the population calculations established in this section shall remain in effect, and the department shall maintain the list of specific quotas in an administrative regulation.
  2. Nothing in this section shall be construed to prohibit license renewal or license transfers approved by the department of an existing quota retail license issued in a wet county.
  3. In counties that have not received an increased quota license amount from the department, any quota licenses over the established amount shall be reduced as the licenses are revoked, surrendered, or not renewed by the license holder.
  4. If a dry county that contains a wet city becomes wet, the quota established by this section shall supersede and replace any separate city quota.

HISTORY: 2018 ch. 154, § 2, effective April 14, 2018.

241.067. Limitation on number of quota retail package licenses in city that becomes wet separate from its county in local option election — Exceptions — Construction of section — Reduction of quota licenses — Superseding and replacing wet city quota in dry county that becomes wet.

  1. The number of quota retail package licenses issued by the department in any city that becomes wet separate from its county by virtue of a local option election pursuant to KRS 242.125 shall not exceed one (1) license for every two thousand three hundred (2,300) persons resident in the city, except that:
    1. No fewer than two (2) quota retail package licenses shall be available for issuance by the department in any wet city; and
    2. Any specific city quota amounts that were issued by the department prior to January 1, 2018, in excess of the population calculations established in this section shall remain in effect, and the department shall maintain the list of specific quotas in an administrative regulation.
  2. Nothing in this section shall be construed to prohibit license renewal or license transfers approved by the department of an existing quota retail license issued in a wet city.
  3. In cities that have not received an increased quota license amount from the department, any quota licenses over the established amount shall be reduced as the licenses are revoked, surrendered, or not renewed by the license holder.
  4. If a dry county in which a wet city is located becomes wet, the quota established for that entire county by KRS 241.066 shall supersede and replace any separate city quota under this section.

HISTORY: 2018 ch. 154, § 3, effective April 14, 2018.

241.068. Population data to be used in administering KRS 241.066 and 241.067.

For the purposes of administering KRS 241.066 and 241.067 :

  1. The population data shall be based on a wet county’s or city’s annual population estimates prepared by the Kentucky State Data Center at the University of Louisville in every year except a federal decennial census year. The federal decennial census figures of population shall be used in a census year; and
    1. On or before January 1 of each year, the department shall obtain the population figures of all wet counties and cities as of that date for determination of the number of quota licenses available. (2) (a) On or before January 1 of each year, the department shall obtain the population figures of all wet counties and cities as of that date for determination of the number of quota licenses available.
    2. If a quota retail license vacancy is created by an increase in population or any other reason, the department shall publish notice of the vacancy and information on how to apply for the license within sixty (60) days in the newspaper used for the legal notices of that county or city.
    3. The department shall accept applications for a quota retail license vacancy not later than thirty (30) days following the date on which the public notice is published.

HISTORY: 2018 ch. 154, § 4, effective April 14, 2018.

241.069. Petition by city for increase in number of quota licenses — Factors to be considered by board — Effect of decision by board to grant or deny quota increase.

  1. A city may petition the board for an increase in the number of quota licenses available in its jurisdiction pursuant to KRS 242.021 . A request for an increase shall not exceed the ratio of one (1) per every one thousand five hundred (1,500) residents.
  2. The board shall consider the following factors when deciding whether to grant the increase:
    1. Population served by the city;
    2. Total retail sales of the city for the most recent past fiscal year;
    3. Retail sales per capita for the most recent past fiscal year;
    4. Total alcohol sales in the city for the most recent past fiscal year;
    5. Tourist destinations in the area, if applicable; and
    6. Other economic and commercial data offered to show the capacity to support additional licenses.
  3. The board shall grant the request if the information supplied supports the requested increase, and shall begin the process of filing an amendment to its administrative regulation to register the increase. Additional licenses shall not be issued until the administrative regulation process is complete and the amendment is adopted.
  4. If the board determines the information supplied does not support a quota increase, it shall notify the city of its decision by registered mail at the address given in the request. The city shall have thirty (30) days from the date of the mailing to file a written request for a hearing before the board regarding its request for an increase.

HISTORY: 2018 ch. 154, § 5, effective April 14, 2018.

241.070. State administrators. [Repealed.]

Compiler’s Notes.

This section (2554b-101) was repealed by Acts 1944, ch. 154, § 7.

241.075. Location of quota retail package licenses and quota retail drink licenses in cities of the first class or consolidated local governments. [Repealed]

History. Enact. Acts 1954, ch. 62, §§ 1 to 4, effective June 17, 1954; 2002, ch. 346, § 214, effective July 15, 2002; 2013, ch. 121, § 3, effective June 25, 2013; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 62, §§ 1 to 4, effective June 17, 1954; 2002, ch. 346, § 214, effective July 15, 2002; 2013, ch. 121, § 3, effective June 25, 2013) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

241.080. Powers of distilled spirits administrator and malt beverages administrator as to issuance of licenses.

The distilled spirits administrator may approve and issue or deny any state license authorizing traffic in distilled spirits and wine. The malt beverages administrator may approve and issue or deny any state license authorizing traffic in malt beverages. Both the distilled spirits administrator and the malt beverages administrator may approve and issue or deny state licenses authorizing the traffic in alcoholic beverages.

HISTORY: 2554b-102; 2017 ch. 62, § 6, effective June 29, 2017.

Compiler’s Notes.

This section formerly contained two subsections. However, subsection (1) was repealed by Acts 1944, ch. 154, § 8.

Opinions of Attorney General.

The law prohibits an arbitrary selection or rejection of applicants for licenses and requires the exercise of sound discretion in such action and, since a lottery system is an arbitrary method of rejecting or selecting an application and involves no discretion, this method is not permitted under the law. OAG 83-306 .

Research References and Practice Aids

Cross-References.

Alcoholic beverages — Licenses and taxes, KRS ch. 243.

241.090. Police powers of administrators and investigators.

State administrators and all investigators shall have the full police powers of peace officers, and their jurisdiction shall be coextensive with the state. They may inspect any premises where alcoholic beverages are manufactured, sold, stored, or otherwise trafficked in, without first obtaining a search warrant. They may confiscate any contraband property. The jurisdiction and police powers of state administrators and all investigators during an emergency declared under KRS Chapter 39A shall be subject to the limitations of KRS 39A.090 .

History. 2554b-105; 2017 ch. 62, § 7, effective June 29, 2017; 2021 ch. 6, § 7, effective February 2, 2021.

NOTES TO DECISIONS

1.Power to Search.

Where agents of alcoholic beverage control board with other law enforcement officers entered apartment downstairs, which was part of licensed premises, without search warrant pursuant to this section, and found illegal gaming devices in the apartment, the search was reasonable as incident to the right of inspection and trial court did not err in refusing to suppress evidence obtained through the search. Duke v. Commonwealth, 474 S.W.2d 885, 1971 Ky. LEXIS 128 ( Ky. 1971 ).

Cited:

Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91 , 118 S.W.2d 181, 1938 Ky. LEXIS 235 ( Ky. 1938 ).

Opinions of Attorney General.

Members of county board of education are state officers and at the same time the position of state ABC officer is one authorized pursuant to this section and such representatives have full police powers which may or may not place their position in the category of a state officer; and although KRS 160.180 prohibits a school board member from holding and discharging the duties of any local office or agency under the city or county of his residence, it would not prohibit a school board member from holding employment or an appointive office with the State and of course a board member could not become a candidate for any public office, local or state; however, Const., § 165 and KRS 61.080 do not prohibit a person from holding two state offices or employment at the same time. OAG 77-245 .

Research References and Practice Aids

Cross-References.

City police and fire departments, KRS ch. 95.

Contraband, what property declared to be, KRS 244.180 .

Sheriffs, constables, county police force and guards, KRS ch. 70.

241.100. Commissioner, distilled spirits and malt beverage administrators, and employees to comply with Executive Branch Code of Ethics — Penalties.

The commissioner, distilled spirits administrator, malt beverage administrator, and all department employees shall comply with the Executive Branch Code of Ethics codified in KRS Chapter 11A. A board member or department employee who violates this section may be disqualified from office or employment.

History. 2554b-106: amend. Acts 1944, ch. 154, § 9; 1976, ch. 206, § 34; 2010, ch. 24, § 554, effective July 15, 2010; repealed and reenacted Acts 2017, ch. 62, § 8, effective June 29, 2017.

Opinions of Attorney General.

Subsection (1) of this section only precludes those relations living with and supported by a board member from having an interest in any premises or business where alcoholic beverages are manufactured, stored or sold. OAG 79-23 .

The Secretary of the Cabinet for Public Protection and Regulation is not a member of the Alcoholic Beverage Control Board or an employee of the Department of Alcoholic Beverage Control; accordingly, he is not prevented by subsection (1) of this section from holding both his position as Secretary and interests in restaurants holding licenses to sell alcoholic beverages. OAG 81-385 .

A city mayor who holds a malt beverage distributor’s license would be precluded by subsection (3) of KRS 241.170 from serving as the city alcoholic beverage control administrator since a distributor’s activities would prohibit him from serving on the ABC board under subsection (1) of this section. OAG 81-390 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, Precomplaint Investigations Under the Kentucky Consumer Protection Act: Validity and Scope of the Civil Investigation Demand, 65 Ky. L.J. 169 (1976-77).

241.110. County judge/executive as county administrator — Appointment of person other than county judge/executive — Investigators and clerks — Powers and jurisdiction — Constitutional oath.

  1. The fiscal court of any county in which traffic in alcoholic beverages is not forbidden under KRS Chapter 242 may by resolution declare that regulation of the traffic in that county is necessary. The county judge/executive shall immediately constitute a county alcoholic beverage control administrator for the county. However, the county judge/executive may decline to accept this office, or after accepting the office, the county judge/executive may resign from the office, and in either event, notwithstanding the provisions of KRS 241.120 to and including KRS 241.150 , the county judge/executive may promptly appoint a person at least thirty (30) years of age, who at the time of the appointment has been a citizen of the state and a resident of that county for at least two (2) years next preceding the date of appointment, and who is able to qualify to serve at the pleasure of the county judge/executive as county alcoholic beverage control administrator for that county. Before entering upon the duties of county alcoholic beverage control administrator appointed by the county judge/executive, the appointee shall take the oath prescribed by Section 228 of the Constitution. Upon the qualification and appointment of this person as county alcoholic beverage control administrator for the county, the person shall immediately notify the department.
  2. The compensation of the county alcoholic beverage control administrator, appointed by the county judge/executive, shall be fixed by the fiscal court in accordance with KRS 64.530 . The county judge/executive may also appoint any investigators and clerks deemed necessary for the proper conduct of the county alcoholic beverage control administrator’s office, their salaries likewise shall be fixed by the fiscal court pursuant to KRS 64.530 , and they will serve at the pleasure of the county judge/executive.
  3. No person shall be a county alcoholic beverage control administrator, an investigator, or an employee of the county under the supervision of the county alcoholic beverage control administrator, who would be disqualified to be a member of the board under KRS 241.100 .
  4. The county alcoholic beverage control administrator, appointed by the county judge/executive, and the administrator’s investigators, shall have full police powers of peace officers, and their jurisdiction shall be over the unincorporated areas of the county and within the corporate limits of any city in the county not having its own administrator. They may inspect any premises where alcoholic beverages are manufactured, sold, stored, or otherwise trafficked in, without first obtaining a search warrant.
  5. Before entering upon official duties, each county administrator shall take the oath prescribed in Section 228 of the Constitution.

HISTORY: 2554b-110: amend. Acts 1954, ch. 139; 2017 ch. 62, § 9, effective June 29, 2017.

NOTES TO DECISIONS

1.County Officer.

The county alcoholic beverage administrator is a county officer and not a state officer. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

2.Judge Pro Tem as County Administrator.

Where protestants to the granting of a retail package liquor and beer license did not object to or question the authority or qualification of the judge pro tem to conduct the hearing on the application or to perform the duties of county administrator, they could not question his authority or qualifications for the first time upon appeal to the board or to the court. S. W. Palmer--Ball v. Esquire Liquors, Inc., 490 S.W.2d 472, 1973 Ky. LEXIS 626 ( Ky. 1973 ).

Cited:

Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91 , 118 S.W.2d 181, 1938 Ky. LEXIS 235 ( Ky. 1938 ); Martin v. Board of Council, 275 Ky. 142 , 120 S.W.2d 761, 1938 Ky. LEXIS 368 ( Ky. 1938 ); Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); K. Whiskey Store, Inc. v. Shearer, 276 S.W.2d 457, 1955 Ky. LEXIS 424 ( Ky. 1955 ); Wal Juice Bar, Inc. v. Elliott, 664 F. Supp. 269, 1987 U.S. Dist. LEXIS 6646 (W.D. Ky. 1987 ), rev’d, Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1990 U.S. App. LEXIS 4877 (6th Cir. 1990).

Opinions of Attorney General.

Where a resolution limiting by regulation the number of licenses of each kind or class for the county was not approved by the state alcoholic beverage control board, an attempted limitation on the local alcoholic beverage licenses by the county fiscal court was without authority and was invalid. OAG 64-905 .

The possibility of a conflict in interest is so substantial as to disqualify a liquor retailer from assuming the office of magistrate of the county fiscal court. OAG 65-80 .

If the county judge (now county judge/executive), who is also the county administrator, leaves the county and state for an extended time and the circuit judge does not appoint an interim administrator, the ABC board would be authorized to go ahead and issue a county license. OAG 65-471 .

Where a county judge (now county judge/executive) who has appointed himself county administrator leaves the county and the state for a prolonged period of time during which time licenses must be renewed, he has disqualified himself from acting as administrator until his return and the circuit judge can appoint an interim county administrator. OAG 65-471 .

Investigators may be appointed to serve under the local alcoholic beverage control administrator of the urban county government with the full police powers of peace officers. OAG 75-322 .

Neither the general nor specific powers of the county judge/executive set forth in KRS 67.710 include the authority to regulate traffic in alcoholic beverages; such “additional power” must be granted by the fiscal court by resolution pursuant to subsection (1) of this section. OAG 83-63 .

The county judge/executive has no authority to act as the local alcoholic beverage control administrator if the fiscal court has failed to pass a resolution declaring that regulation of traffic in alcoholic beverages is necessary, since a resolution of this type is a condition precedent to the assumption of authority as alcoholic beverage control administrator by the county judge/executive. OAG 83-63 .

241.120. Disqualification of county judge/executive — How vacancy filled — Appointee.

  1. The county judge/executive shall be disqualified to act as county administrator by any fact that would disqualify a person under KRS 241.100 from acting as a member of the board.
  2. If he is disqualified to act as county administrator, or if a vacancy in that office occurs for any other reason, the judge of the Circuit Court of that county shall appoint to that position a person at least thirty (30) years of age who, at the time of appointment, has been a citizen of the state and a resident of that county for at least two (2) years next preceding the date of appointment, and who is able to qualify.
  3. The appointee shall serve during the unexpired portion of the term or until the county judge/executive is able and willing to qualify.

History. 2554b-110: amend. Acts 1944, ch. 154, § 10.

NOTES TO DECISIONS

Cited:

Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91 , 118 S.W.2d 181, 1938 Ky. LEXIS 235 ( Ky. 1938 ); Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ).

241.130. Salary, oath and bond of county administrator. [Repealed]

History. 2554b-110; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified Acts 1942, ch. 208, § 1, effective October 1, 1942, from § 2554b-110) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

241.140. Functions of county administrator — Jurisdiction.

Each county administrator shall have the same duties and functions regarding local license applications and renewals as the department with respect to state licenses. Each county administrator shall have the same duties and functions regarding local license penalization as the board with respect to state license penalization. If any city appoints its own administrator under KRS 241.160 , the county administrator in that county shall have jurisdiction over only that portion of the county which lies outside the corporate limits of that city, unless the city does not have an adequate police force.

HISTORY: 2554b-110: amend. Acts 1998, ch. 522, § 27, effective July 15, 1998; 2010, ch. 24, § 555, effective July 15, 2010; 2017 ch. 18, § 2, effective June 29, 2017; 2017 ch. 62, § 10, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 18 and 62, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.County Officer.

The county alcoholic beverage administrator is a county officer and not a state officer. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

Cited:

Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 274 Ky. 91 , 118 S.W.2d 181, 1938 Ky. LEXIS 235 ( Ky. 1938 ); Martin v. Board of Council, 275 Ky. 142 , 120 S.W.2d 761, 1938 Ky. LEXIS 368 ( Ky. 1938 ); Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); Bickett v. Palmer-Ball, 470 S.W.2d 341, 1971 Ky. LEXIS 276 ( Ky. 1971 ).

Research References and Practice Aids

Cross-References.

Alcoholic beverages — Licenses and taxes, KRS ch. 243.

Alcoholic beverages — Prohibitions, restrictions and regulations, KRS ch. 244.

241.150. Appeals from decision or order of county administrator to board.

Appeals from a decision or order of a county administrator may be taken to the board by filing a notice of appeal with the board within thirty (30) days after the decision or order of the county administrator is mailed or delivered by personal service. The notice of appeal shall specify the county administrator by name and shall identify the decision or order, or part of the decision or order, being appealed. The notice shall contain a certificate that a copy of the notice has been served on the county administrator and shall be accompanied by a copy of the decision or order being appealed. Matters at issue shall be heard by the board as upon an original proceeding. Appeals from decisions or orders of the county administrator shall be governed by KRS Chapter 13B.

HISTORY: 2554b-110: amend. Acts 1998, ch. 121, § 2, effective July 15, 1998; 2017 ch. 62, § 11, effective June 29, 2017.

NOTES TO DECISIONS

1.Sole Remedy.

Where application for city and county license had been refused by city council and county alcoholic beverage administrator, applicant, who did not appeal to state board, could not maintain an action in local circuit court to compel issuance of licenses, and to restrain prosecution against him, since appeal to state board and thence to Franklin Circuit Court is sole remedy. Martin v. Board of Council, 275 Ky. 142 , 120 S.W.2d 761, 1938 Ky. LEXIS 368 ( Ky. 1938 ).

Cited:

Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ).

241.160. Wet or moist cities with population of 3,000 or more and consolidated local governments required to have city administrators — City administrators permitted in smaller cities.

  1. The legislative body of any wet or moist city with a population equal to or greater than three thousand (3,000) or a consolidated local government shall by ordinance create the office of city alcoholic beverage control administrator, or shall assign the duties of this office to a presently established city office.
  2. Except as provided in subsection (3) of this section, the legislative body of any wet or moist city with a population of less than three thousand (3,000) may, by ordinance, create the office of city alcoholic beverage control administrator or shall assign the duties of the office to a presently established office.
  3. If located in a county containing a consolidated local government, cities with a population of less than three thousand (3,000) shall not create the office of city alcoholic beverage control administrator. Any city under this subsection that had created the office of city alcoholic beverage control and appointed a person to that office prior to August 1, 2014, shall not be prohibited by this subsection.

HISTORY: 2554b-111: amend. Acts 1948, ch. 108, § 1; 2017 ch. 62, § 12, effective June 29, 2017.

NOTES TO DECISIONS

1.Constitutionality.

So much of the law providing that “the city administrator of each city of the first class should have been appointed by the commissioner of revenue, with the approval of the governor” was unconstitutional as not based on a reasonable classification. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

2.State Power Supreme.

The power of the state, with respect to the regulation of a traffic in alcoholic beverages, is supreme, and the fact that the state has not acted, does not eliminate that power; therefore, any local regulation of the alcoholic beverage industry must be specifically authorized by either the General Assembly or the Alcoholic Beverage Control Board. Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

Cited:

Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ); Newport v. Tye, 335 S.W.2d 340, 1960 Ky. LEXIS 257 ( Ky. 1960 ); Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 1976 Ky. LEXIS 46 ( Ky. 1976 ); Wal Juice Bar, Inc. v. Elliott, 664 F. Supp. 269, 1987 U.S. Dist. LEXIS 6646 (W.D. Ky. 1987 ), rev’d, Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1990 U.S. App. LEXIS 4877 (6th Cir. 1990).

Opinions of Attorney General.

A county cannot collect license fees from package store owners in a city of the first four classes for the authority for issuing such licenses rests exclusively with the city authorities to the absolute exclusion of the county authorities. OAG 61-31 .

Although there is no statutory prohibition against appointing as city alcoholic beverage administrator an insurance agent representing a company presently doing business with the city and who may do business with the city in the future, there would be a common-law conflict of interest. OAG 74-33 .

A councilman in a fourth-class city may be assigned the duties of alcoholic beverage control administrator for the city and receive compensation from both positions but he should not vote on either the question of his selection as alcoholic beverage control administrator or on the compensation fixed for the performance of the additional duties assigned to him, as this might create a common-law conflict of interest. OAG 74-68 .

A member of the city council may serve concurrently as the city alcoholic beverage commissioner if such duties are assigned by the city council to one of the council members, but if the office of alcoholic beverage commissioner is created by ordinance, the office is a municipal office and KRS 61.080 and Ky Const., § 165 prohibit a person from filling two municipal offices at the same time. OAG 74-82 .

Where councilman is assigned duties of alcoholic beverage control administrator under this section, such assignment did not violate KRS 61.080 in that said councilman would not be occupying two city offices at the same time, since the council was assigning the duties of the office and not creating a new office. OAG 74-292 .

A member of a town board of trustees can be legally assigned the duties of the office of alcoholic beverage control administrator under authority of this section as the board member would not be holding another municipal office in violation of Ky. Const. § 165 and KRS 61.080 . OAG 74-576 .

If a city creates a separate office of alcoholic beverage control administrator or assigns the duties of the office to a present city office, such as mayor or city council member, such action must be taken by ordinance. OAG 76-97 .

An ordinance which created the office of city alcoholic control administrator in a fourth class city and vested the powers and duties of the administrator in the mayor was in violation of this section, which provides that such office may either be created or its duties assigned to an existing office, and also violated subsection (3) of KRS 61.080 and Const., § 165 which prohibit any person from filling two municipal offices at the same time; however, the city council could amend or revise the ordinance to state that the duties of the administrator should be assigned to the office of the mayor, thereby avoiding the creation of a separate municipal office. OAG 81-390 .

A fifth-class city has the authority to enact an ordinance imposing license fees on the manufacturing and trafficking of alcoholic beverages; the administration of such licenses is the responsibility of the county alcoholic beverage administrator. OAG 84-117 .

241.170. Appointment of city administrator and employees in cities of first class or consolidated local government — Police powers — Right to inspect premises — Appointment in other cities — Qualifications of city administrators and employees — Jurisdictional enforcement conflicts.

  1. The city administrator in each city of the first class or the administrator in a consolidated local government, and any investigators and clerks deemed necessary for the proper conduct of this office, shall be appointed by the mayor. The city administrator in each city of the first class or the administrator in a county containing a consolidated local government, and the administrator’s investigators, shall have full police powers of peace officers, and their jurisdiction shall be coextensive with boundaries of the city of the first class or the boundaries of the county in a county containing a consolidated local government. They may inspect any premises where alcoholic beverages are manufactured, sold, stored, or otherwise trafficked in, without first obtaining a search warrant.
  2. The city administrator in each city, other than a consolidated local government, shall be appointed by the city manager if there is one. If there is no city manager, the city administrator shall be appointed by the mayor.
  3. No person shall be an administrator, an investigator, or an employee of the city or a consolidated local government under the supervision of the administrator, who would be disqualified to be a member of the board under KRS 241.100 .
  4. Before entering upon official duties, each city administrator shall take the oath prescribed in Section 228 of the Constitution. An appointed city alcoholic beverage control administrator shall immediately notify the department of qualification and appointment.

HISTORY: 2554b-111: amend. Acts 1946, ch. 247; 2017 ch. 18, § 3, effective June 29, 2017; 2017 ch. 62, § 13, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 18 and 62, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.City Officers.

The city alcoholic beverage administrators are city officers and not state officers. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

2.Review of City Administrator's Actions.

Under KRS 241.200 , a liquor store owner was entitled to an administrative hearing on an applicant’s request for liquor license; therefore, the trial court properly remanded the case to the Alcoholic Beverage Control Board for an evidentiary hearing to determine whether the city administrator’s issuance of the license violated KRS 243.450 because the applicant’s premises did not comply with the city’s regulations. Bev. Warehouse, Inc. v. Commonwealth, 382 S.W.3d 34, 2011 Ky. App. LEXIS 211 (Ky. Ct. App. 2011).

Cited:

Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

Opinions of Attorney General.

KRS 89.570 (repealed) does not preempt the specific appointive power granted city managers in each city of the second, third and fourth class to appoint the city alcoholic beverage control administrator as provided by this section. OAG 74-325 .

If a city operates under the city manager-commission form of government, the city manager appoints the city ABC administrator but if the city operates solely under the commission form of government, the office of city manager does not legally exist and the mayor would be the appointing authority for the city ABC administrator. OAG 77-768 .

This section precludes a city administrator or a member of his immediate family from holding an interest in a business dealing in alcoholic beverages. OAG 79-23 .

KRS 83A.150 would impliedly repeal the provision of subsection (2) of this section insofar as it conflicts with this statute and would require that the city manager merely recommend to the board of commissioners for appointment a qualified person to serve as ABC administrator. OAG 80-580 .

A city mayor who holds a malt beverage distributor’s license would be precluded by subsection (3) of this section from serving as the city alcoholic beverage control administrator since a distributor’s activities would prohibit him from serving on the ABC board under subsection (1) of KRS 241.100 . OAG 81-390 .

241.180. Oath and bond of city administrator and employees. [Repealed]

History. 2554b-111; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified Acts 942, ch. 208, § 1, effective October 1, 1942, from § 2554b-111) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

241.190. Functions of city administrator.

Each city administrator shall have the same duties and functions regarding local license applications and renewals as the department with respect to state licenses. Each city administrator shall have the same duties and functions regarding local license penalization as the board with respect to state license penalization.

HISTORY: 2554b-111: amend. Acts 1998, ch. 522, § 3, effective July 15, 1998; 2017 ch. 62, § 14, effective June 29, 2017.

NOTES TO DECISIONS

1.City Administrator’s Regulation.

It is the legislative intent that the board has a superior right to control and is not bound by the regulation of the city administrator. O'Brien v. Department of Alcoholic Beverage Control, 306 Ky. 238 , 206 S.W.2d 941, 1947 Ky. LEXIS 994 ( Ky. 1947 ).

2.Ordinances.

This section requiring the city alcoholic beverage control administrator to submit regulations to the state alcoholic beverage control board for approval does not apply to ordinances adopted by the city legislative body. Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 1976 Ky. LEXIS 46 ( Ky. 1976 ).

City ordinance forbidding nude or nearly-nude activities on ABC Board licensed premises in the city was not in “conflict” with a “comprehensive scheme” of state regulation, and therefore was not void pursuant to the Kentucky “home rule” statute, KRS 82.082 . City of Louisville v. Michael A. Woods, Inc., 883 S.W.2d 881, 1993 Ky. App. LEXIS 69 (Ky. Ct. App. 1993).

3.Approval of Alcoholic Beverage Control Board.

Limitation on issuance of beer licenses that was imposed by city ordinance and not by regulation did not need the approval of the state alcoholic beverage control board. Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 1976 Ky. LEXIS 46 ( Ky. 1976 ).

Cited:

Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ); Richmond v. Collins, 310 Ky. 645 , 221 S.W.2d 625, 1949 Ky. LEXIS 988 ( Ky. 1949 ); Newport v. Tye, 335 S.W.2d 340, 1960 Ky. LEXIS 257 ( Ky. 1960 ).

Opinions of Attorney General.

A municipal ordinance that would require that an application for an alcoholic beverage license be approved by the city council in addition to the approval of the city administrator would be void. OAG 69-512 .

A city council of a city of the fourth class cannot by ordinance limit the number of retail distilled spirits and wine licenses and the number of retail malt beverage licenses. OAG 71-385 .

The state alcoholic beverage control board has the authority to set quotas on the alcoholic beverage licenses issued in each county or city, and the local alcoholic beverage control administrator would have the authority to adopt more stringent quotas for his particular city or county if such quotas are approved by the state board. OAG 71-385 .

Research References and Practice Aids

Cross-References.

Alcoholic beverages — Licenses and taxes, KRS Ch. 243.

241.200. Appeals from decisions or orders of city administrator.

Appeals from a decision or order of each city administrator may be taken to the board by filing a notice of appeal with the board within thirty (30) days after the decision or order of the city administrator is mailed or delivered by personal service. The notice of appeal shall specify the city administrator by name and shall identify the decision or order, or part of the decision or order, being appealed. The notice shall contain a certificate that a copy of the notice has been served on the city administrator and shall be accompanied by a copy of the decision or order being appealed. Matters at issue shall be heard by the board as upon an original proceeding. Appeals from decisions or orders of the city administrator shall be governed by KRS Chapter 13B.

HISTORY: 2554b-111: amend. Acts 1998, ch. 522, § 4, effective July 15, 1998; 2000, ch. 435, § 2, effective July 14, 2000; 2017 ch. 62, § 15, effective June 29, 2017.

NOTES TO DECISIONS

1.Review by Board.

KRS 243.370 , providing that an applicant doing business where a county or city license is required shall be ineligible to apply for a state license unless his application for the county or city license has first been approved, does not prohibit the alcoholic beverage control board from reviewing a case in which an applicant has been denied the county or city license. Reinsperg v. Reed, 313 Ky. 683 , 233 S.W.2d 412, 1950 Ky. LEXIS 964 ( Ky. 1950 ).

Under KRS 241.200 , a liquor store owner was entitled to an administrative hearing on an applicant’s request for liquor license; therefore, the trial court properly remanded the case to the Alcoholic Beverage Control Board for an evidentiary hearing to determine whether the city administrator’s issuance of the license violated KRS 243.450 because the applicant’s premises did not comply with the city’s regulations. Bev. Warehouse, Inc. v. Commonwealth, 382 S.W.3d 34, 2011 Ky. App. LEXIS 211 (Ky. Ct. App. 2011).

Right to appeal to the Kentucky Department of Alcoholic Beverage Control from a city administrator’s approval of a liquor license is expressly provided in the statutory language of KRS 241.200 . Bev. Warehouse, Inc. v. Commonwealth, 382 S.W.3d 34, 2011 Ky. App. LEXIS 211 (Ky. Ct. App. 2011).

2.Appeal to Court.

Where plaintiff’s liquor license had been renewed by the city alcoholic beverage control administrator and was subsequently withdrawn by the city council by a letter from the city clerk-treasurer, court erred in dismissing complaint, since the issue was not merely administrative discretion but a question of law involving withdrawal of the administrator’s approval by deference to the city council. Haggard v. Dayton, 508 S.W.2d 590, 1974 Ky. LEXIS 623 ( Ky. 1974 ).

Cited:

Richmond v. Collins, 310 Ky. 645 , 221 S.W.2d 625, 1949 Ky. LEXIS 988 ( Ky. 1949 ); Krenitz v. Baron, 252 S.W.2d 58, 1952 Ky. LEXIS 987 ( Ky. 1952 ); Shearer v. Spadie, 260 S.W.2d 648, 1953 Ky. LEXIS 979 ( Ky. 1953 ); Moberly v. Thompson, 404 S.W.2d 277, 1966 Ky. LEXIS 288 ( Ky. 1966 ); Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

241.220. Urban-county administrator.

The legislative body of any urban-county government in which traffic in alcoholic beverages is not forbidden by KRS Chapter 242 shall by ordinance create the office of urban-county alcoholic beverage control administrator.

History. Enact. Acts 1978, ch. 194, § 1, effective June 17, 1978.

241.230. Appointment and duties of administrator, investigators, and clerks — Constitutional oath.

  1. The urban-county administrator in each urban-county government and any investigators and clerks deemed necessary for the proper conduct of the office, shall be appointed by the mayor. The urban-county administrator, and the urban-county administrator’s investigators, shall have full police powers of peace officers, and their jurisdiction shall be coextensive with the urban- county governments. They may inspect any premises where alcoholic beverages are manufactured, sold, stored, or otherwise trafficked in, without first obtaining a search warrant.
  2. No person shall be an urban-county administrator, an investigator, or an employee of the urban-county government under the supervision of the urban-county administrator, who would be disqualified to be a member of the board under KRS 241.100 .
  3. Before entering upon official duties, each urban-county administrator shall take the oath prescribed in Section 228 of the Constitution. An appointed urban-county alcoholic beverage control administrator shall immediately notify the department of qualification and appointment.

HISTORY: Enact. Acts 1978, ch. 194, § 2, effective June 17, 1978; 2017 ch. 62, § 16, effective June 29, 2017.

241.240. Bond. [Repealed]

History. Enact. Acts 1978, ch. 194, § 3, effective June 17, 1978; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 194, § 3, effective June 17, 1978) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

241.250. Functions and duties of urban-county administrator.

Each urban-county administrator shall have the same duties and functions regarding local license applications and renewals as the department with respect to state licenses. Each urban-county administrator shall have the same duties and functions regarding local license penalization as the board with respect to state license penalization.

HISTORY: Enact. Acts 1978, ch. 194, § 4, effective June 17, 1978; 1998, ch. 522, § 5, effective July 15, 1998; 2017 ch. 62, § 17, effective June 29, 2017.

241.260. Appeals from urban-county administrator’s decision or order.

Appeals from a decision or order of each urban-county administrator may be taken to the board by filing a notice of appeal with the board within thirty (30) days after the decision or order of the urban-county administrator is mailed or delivered by personal service. The notice of appeal shall specify the urban- county administrator by name and shall identify the decision or order, or part of the decision or order, being appealed. The notice shall contain a certificate that a copy of the notice has been served on the urban-county administrator and shall be accompanied by a copy of the decision or order being appealed. Matters at issue shall be heard by the board as upon an original proceeding. Appeals from decisions or orders of the urban-county administrator shall be governed by KRS Chapter 13B.

HISTORY: Enact. Acts 1978, ch. 194, § 5, effective June 17, 1978; 1998, ch. 522, § 6, effective July 15, 1998; 2000, ch. 435, § 3, effective July 14, 2000; 2017 ch. 62, § 18, effective June 29, 2017.

241.990. Penalties.

Any person who after an opportunity to be heard is found by the commissioner to have violated any of the provisions of KRS 241.100 , or acted as county administrator in violation of subsection (1) of KRS 241.120 , or acted as city administrator or a city employee in violation of subsection (3) of KRS 241.170 , or acted as an urban-county administrator in violation of KRS 241.230 , shall automatically vacate his office or position, and upon conviction by a court, he shall be guilty of a Class D felony.

History. 2554b-106, 2554b-110, 2554b-111: amend. Acts 1978, ch. 194, § 6, effective June 17, 1978; 1992, ch. 463, § 29, effective July 14, 1992; 2010, ch. 24, § 557, effective July 15, 2010.

CHAPTER 242 Alcoholic Beverages — Local Option

Definitions

242.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (2554c-1, 2554c-40) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

242.015. Definitions for chapter.

As used in this chapter, unless the context otherwise requires, the words and terms defined in KRS 241.010 have the meaning given to them in KRS 241.010 .

History. Enact. Acts 2000, ch. 435, § 4, effective July 14, 2000.

Local Option Elections

242.020. Petition for election.

  1. A petition for an election shall be signed by a number of constitutionally qualified voters of the territory to be affected, equal to twenty-five percent (25%) of the votes cast in the territory at the last preceding general election. The petition may consist of one (1) or more separate units, and shall be filed with the county clerk in accordance with this section.
    1. Before a petition for election may be presented for signatures, an intent to circulate the petition, including a copy of the unsigned petition, shall be filed with the county clerk by any person or group of persons seeking the local option election. (2) (a) Before a petition for election may be presented for signatures, an intent to circulate the petition, including a copy of the unsigned petition, shall be filed with the county clerk by any person or group of persons seeking the local option election.
    2. After a petition for a local option election has received no fewer than the number of qualifying signatures required by subsection (1) of this section, the signed petition shall be filed with the county clerk.
    3. If the election is to be held on any day other than a primary or regular election date, a person or group of persons seeking the local option election shall post bond with the Circuit Court to cover all costs of the election within five (5) days after the signed petition is filed under paragraph (b) of this subsection. The cost of the election shall be established by the county judge/executive to determine the bond amount.
  2. The petition for election, in addition to the signature and legibly printed name of each voter, shall state also the voter’s residence address, year of birth, and the correct date upon which the voter’s name was signed.
  3. No signer of the petition may withdraw his or her name or have it taken from the petition after the petition has been filed. If the name of any person has been placed on the petition for election without that person’s authority, the person may appear before the county judge/executive before the election is ordered and upon proof that the person’s name was placed on the petition without his or her authority, the person’s name and personal information required in subsection (3) of this section shall be eliminated by an order of the county judge/executive. When the person’s name and personal information has been eliminated, he or she shall not be counted as a petitioner.
  4. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election on the following question: “Are you in favor of the sale of alcoholic beverages in (name of territory)?’”. No petition for a referendum shall be circulated for more than six (6) months prior to its filing.
  5. After a petition for election has been filed in conformity with this section, the county judge/executive shall make an order on the order book of the court directing that the local option questions may be placed on the ballot for the next primary or regular election to be held in that territory. If the date of the local option election stated in the petition as provided in KRS 242.030(1) is a date other than a primary or regular election day, all election costs for such a local option election shall be borne by the person or group of persons who circulated the petition.
  6. Substantial compliance with the wording designated under this chapter for a particular type of petition is sufficient to validate the actual wording of the petition.

History. 2554c-2, 2554c-3: amend. Acts 1978, ch. 384, § 374, effective June 17, 1978; 1984, ch. 111, § 112, effective July 13, 1984; 1990, ch. 48, § 87, effective July 13, 1990; 1996, ch. 63, § 1, effective July 15, 1996; 2013, ch. 121, § 7, effective June 25, 2013; 2017 ch. 190, § 1, effective April 11, 2017.

NOTES TO DECISIONS

KRS Ch. 242, being substantially a reenactment of the old local option law, would be controlled by construction placed on old law. Long v. Smith, 281 Ky. 512 , 136 S.W.2d 789, 1940 Ky. LEXIS 74 ( Ky. 1940 ).

One charged with selling or trafficking in liquor in local option territory must be prosecuted under this chapter and not under the Alcoholic Beverage Control Act, KRS ch. 241. Strunk v. Commonwealth, 302 Ky. 284 , 194 S.W.2d 504, 1946 Ky. LEXIS 649 ( Ky. 1946 ).

This section is mandatory, but the jurisdiction of the court is not defeated because the judge refuses to observe the mandatory provisions of the statute. Bays v. Bradley Mills, 254 S.W.2d 348, 1953 Ky. LEXIS 585 ( Ky. 1953 ).

Absent some special issue as to the existence of local option, the trial court will take judicial notice of the county’s status in this respect. Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ).

It is apparent that in all its manifestations this section is procedural and merely provides a vehicle to set in motion procedures to call an election where authorized by the substantive portion of KRS Chapter 242, that is, KRS 242.125 . Howard v. Salyer, 695 S.W.2d 420, 1985 Ky. LEXIS 247 ( Ky. 1985 ).

The legislature meant by “territory” or “territory to be affected,” first a county, second a city, third a district, and fourth a precinct. Herron v. McMurray, 303 Ky. 190 , 197 S.W.2d 55, 1946 Ky. LEXIS 803 ( Ky. 1946 ).

A city of the first four classes is a “territory” and is an independent unit for the purpose of voting and determining its status on the prohibition question. However, with respect to the calling of a county-wide election a city is simply a segment of the county. Mastin v. Cornett, 373 S.W.2d 424, 1963 Ky. LEXIS 159 ( Ky. 1963 ).

The form of the issue, as stated in the petition, need not conform literally to the form of the question on the ballot. Hessler v. Garner, 266 Ky. 507 , 99 S.W.2d 461, 1936 Ky. LEXIS 693 ( Ky. 1936 ).

The units of a petition need not be bound together. Wilson v. Lawrence, 268 Ky. 179 , 103 S.W.2d 955, 1937 Ky. LEXIS 427 ( Ky. 1937 ).

Petition need not state that county has not had local option election within three years. Morgan v. Walker, 289 Ky. 92 , 158 S.W.2d 5, 1941 Ky. LEXIS 23 ( Ky. 1941 ).

It is not necessary that each sheet of the petition contain a caption identifying its purpose. Hessler v. Garner, 266 Ky. 507 , 99 S.W.2d 461, 1936 Ky. LEXIS 693 ( Ky. 1936 ).

It is necessary to set forth the purpose of the petition, including a description of the territory in which the election is to be held, and it is sufficient to do this at the beginning of the first page of each unit. Karloftis v. Mills, 312 Ky. 722 , 229 S.W.2d 477, 1950 Ky. LEXIS 746 ( Ky. 1950 ).

An order reciting the filing of the petition with the clerk is not required by the statute. Epperson v. Harper, 271 Ky. 326 , 112 S.W.2d 45, 1937 Ky. LEXIS 243 ( Ky. 1937 ).

Presentation of the petition to the clerk will be treated as a filing thereof. Rodgers v. Campbell, 267 Ky. 261 , 101 S.W.2d 937, 1937 Ky. LEXIS 301 ( Ky. 1937 ).

The petition need not be filed during a regular term, but may be filed with the clerk at any time. Goodwin v. Anderson, 269 Ky. 11 , 106 S.W.2d 152, 1937 Ky. LEXIS 566 ( Ky. 1937 ), overruled, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ); Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ); Winstead v. Clarke, 269 Ky. 594 , 108 S.W.2d 518, 1937 Ky. LEXIS 644 (Ky. 1937).

An order calling an election which recites that the petition had been “lodged and received by the court” is not evidence that the petition was not duly filed with the clerk. Epperson v. Harper, 271 Ky. 326 , 112 S.W.2d 45, 1937 Ky. LEXIS 243 ( Ky. 1937 ).

It will be presumed that the petition was filed with the clerk as directed, and anyone attacking that presumption has the burden of proof. Epperson v. Harper, 271 Ky. 326 , 112 S.W.2d 45, 1937 Ky. LEXIS 243 ( Ky. 1937 ).

Delivery of petition for local option election to county judge, who directed county clerk to file it, was in compliance with this section. It is not mandatory that petitioners actually place petition in hands of clerk. Morgan v. Walker, 289 Ky. 92 , 158 S.W.2d 5, 1941 Ky. LEXIS 23 ( Ky. 1941 ).

The requirements of post office address and correct date of signature are directory only. Skaggs v. Fyffe, 266 Ky. 337 , 98 S.W.2d 884, 1936 Ky. LEXIS 640 ( Ky. 1936 ); Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

A “date” is sufficient if it readily may be ascertained by a directed reference to another part of the petition. Ausmus v. Slusher, 382 S.W.2d 395, 1964 Ky. LEXIS 345 ( Ky. 1964 ).

Considering the size of the city involved, a designated street or a route number may adequately identify the “post office address” of a particular signer. Ausmus v. Slusher, 382 S.W.2d 395, 1964 Ky. LEXIS 345 ( Ky. 1964 ).

The statutory requirements concerning post office address and correct date of signing must be followed. Ausmus v. Slusher, 382 S.W.2d 395, 1964 Ky. LEXIS 345 ( Ky. 1964 ).

Provision requiring petitioners to be qualified as voters of territory affected is “mandatory” because jurisdictional. Skaggs v. Fyffe, 266 Ky. 337 , 98 S.W.2d 884, 1936 Ky. LEXIS 640 ( Ky. 1936 ).

When the court has called the election, the burden is upon contestants to show that petitioners were not legal voters. Skaggs v. Fyffe, 266 Ky. 337 , 98 S.W.2d 884, 1936 Ky. LEXIS 640 ( Ky. 1936 ).

Signers of local option petitions need not be registered voters. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ), (but see Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

The county court need not take proof or otherwise determine the qualification of the petitioners. Hawkins v. Walton, 271 Ky. 487 , 112 S.W.2d 661, 1938 Ky. LEXIS 3 ( Ky. 1938 ).

When petition is filed with the clerk and the court calls election pursuant to petition, it will be presumed that court was satisfied that signers of petition were legal voters. Hawkins v. Walton, 271 Ky. 487 , 112 S.W.2d 661, 1938 Ky. LEXIS 3 ( Ky. 1938 ).

Voters residing in magisterial districts which had been rendered dry by magisterial district elections were qualified to sign petition demanding a local option election in every voting precinct in county except specified cities, since they were voters of territory to be affected. Gross v. Maddox, 257 S.W.2d 589, 1953 Ky. LEXIS 796 ( Ky. 1953 ).

A person is a constitutionally qualified voter only if he is qualified under Const., § 145 and is registered. Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

Signatures from earlier abandoned petition which set forth date of election could not be attached to later petition which left blank date of election. Morgan v. Walker, 289 Ky. 92 , 158 S.W.2d 5, 1941 Ky. LEXIS 23 ( Ky. 1941 ).

Where county judge (now county judge/executive) did not show himself to be qualified as a handwriting expert, he had no authority, on the basis of his own comparison of the signatures on the petition with the signatures on the registration books of the county, to strike names from the petition on the ground that the signatures were not genuine, particularly where there was direct positive testimony by the persons in question that they did sign the petition. Widick v. Pursifull, 299 Ky. 773 , 187 S.W.2d 447, 1945 Ky. LEXIS 791 ( Ky. 1945 ).

In the absence of a showing that the county judge (now county judge/executive) was sufficiently acquainted with signatures to qualify as an expert, his decision that certain signatures should be stricken is not entitled to any weight. Boyd v. Alexander, 284 S.W.2d 85, 1955 Ky. LEXIS 15 ( Ky. 1955 ).

If the county judge/executive is satisfied with the petition for a local option election prima facie, or has personal knowledge without hearing evidence, that signatures and petitioners are what and whom they purport to be, and constitute the required percent of voters, he is authorized to order the election. Skaggs v. Fyffe, 266 Ky. 337 , 98 S.W.2d 884, 1936 Ky. LEXIS 640 ( Ky. 1936 ).

Questioned signatures may be disregarded when there are a sufficient number of legal signatures. Hessler v. Garner, 266 Ky. 507 , 99 S.W.2d 461, 1936 Ky. LEXIS 693 ( Ky. 1936 ); Howard v. Farmer, 268 Ky. 303 , 104 S.W.2d 957, 1937 Ky. LEXIS 440 ( Ky. 1937 ).

Where there were 46 separate papers or units of petition for local option election circulated over the county and the number of voters signing all these petitions aggregated the sum of approximately 2,200 and clerk on receipt of the bundle of petitions placed his indorsement on the back of the outside petition there was substantial compliance with the statutory requirements and contention that only the petition indorsed by the clerk could be counted was in error. Rodgers v. Campbell, 267 Ky. 261 , 101 S.W.2d 937, 1937 Ky. LEXIS 301 ( Ky. 1937 ); Wilson v. Lawrence, 268 Ky. 179 , 103 S.W.2d 955, 1937 Ky. LEXIS 427 ( Ky. 1937 ).

Presumption of sufficiency of signatures arising from fact that judge ordered the election, together with testimony that petition contained sufficient signatures when filed, held to establish legality of petition. Bryant v. Birdwell, 273 Ky. 767 , 117 S.W.2d 907, 1938 Ky. LEXIS 700 ( Ky. 1938 ).

Signatures appended to petition by persons circulating the petition, at the direction and in the presence of the persons whose names were so appended, were valid and were required to be counted. Widick v. Pursifull, 299 Ky. 773 , 187 S.W.2d 447, 1945 Ky. LEXIS 791 ( Ky. 1945 ).

There is a presumption that each signature upon a petition was written by the voter himself. Boyd v. Alexander, 284 S.W.2d 85, 1955 Ky. LEXIS 15 ( Ky. 1955 ).

A local option election ballot designating voting precinct by name only, was not fatally defective for failure to set out precinct number and name of county, where election order, signed by the county judge (now county judge/executive), directing the sheriff to advertise order in county newspaper, and post notices in precinct, clearly identified the county and the precinct number, and there was no evidence that voters did not know location of precinct. Robinson v. Spradlin, 303 Ky. 451 , 197 S.W.2d 919, 1946 Ky. LEXIS 866 ( Ky. 1946 ).

Voters living in magisterial districts which were dry territory by reason of previous district elections were qualified voters of the “territory to be affected” within the meaning of this section, as concerned petition for county-wide local option election, notwithstanding that adoption of county-wide prohibition would not change status in such districts. Widick v. Pursifull, 299 Ky. 773 , 187 S.W.2d 447, 1945 Ky. LEXIS 791 ( Ky. 1945 ).

The legislature did not intend that the voters of one district, city, or precinct could petition for an election in another city, district, or precinct. Herron v. McMurray, 303 Ky. 190 , 197 S.W.2d 55, 1946 Ky. LEXIS 803 ( Ky. 1946 ).

There is nothing in the words of this section to suggest a legislative intent that a precinct once established is irrevocably fixed in perpetuity as a local option voting unit. Reeves v. Zirkle, 331 S.W.2d 723, 1959 Ky. LEXIS 6 ( Ky. 1959 ).

Where the county voted dry as a unit, another vote on the question by less than the county unit would be contrary to law. Stice v. Milliken, 343 S.W.2d 824, 1961 Ky. LEXIS 440 ( Ky. 1961 ).

It is not mandatory that the order be made at the current or next regular term, it being permissible to make the order at a subsequent regular term, yet it must be done a sufficient length of time before the election is held to amount to a substantial compliance with the statute. Hardigree v. White, 266 Ky. 648 , 99 S.W.2d 785, 1936 Ky. LEXIS 730 ( Ky. 1936 ).

Where a proper petition for a local option election was filed during a special term of the county court and an order calling an election was immediately entered, and, during the second succeeding regular term, the county judge (now county judge/executive) withdrew the void order (an order calling an election must be entered during a regular term), but refused to permit petitioners to withdraw the petition and refile same, or to sustain their motion to enter an order calling an election based upon the petition as originally filed, mandamus issued directing county judge (now county judge/executive) to follow the latter procedure. Martin v. Cheek, 309 Ky. 319 , 217 S.W.2d 785, 1949 Ky. LEXIS 700 ( Ky. 1949 ).

Where a county judge fails to comply with the mandatory provisions of this section and does not call an election at the current or next regular term after the filing of the petition, this failure should be regarded as a clerical misprision which may be corrected as such. Howard v. Carty, 275 S.W.2d 68, 1955 Ky. LEXIS 349 ( Ky. 1955 ).

Since present statute does not except druggists as did former law, clause “shall apply to druggists” in the court order calling an election under this section is mere surplusage and did not invalidate the court order. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

The order calling the election need not contain the form of the question to be submitted. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ); Terrill v. Taylor, 271 Ky. 475 , 112 S.W.2d 658, 1938 Ky. LEXIS 2 ( Ky. 1938 ); Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

Order calling election need not contain any notice of the places at which, or the hours between which, the election would be held. Terrill v. Taylor, 271 Ky. 475 , 112 S.W.2d 658, 1938 Ky. LEXIS 2 ( Ky. 1938 ).

Election is not invalid because the order calling for it used the word “census” instead of “sense” as in this section. Duncan v. McMurray, 249 S.W.2d 156, 1952 Ky. LEXIS 809 ( Ky. 1952 ).

County court had no jurisdiction at special term to amend original order, made at prior term, directing local option election to be held, to include territory not included in original order. Ray v. Spiers, 281 Ky. 549 , 136 S.W.2d 750, 1940 Ky. LEXIS 65 ( Ky. 1940 ).

The order may be made on any day of the current or next regular term or adjourned regular session thereof. Howard v. Farmer, 268 Ky. 303 , 104 S.W.2d 957, 1937 Ky. LEXIS 440 ( Ky. 1937 ); Hinton v. Stewart, 272 Ky. 162 , 113 S.W.2d 1150, 1938 Ky. LEXIS 100 ( Ky. 1938 ).

When the order is made at a special term, the election is void. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ); Hinton v. Stewart, 272 Ky. 162 , 113 S.W.2d 1150, 1938 Ky. LEXIS 100 ( Ky. 1938 ).

The order may be made the same day the petition is filed, if at a regular session. Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ).

Subsection (4) of this section requiring order for election to be made at a regular term is mandatory and an order made at any other term is invalid. Hinton v. Stewart, 272 Ky. 162 , 113 S.W.2d 1150, 1938 Ky. LEXIS 100 ( Ky. 1938 ).

Where there was no order adjourning January term until last day of January, order entered on January 12 was entered during term. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

Where court, after days on which July and August terms began, adjourned from day to day, petition filed seven days after day on which July term began was filed in July term, and order calling election made four days after day on which August term began was made in August term, which constituted a compliance with subsection (4) of this section. Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

Where order for local option election was entered on a day during regular term of county court, and order was signed in due course, presumably on that date, the requirements of subsection (4) of this section were met, notwithstanding the county judge (now county judge/executive) may have determined the question and authorized the entry of the order previous to the regular term. Steele v. Perry County, 299 Ky. 827 , 187 S.W.2d 302, 1945 Ky. LEXIS 781 ( Ky. 1945 ).

Where county court continued May term from day to day until May 29, order calling local option election on May 20 was made during regular term although other orders during May were designated as being made at a special term. McDonald v. Whallen, 415 S.W.2d 840, 1967 Ky. LEXIS 335 ( Ky. 1967 ).

When the order calling the election is not signed by the judge until after the election is held, the election is void. Hardigree v. White, 266 Ky. 648 , 99 S.W.2d 785, 1936 Ky. LEXIS 730 ( Ky. 1936 ).

When the order calling the election is not recorded upon the order book until after the election is held, the election is void. Hardigree v. White, 266 Ky. 648 , 99 S.W.2d 785, 1936 Ky. LEXIS 730 ( Ky. 1936 ).

The fact that the judge did not sign the order book until after the election is not fatal. Hardigree v. White, 266 Ky. 648 , 99 S.W.2d 785, 1936 Ky. LEXIS 730 ( Ky. 1936 ); Murphy v. Cundiff, 269 Ky. 645 , 108 S.W.2d 644, 1937 Ky. LEXIS 651 ( Ky. 1937 ).

Local option election was not void because county judge (now county judge/executive) failed to sign order book before election, where he signed original order before entry and also signed order book after election. Harris v. Cannon, 304 Ky. 3 , 199 S.W.2d 429, 1946 Ky. LEXIS 927 ( Ky. 1946 ).

Failure of the county court, at the term at which petition was filed, to enter an order on the order book noting the filing of the petition, did not render the election void, where the court, on the first day of the next regular term, had entered an order calling the election and filing the petition. Hall v. Sturgill, 305 Ky. 445 , 204 S.W.2d 496, 1947 Ky. LEXIS 827 ( Ky. 1947 ).

The fact that the order calling the election was misdated is not fatal, since it can be shown that it was actually made at a regular term. Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ).

A judgment nunc pro tunc calling an election cannot be entered after the election is held when no prior entry of record of any kind has been made. Hardigree v. White, 266 Ky. 648 , 99 S.W.2d 785, 1936 Ky. LEXIS 730 ( Ky. 1936 ).

An election should be called by the county court of the county, the larger portion of whose territory was embraced by the town. Ray v. Spiers, 281 Ky. 549 , 136 S.W.2d 750, 1940 Ky. LEXIS 65 ( Ky. 1940 ).

Where the judge has found the petition is regular, the calling of the election is merely ministerial, and the entry of such an order may be made retroactively so long as the actual entry of the order precedes the date of the election. Bays v. Bradley Mills, 254 S.W.2d 348, 1953 Ky. LEXIS 585 ( Ky. 1953 ).

It was the intention of the legislature to treat a city election as one to be held as a unit in all the precincts embracing that city. Howard v. Carty, 275 S.W.2d 68, 1955 Ky. LEXIS 349 ( Ky. 1955 ).

Norton v. Letton, 271 Ky. 353 , 111 S.W.2d 1053, 1937 Ky. LEXIS 242 ( Ky. 1937 ); Cunningham v. Humphreys, 273 Ky. 134 , 115 S.W.2d 1067, 1938 Ky. LEXIS 601 ( Ky. 1938 ); Long v. Smith, 281 Ky. 512 , 136 S.W.2d 789, 1940 Ky. LEXIS 74 ( Ky. 1940 ); Commonwealth ex rel. Meredith v. Fife, 288 Ky. 292 , 156 S.W.2d 126, 1941 Ky. LEXIS 96 ( Ky. 1941 ); Franklin v. Pursiful, 295 Ky. 222 , 173 S.W.2d 131, 1943 Ky. LEXIS 187 ( Ky. 1943 ); Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ); Peel v. Boyle County, 301 Ky. 655 , 191 S.W.2d 923, 1945 Ky. LEXIS 74 4 ( Ky. 1945 ); Fuson v. Howard, 305 Ky. 843 , 205 S.W.2d 1018, 1947 Ky. LEXIS 936 ( Ky. 1947 ); Duncan v. McMurray, 249 S.W.2d 156, 1952 Ky. LEXIS 809 ( Ky. 1952 ); Evans v. Maddox, 260 S.W.2d 661, 1953 Ky. LEXIS 984 ( Ky. 1953 ); Mastin v. Cornett, 373 S.W.2d 424, 1963 Ky. LEXIS 159 ( Ky. 1963 ); Barnard v. Stone, 933 S.W.2d 394, 1996 Ky. LEXIS 114 ( Ky. 1996 ); Dalton v. Fortner, 125 S.W.3d 316, 2003 Ky. App. LEXIS 281 (Ky. Ct. App. 2003), rehearing denied, 2004 Ky. App. LEXIS 5 (Ky. Ct. App. 2004).

Opinions of Attorney General.

The phrase “qualified voter” as used in this section means a voter who is constitutionally qualified and properly registered, so that a person who signs a local option petition must be 18 years of age, a resident of the state for one year, of the county for six months, and of the precinct for 60 days as prescribed by Ky Const., § 145, and be a duly registered voter, but need not have voted in the last election. OAG 66-190 .

While under subsection (1) of this section, a petition may consist of one or more separate units, each unit should clearly indicate that it is part of a single petition calling for a local option election on a certain date. OAG 66-190 .

In a county-wide local option election, cities of the first four classes vote separately and are not controlled by the vote in the rest of the county. OAG 66-309 .

Once an entire county has voted dry, no smaller unit of that county can hold a separate election for voting wet except for cities of the first four classes. Accordingly, a county court should not order a local option election to be held in a county that has voted dry even though the petition filed with the court meets all the requirements of this section. OAG 70-500 .

Although the addresses following the names on a petition are not specific, such signatures should be counted in determining the number of valid signatures unless the names are challenged. OAG 73-64 .

Once a petition for the holding of a local option election has been filed with the county court clerk, the petition containing the signatures of the petitioners becomes a record of the county clerk and the petition signer no longer possesses the right to enjoin or prohibit the use of his name without his consent, so that a citizen or a group of citizens could obtain all of the names on a local option petition calling for an election on the sale of alcoholic beverages and publish the names of the signers without the consent of the signers. OAG 73-134 .

When the boundaries of a precinct are changed in order to decrease the number of registered voters to the legal maximum of 700 as provided by KRS 127.050 (repealed), a local option election can be validly called in the new precinct only upon a petition of qualified voters of the new precinct equal to 25 percent of the votes cast by the voters in the new precinct at the last preceding general election. OAG 73-300 .

There is no time limit as to when a petition must be filed after the first petitioner signs the petition, but all signers of the petitions for local option elections must be registered voters so that the signature of anyone who has moved out of the territory or who has died prior to the filing date of the local option election petition cannot be considered the signature of a “constitutionally qualified voter.” OAG 73-707 .

A local option election may not be held for an annexed portion of a city where the portion is less than a whole precinct as the smallest division encompassed by the term “territory” is a precinct. OAG 74-451 .

Where, subsequent to local option election in city in which city voted “wet,” territory was annexed to city, application for a malt beverage license should have been denied since the annexed territory encompassing the location of the business for which the malt beverage license was being sought remained “dry” after becoming annexed to the city and an election would have to be held in the entire precinct encompassing the annexed territory and therefore in the location of the business for which the malt beverage license was sought in order to redetermine the local option status of the annexed territory, including the business location in question. OAG 76-644 .

Any part of a “wet” magisterial district that is subsequently reapportioned into another magisterial district will remain “wet” and any part of a “dry” magisterial district that is subsequently reapportioned to another magisterial district will remain “dry.” OAG 77-10 .

The holding of a city-wide election which produces a vote against prohibition does not prevent a local option election from thereafter being held in any precinct of the city. OAG 79-382 .

The smallest area considered and defined as a territory is a precinct and no smaller political unit or area of a city or county can hold a local option election. OAG 79-382 .

Where three commercial liquor establishments located in a county precinct about to have a local option election were annexed by a “wet” city the day before the election, they were no longer a part of that precinct and would be unaffected by the outcome of the election. OAG 79-580 .

A voter who signs a petition for a local option election must indicate his address opposite his name for identification purposes that can either be his exact residence or a post office address, since such designation has been held to be directory rather than mandatory and the clerk may exercise his own discretion as to whether the designation is sufficient in order to identify the petitioner as a qualified voter. OAG 80-431 .

A petition for a local option election is a public record and may be inspected by any person and the petition may be published in a newspaper or in any other manner, including the names of the persons who signed the petition; unless a person purported to have signed a petition has had the court declare that his name was placed on the petition without the person’s authority and should therefore be removed, the person has no legal recourse if his name is made public as a signer of the petition and there is no liability for the disclosure of the petition and the names thereon. OAG 80-450 .

When a local option election is confined to the corporate limits of the city, only those qualified voters residing within the city are entitled to sign the petition or to vote in the election; the clerk, in sending out the registration lists to the split precincts, should indicate which voters live within or without the city so that the election officers can lockout the local option election for those voters who may appear but who are not entitled to vote in the city election by virtue of being nonresidents. OAG 80-466 .

When a local option petition is filed, it is the responsibility of the clerk, on behalf of the county judge/executive who calls the election, to check the petition to see if the correct percentage of the qualified voters have signed as required by this section; following the filing of the petition it can be challenged in court by any qualified voter in opposition to the election. OAG 80-466 .

A local option election petition must be signed by voters who are duly registered and thereby presumed to be constitutionally qualified to vote. OAG 80-492 .

It is the county judge/executive who is responsible for examining the petition for a local option election on its face to determine whether the petition is correctly filed under the express terms of this section, but the county judge/executive can call on the clerk to assist him in comparing the petition with the voters’ registration data on file in the clerk’s office; where the county judge/executive has good reason to believe that a particular signature is not genuine, he may ask the person with that name to voluntarily come to the county judge/executive’s office to give evidence about it, one way or the other, and if it appears to the county judge/executive, after such evidence, that someone other than the so-called petitioner signed his name without authority, the county judge/executive may eliminate such name by an order in his executive order book, and such signature will not be counted as a petitioner. OAG 80-495 ; 82-538.

So long as it appears a signer is a constitutionally qualified voter in the county and that he signed his own name, a misstatement as to his residence would not be a basis for the county judge/executive’s ordering the elimination of that name from the local option election petition. OAG 80-495 .

The county judge/executive has no authority to issue subpoenas in connection with the examination of a petition for a local option election. OAG 80-495 .

The smallest territory in which a local option election may be held is a precinct. OAG 81-399 .

A petition for a local option election is to be kept by the county clerk, as he is the one with whom the petition is required to be filed pursuant to subsection (1) of this section. OAG 83-134 .

A county clerk cannot be held liable in a civil suit for making a petition for a local option election available to the public for inspection or having a copy made since, by law, it becomes a public record when it is filed subject to both inspection and copying; the mere fact that the petition is subsequently declared invalid for insufficient compliance with the statute would have no bearing on the clerk’s civil liability. OAG 83-134 .

Once a petition for a local option election is filed and duly recorded, it becomes a public record irrespective of whether or not it is found to meet the statutory requirements for validity and cannot be withdrawn. Thus, where the petition was ruled invalid for not containing a sufficient number of signatures, those favoring a referendum on the subject would be required to start over and submit an entirely new petition. OAG 83-134 .

As long as the petitioner is registered to vote prior to the filing of the petition, his signature should be counted as a valid signature, even though at the time he may have signed the petition he had not registered. OAG 85-60 .

A petition is valid if it contains sufficient information to determine if a sufficient number of qualified voters request the election, regardless of whether the petition strictly complies with the provisions of the statute. OAG 91-174 .

If a petition could be valid despite the omission of Social Security numbers, it necessarily follows that an irregularity in the inclusion of the numbers, such as using voter’s files from the clerk’s office to add the numbers to the signed petition, would not necessarily invalidate the petition. OAG 91-174 .

The complete omission of a Social Security number or date of birth would not necessarily invalidate a petition, as long as the county judge/executive can make the required determination of whether a sufficient number of voters request the election. OAG 91-174 .

The petition must state the petitioner’s address, and the date on which he signed, and either the petitioner’s Social Security number or date of birth. OAG 91-174 .

As the date may be omitted entirely without disqualification of the voter’s signature, it follows that a mere alteration to the date does not necessarily disqualify the petition or the signature. OAG 91-204 .

If the signers were in fact registered as of the original date on the petition and not the altered date, then the names may be counted. OAG 91-204 .

A local option petition may be supplemented at any time before the county judge/executive has made a determination regarding the sufficiency of the petition. After the county judge/executive has determined that the petition either is or is not sufficient, the petitioners may not tender supplemental signatures. OAG 92-132 .

The petition is filed with the clerk, since the clerk is the official custodian of such records, and the clerk then delivers the petition to the county judge/executive. OAG 92-132 .

The petitioner must state his social security number or date of birth. If this information is given, the clerk should be able to determine the identity of the person signing even though the actual signature may be illegible. Therefore an illegible signature should be disallowed only if the clerk or the county judge/executive is unable to determine the petitioner’s identity after consulting the other information given on the petition. OAG 92-132 .

The provisions of the local option statute requiring petitioners to state their address and date of signing were “directory” rather than mandatory, and therefore the names of petitioners should be counted even if they omitted the address or date entirely. OAG 92-132 .

This section, in conjunction with the general law on petitions, requires that a petitioner be a qualified voter both at the time the petition is signed and at the time it is filed. OAG 92-132 .

Research References and Practice Aids

Cross-References.

Alcoholic Beverages — Administration and control, KRS Ch. 241.

Alcoholic beverages — Licenses and taxes, KRS Ch. 243.

Alcoholic beverages — Prohibitions, restrictions and regulations, KRS Ch. 244.

Denatured alcohol, container to have label indicating poison, KRS 217.440 .

Local option election in city, town, district or precinct, general assembly may pass general law for; Const., § 61.

Local option election in city, town, district or precinct, general assembly not to pass special law for; Const., § 59(27).

Peace officers, penalty of, for not enforcing chapter, KRS 61.170 .

Kentucky Law Journal.

Milner, Local Option, Effect of Election in County Upon Prior Election Held Within Municipality Within the County, 26 Ky. L.J. 377 (1938).

ALR

Operation and effect, in dry territory, of general state statute making sale or possession for sale of intoxicating liquor, without a license, an offense, 8 A.L.R.2d 750.

Change of “wet” or “dry” status fixed by local option election by change of name, character, or boundaries of voting unit, without later election, 25 A.L.R.2d 863.

242.021. Restriction on frequency of city’s request to increase quota retail licenses — Publication of notice of request — Contents of request — Burden on city to show that increase is necessary.

  1. A city shall not file a request with the board seeking to increase the number of quota retail licenses for the city unless at least three (3) years have passed since the certification of its local option election approving alcohol sales.
  2. Prior to making its request, the city shall publish a notice in the newspaper used for its legal notices, advising the general public of the city’s intent to request additional licenses from the board.
  3. The request to the board for a quota increase shall include:
    1. A certified copy of the governing body’s resolution approving the request;
    2. A certified copy of the notice referenced in subsection (2) of this section; and
    3. An explanation as to the reason the city meets the criteria established in KRS 241.069 for a quota increase.
  4. The city shall bear the burden of showing an increase is necessary.
  5. A city shall not petition the board for an increase more than once every three (3) years.

HISTORY: 2018 ch. 154, § 6, effective April 14, 2018.

242.022. Local option election for limited sales of alcoholic beverages by the drink at qualifying state park.

    1. To promote economic development and tourism in any dry or moist county, urban-county government, charter county, consolidated local government, unified local government, or city, in which a state park is located, a local option election for the limited sales of alcoholic beverages by the drink may be held in a city, county, urban-county government, charter county, consolidated local government, or unified local government, precinct where the state park’s qualifying lodge or golf course is located. (1) (a) To promote economic development and tourism in any dry or moist county, urban-county government, charter county, consolidated local government, unified local government, or city, in which a state park is located, a local option election for the limited sales of alcoholic beverages by the drink may be held in a city, county, urban-county government, charter county, consolidated local government, or unified local government, precinct where the state park’s qualifying lodge or golf course is located.
    2. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election under KRS 242.022 on the following question: “‘Are you in favor of the sale of alcoholic beverages by the drink at the state park located in (name of precinct)?’”.
  1. A local option election for the limited sale of alcoholic beverages by the drink held under subsection (1) of this section shall be conducted in the same manner as specified in KRS 242.020 to 242.040 and 242.060 to 242.120 . The form of the proposition to be voted upon shall be “Are you in favor of the sale of alcoholic beverages by the drink at the state park located in the (name of precinct)?”.
  2. When a majority of the votes cast at an election held under subsections (1) and (2) of this section are in favor of establishing moist territory, the entire state park shall become moist in the manner specified in KRS 242.200 .

HISTORY: Enact. Acts 2014, ch. 20, § 2, effective July 15, 2014; 2017 ch. 62, § 19, effective June 29, 2017; 2017 ch. 190, § 5, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 62 and 190, which do not appear to be in conflict and have been codified together.

242.030. Date of local option election.

  1. The date of the local option election shall be stated in the petition for the local option election.
  2. The local option election shall be held not earlier than sixty (60) and not later than one hundred fifty (150) days after the date the petition is filed with the county clerk.
  3. No local option election shall be held in the same territory more than once in every three (3) years.
  4. In order for the local option election to be held on the day fixed by law for holding a primary, the petition shall be filed not earlier than the first Wednesday after the first Monday in November of the year preceding the day on which the primary is to be held and not later than the last Tuesday in January preceding the day fixed by law for holding the primary.
  5. In order for the local option election to be held on the day fixed by law for a regular election, the petition shall be filed not later than the second Tuesday in August preceding the day fixed by law for holding the regular election.

HISTORY: 2554c-4: amend. Acts 1948, ch. 47, § 2; 1978, ch. 384, § 375, effective June 17, 1978; 1998, ch. 121, § 3, effective July 15, 1998; 2017 ch. 62, § 20, effective June 29, 2017; 2017 ch. 190, § 2, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 62 and 190, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Constitutionality.

The amendment of this section by Acts 1948, ch. 47, was constitutional. McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ).

2.Purpose.

The purpose of this section, in requiring that at least 60 days elapse after filing of petition before holding of local option election, is to give ample time for investigation of signers of petition to determine validity of signatures. Therefore trial court, in contest of local option election, did not err in failing to grant contestants more than five days additional time in which to take proof concerning insufficiency of signatures on petition. Peel v. Boyle County, 301 Ky. 655 , 191 S.W.2d 923, 1945 Ky. LEXIS 744 ( Ky. 1945 ).

3.Application.

This statute was intended to apply only to elections in which the voters of the proposed local option territory were participants. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

4.Elections.

Subsection (5) of this section refers to valid elections, and the holding of election which had been declared void did not invalidate subsequent election held the following year. Buchanan v. Clark, 275 Ky. 311 , 121 S.W.2d 681, 1938 Ky. LEXIS 413 ( Ky. 1938 ).

Subsection (3) of this section is mandatory and prohibits any election within 30 days of a general election but does not destroy the rights of the parties which have accrued under subsection (2) merely tolling the election for a month. Boyd v. Alexander, 284 S.W.2d 85, 1955 Ky. LEXIS 15 ( Ky. 1955 ).

5.— Time of Holding.

The county court may order the election held on a date other than that named in the petition, provided it is not earlier than 60 nor later than 90 days after the filing of the petition and the court’s discretion in selecting a suitable date is not abused. Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ).

Election may be held earlier than 60 days after the date of entry of the order calling the election, since this section only prohibits holding the election earlier than 60 days after the date the petition is filed. Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ).

The county judge (now county judge/executive) has the right to fix the date for the election, within the statutory period. Harris v. Cannon, 304 Ky. 3 , 199 S.W.2d 429, 1946 Ky. LEXIS 927 ( Ky. 1946 ).

Under Ky. Const. § 61, the General Assembly was given the authority to determine policy and draft laws regulating alcohol, and to that end, the General Assembly drafted KRS 242.030 setting forth the requirements for a local option election about whether the sale of alcohol would be permitted and dictating that no local option election could be held in the same territory more than once in every three years. Accordingly, the precinct could not hold a local option election approximately five weeks after one had just been held, as KRS 242.010 barred counties within which the precincts were located from holding a local option election so soon after the last local option election. Grow Trigg, Inc. v. Trigg County, 344 S.W.3d 704, 2011 Ky. App. LEXIS 87 (Ky. Ct. App. 2011).

6.— Regular Political Election.

Contestants had burden of showing that election held three days before local option election was “regular political election.” Buchanan v. Clark, 275 Ky. 311 , 121 S.W.2d 681, 1938 Ky. LEXIS 413 ( Ky. 1938 ).

Election of members of school board is a “regular political election”; hence local option election held seven days after school election would be set aside. Norton v. Letton, 271 Ky. 353 , 111 S.W.2d 1053, 1937 Ky. LEXIS 242 ( Ky. 1937 ).

Since election to fill vacancy caused by resignation of congressman was a “special” and not a “regular political election,” holding of local option election in same territory within 30 days thereafter did not violate subsection (3) of this section. Buchanan v. Clark, 275 Ky. 311 , 121 S.W.2d 681, 1938 Ky. LEXIS 413 ( Ky. 1938 ).

7.— Territorial Limitation.

Where local option election was held in precinct and a year later such an election was held in the county the two elections were not held in the same territory in violation of subsection (5) of this section. Bennett v. Day, 271 Ky. 676 , 113 S.W.2d 38, 1938 Ky. LEXIS 43 ( Ky. 1938 ).

County election on question of adoption of local option law did not bar similar election in subdivision of county or city in county within three years following county election. Long v. Smith, 281 Ky. 512 , 136 S.W.2d 789, 1940 Ky. LEXIS 74 ( Ky. 1940 ); Morgan v. Stephens, 281 Ky. 517 , 136 S.W.2d 791, 1940 Ky. LEXIS 75 ( Ky. 1940 ).

The statute prohibiting a second vote within three years has reference to an election in the identical territory. Franklin v. Pursiful, 295 Ky. 222 , 173 S.W.2d 131, 1943 Ky. LEXIS 187 ( Ky. 1943 ).

Where election was held in entire magisterial district the result being against prohibition, an election less than three years later in three precincts of the district the result being for prohibition was not prohibited by subsection (5) of this section. Ball v. Hill, 240 S.W.2d 628, 1951 Ky. LEXIS 1007 ( Ky. 1951 ).

Three (3)-year moratorium on local option elections provided for in subsection (5) of this section did not apply to a precinct located within a fourth class city which had voted to abolish prohibition; a precinct within a fourth class city is not the same territory as the city. Parrott v. Belcher, 884 S.W.2d 634, 1994 Ky. LEXIS 25 ( Ky. 1994 ).

Voters of individual precincts of a county not containing a city of the first four (4) classes which had abolished prohibition had the right to separately vote, without regard to the three (3)-year moratorium, whether it should reinstate prohibition. Campbell v. Brewer, 884 S.W.2d 638, 1994 Ky. LEXIS 23 ( Ky. 1994 ).

8.Petition.

The words “file” and “lodge,” in connection with filing the petition, are intended to be synonymous in meaning and significance, i.e., a filing of the petition with the clerk is and should in itself constitute a sufficient “lodging” of it with him. Wilson v. Lawrence, 268 Ky. 179 , 103 S.W.2d 955, 1937 Ky. LEXIS 427 ( Ky. 1937 ).

Cited:

Morgan v. Walker, 289 Ky. 92 , 158 S.W.2d 5, 1941 Ky. LEXIS 23 ( Ky. 1941 ); Kelly v. Gruelle, 298 Ky. 450 , 183 S.W.2d 39, 1944 Ky. LEXIS 924 ( Ky. 1944 ); Fuson v. Howard, 305 Ky. 843 , 205 S.W.2d 1018, 1947 Ky. LEXIS 936 ( Ky. 1947 ); Martin v. Cheek, 309 Ky. 319 , 217 S.W.2d 785, 1949 Ky. LEXIS 700 ( Ky. 1949 ); Howard v. Carty, 275 S.W.2d 68, 1955 Ky. LEXIS 349 ( Ky. 1955 ).

Opinions of Attorney General.

The results of a wet-dry election held in the county and in two fourth-class cities within the county are determined by a separate tabulation of the votes in each of the respective territories. OAG 63-935 .

Wet-dry elections to be held in the county and in two fourth-class cities within the county on the same day come within the stated exception of KRS 242.125 . OAG 63-935 .

A congressional election is a general election within the local option election requirements. OAG 72-591 .

Where a petition for a local option election was filed April 1 and the county judge (now county judge/executive) set the election for June 30, the filing day is not counted and the election was properly set not more than 90 days from the date the petition was filed. OAG 75-379 .

Every city of the first four classes that establishes home rule by compliance with subsection (1) of KRS 242.125 may only thereafter change its status by holding another separate, special local option election under subsection (1) of KRS 242.125 and, since it cannot hold such an election more often than once in every three years, such city would not vote in a county-wide election where it had held an election establishing home rule within three years; moreover, such city having independently determined its own local option status, the outcome of a county-wide election would not affect the city. OAG 76-624 .

The time for holding a local option election is controlled by the date the petition is filed with the clerk, not by the date that the clerk certifies the petition. OAG 80-466 .

Where a county has previously held a county-wide local option election at which it voted in favor of prohibition, a fourth-class city located within that county is a separate territorial unit under subsection (1) of KRS 242.125 for the purpose of determining its status on the issue of prohibition, and the city may proceed immediately with a city-wide local option election without waiting for three years as specified in subsection (5) of this section. OAG 81-271 .

Research References and Practice Aids

Cross-References.

Local option election on the sale of liquor, time of elections, Const., § 61.

Kentucky Law Journal.

Milner, Local Option, Effect of Election in County Upon Prior Election Held Within Municipality Within the County, 26 Ky. L.J. 377 (1938).

242.040. Advertisement of election.

Within five (5) days after the county judge/executive orders an election, the county clerk shall give to the sheriff a certified copy of the order. The sheriff shall have the order published pursuant to KRS Chapter 424 in the county. When the election is ordered for the entire county, the sheriff shall also advertise the order by written or printed handbills posted at not less than five (5) conspicuous places in each precinct of the county for two (2) weeks before the election, and, when the election is ordered held in a city, district or precinct, at five (5) conspicuous places in each precinct therein for the same length of time. The sheriff shall report in writing to the county judge/executive that the notices have been published and posted.

History. 2554c-5: amend. Acts 1966, ch. 239, § 173; 1978, ch. 384, § 376, effective June 17, 1978.

NOTES TO DECISIONS

1.Order.

Two (2) weeks means fourteen (14) consecutive days. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

Copy of court’s duly signed order calling election, marked “copy attest” by clerk, sufficiently complied with requirement of certified copy. Ennis v. Adkins, 274 Ky. 121 , 118 S.W.2d 175, 1938 Ky. LEXIS 234 ( Ky. 1938 ).

2.— Delivery.

The provision of this section as to time of delivery to sheriff of order calling election is merely directory. Adams v. Wakefield, 301 Ky. 35 , 190 S.W.2d 701, 1945 Ky. LEXIS 687 ( Ky. 1945 ), overruled, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

Where order calling local option election was made on December 4, but was not entered on order book until December 6, the fact that copy of order was delivered to sheriff, for purpose of publication, on December 5, would not invalidate the election. Adams v. Wakefield, 301 Ky. 35 , 190 S.W.2d 701, 1945 Ky. LEXIS 687 ( Ky. 1945 ), overruled, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

The five-day provision is directory, but the clerk must furnish a copy of the order to the sheriff in time to give him a reasonable opportunity to advertise same as required by law. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

3.— Publication.

The provisions as to the proper publication of the order calling the election are mandatory. Wolfe County Liquor Dispensary Ass'n v. Ingram, 272 Ky. 38 , 113 S.W.2d 839, 1938 Ky. LEXIS 75 ( Ky. 1938 ).

No publication other than that prescribed herein is sufficient. Wolfe County Liquor Dispensary Ass'n v. Ingram, 272 Ky. 38 , 113 S.W.2d 839, 1938 Ky. LEXIS 75 ( Ky. 1938 ).

Any local newspaper, regardless of the number of its subscribers, meets the statutory requirements, even though it is not the official organ of the county, and even though it is printed outside the county and is owned by a nonresident. Wolfe County Liquor Dispensary Ass'n v. Ingram, 272 Ky. 38 , 113 S.W.2d 839, 1938 Ky. LEXIS 75 ( Ky. 1938 ) (decision prior to 1966 amendment).

Where sheriff ordered publication of court order, calling local option election, editor’s “failure” to do so was a “refusal.” Ennis v. Adkins, 274 Ky. 121 , 118 S.W.2d 175, 1938 Ky. LEXIS 234 ( Ky. 1938 ) (decision prior to 1966 amendment).

4.— Time Requirement.

The first insertion, whether in a weekly or daily paper, must be at least two weeks prior to the election. Fisher v. Booher, 269 Ky. 501 , 107 S.W.2d 307, 1937 Ky. LEXIS 620 ( Ky. 1937 ); Goodpaster v. Shrout, 270 Ky. 827 , 110 S.W.2d 1093, 1937 Ky. LEXIS 168 (Ky. Ct. App. 1937) (decision prior to 1966 amendment).

An incorrect advertisement of an election to be held February 13th was published January 14th and 21st. A corrected advertisement was published January 28th and February 4th. No advertisement was published February 11th. Since there had been a correct advertisement 16 days before the election, it was held sufficient. Glidewell v. Pace, 269 Ky. 512 , 107 S.W.2d 325, 1937 Ky. LEXIS 627 ( Ky. 1937 ) (decision prior to 1966 amendment).

It is sufficient if the order calling the election is published for the required period; there is no requirement that any notice be published prefixing the order. Defect in notice composed and published by sheriff as prefix to order would not invalidate publication where order itself was properly published. Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ) (decision prior to 1966 amendment).

This section is mandatory as to the publication and posting of the notices of an election, but the provision concerning the time of such posting and publication is directory only, and a substantial compliance therewith is sufficient. Hall v. Sturgill, 305 Ky. 445 , 204 S.W.2d 496, 1947 Ky. LEXIS 827 ( Ky. 1947 ).

Publication of newspaper notices on July 8 and July 15, followed by posting of printed handbills, for election called for September 16, was a substantial compliance with this section, it not being required that the publication and posting be done during the two weeks immediately preceding the election. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ) (decision prior to 1966 amendment).

5.Notice.

It is not necessary that the advertisements be signed by the sheriff. Wilson v. Lawrence, 268 Ky. 179 , 103 S.W.2d 955, 1937 Ky. LEXIS 427 ( Ky. 1937 ); Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ); Winstead v. Clarke, 269 Ky. 594 , 108 S.W.2d 518, 1937 Ky. LEXIS 644 (Ky. 1937).

The posting and publishing by the sheriff of his synopsis of order calling election instead of the order itself rendered election invalid, and his signature to his synopsis did not give it verity. Terrill v. Taylor, 271 Ky. 475 , 112 S.W.2d 658, 1938 Ky. LEXIS 2 ( Ky. 1938 ).

Publication of announcements and ballot facsimiles do not meet the statutory requirements. Wolfe County Liquor Dispensary Ass'n v. Ingram, 272 Ky. 38 , 113 S.W.2d 839, 1938 Ky. LEXIS 75 ( Ky. 1938 ).

6.— Posting.

Failure to post any notice in certain precincts is a fatal omission. The statute must be at least substantially complied with. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

The notices may be posted by any person, even though he is interested in the outcome, at the direction of the sheriff. Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ); Hicks v. Conn, 270 Ky. 344 , 109 S.W.2d 811, 1937 Ky. LEXIS 81 ( Ky. 1937 ).

When local option election is held in a city, the posting of five notices, plus publication in a newspaper, is sufficient notice. Dance v. Anderson, 288 Ky. 431 , 156 S.W.2d 463, 1941 Ky. LEXIS 119 ( Ky. 1941 ).

Local option election held void under this section for sheriff’s failure to post election notices in all precincts. Hughes v. Johnson, 305 Ky. 133 , 203 S.W.2d 67, 1947 Ky. LEXIS 798 ( Ky. 1947 ); Hughes v. White, 305 Ky. 134 , 203 S.W.2d 67, 1947 Ky. LEXIS 800 ( Ky. 1947 ); Hughes v. Smith, 305 Ky. 134 , 203 S.W.2d 67, 1947 Ky. LEXIS 799 (Ky. 1947).

Where September 16 was last day for posting notices of local option election, and, with the exception of seven (7) precincts, such notices had been posted in time, but in six (6) of the seven (7) precincts notices were posted between 12 o’clock and 1 a.m. on September 17, and in other precinct they were posted on the afternoon of September 17, there was a substantial compliance with this section. Hall v. Sturgill, 305 Ky. 445 , 204 S.W.2d 496, 1947 Ky. LEXIS 827 ( Ky. 1947 ) (decision prior to 1966 amendment).

This section is mandatory as to the publication and posting of the notices of an election, but the provision is directory only, and a substantial compliance therewith is sufficient. Hall v. Sturgill, 305 Ky. 445 , 204 S.W.2d 496, 1947 Ky. LEXIS 827 ( Ky. 1947 ).

Where the sheriff admitted that he failed to post any handbills prior to a special local option election in a city, the trial court erred in holding the election valid since it was mandatory that the election be advertised by both types of publication required in this section. The election was invalid for improper advertisement despite the extensive publicity that the impending election received which resulted in the voters being adequately informed. Chumley v. Williams, 639 S.W.2d 557, 1982 Ky. App. LEXIS 252 (Ky. Ct. App. 1982).

7.— Proof.

Even if sheriff’s written report of posting of notices was not sufficient to meet requirement of this section, negative testimony of 25 witnesses that they had failed to see the requisite number of notices in any one precinct, and that in some precincts they had failed to see any notices, was insufficient to overcome the positive testimony of the sheriff and his deputies that they had posted the notices in each precinct as required by this section. Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ).

In local option election contest, testimony of various witnesses from all sections of county, that they failed to see any notices of the election in any public place prior to election, was negative evidence, and insufficient to overcome weight of returns, positive testimony of deputies that notices were duly posted, and testimony of numerous witnesses that they saw posted notices. Booth v. McKenzie, 302 Ky. 215 , 194 S.W.2d 63, 1946 Ky. LEXIS 609 ( Ky. 1946 ).

In suit contesting local option election, negative testimony by contestant’s witnesses that they failed to see any notices posted in public places or elsewhere during two-week period prior to election, was insufficient to overcome positive testimony of sheriff and deputies that notices were posted in five conspicuous places in each precinct over 14 days before election. Harris v. Cannon, 304 Ky. 3 , 199 S.W.2d 429, 1946 Ky. LEXIS 927 ( Ky. 1946 ).

Where the places selected by officers for posting notice of local option election were not the most conspicuous, but were at least public places, the court was not convinced that such places were so inconspicuous as to fail to meet the requirements of this section, especially since the city wherein the election was held was small and nearly 1,000 people out of a total population of 2,375 voted in the election. Ligon v. Beeny, 258 S.W.2d 454, 1953 Ky. LEXIS 828 ( Ky. 1953 ).

8.— Substantial Compliance.

The doctrine of substantial compliance may be used to uphold the validity of a local option election if the appropriate authority attempts to comply with the statutory prerequisites concerning notice, but the compliance is in some way defective. However, where an official makes no effort to comply with the statute, that failure is fatal and the doctrine of substantial compliance cannot be utilized. Chumley v. Williams, 639 S.W.2d 557, 1982 Ky. App. LEXIS 252 (Ky. Ct. App. 1982).

9.Sheriff’s Report.

A sheriff’s report that he “has had such bills posted” is sufficient, in the absence of evidence to the contrary. Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ).

While the statute requires the sheriff to report in writing to the county court that such notices have been published and posted, yet such provision is not mandatory, and the failure of the sheriff to technically comply with the statute in that respect will not render the election invalid. Hawkins v. Walton, 271 Ky. 487 , 112 S.W.2d 661, 1938 Ky. LEXIS 3 ( Ky. 1938 ).

Report of sheriff stating “Executed by posting notices and advertising in Harlan Daily Enterprise as directed” was a sufficient report that the sheriff had posted the notices required by this section, and in the absence of an allegation of fraud or mistake the report could not be collaterally attacked. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

If no report of the sheriff is filed, evidence may be heard as to whether notices were posted, but when report has been filed it is conclusive in absence of showing of fraud or mistake. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

The provision of this section requiring a written report of the sheriff on posting of notices to be filed with the county court is directory and not mandatory. Steele v. Perry County, 299 Ky. 827 , 187 S.W.2d 302, 1945 Ky. LEXIS 781 ( Ky. 1945 ).

Defect in sheriff’s return, in stating that he had advertised that “election would be held at least five times in conspicuous places in each precinct,” instead of stating that the handbills were posted in five conspicuous places in each precinct, was cured by amended answer and sheriff’s testimony in contest suit, showing proper advertisement. Peel v. Boyle County, 301 Ky. 655 , 191 S.W.2d 923, 1945 Ky. LEXIS 744 ( Ky. 1945 ).

Failure of sheriff to report in writing to county courts that the notices of proposed election had been published and posted, which was an important process that should be observed, was not a mandatory provision after the election had been held, and issue as to whether notices were posted and published as required by law could be raised in a contest, though sheriff did not file his report, the difference being in the matter of the burden and weight of evidence. Duncan v. McMurray, 249 S.W.2d 156, 1952 Ky. LEXIS 809 ( Ky. 1952 ).

10.— Challenge.

Where there was no allegation that sheriff failed to publish the required newspaper advertisements, sheriff’s return on back of printed notice certifying that the notice was printed and at least five were placed in each of the voting precincts, was sufficient compliance with this section and since there was no allegation of fraud or mistake truth of sheriff’s return could not be questioned collaterally under KRS 61.060 . Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ).

Report of the sheriff, though not offered for filing until nearly 60 days after the election and 30 days after institution of contest suit, could be attacked only in a direct proceeding or upon allegation of fraud or mistake, as prescribed in KRS 61.060 . Steele v. Perry County, 299 Ky. 827 , 187 S.W.2d 302, 1945 Ky. LEXIS 781 ( Ky. 1945 ).

Cited:

Murphy v. Cundiff, 269 Ky. 645 , 108 S.W.2d 644, 1937 Ky. LEXIS 651 ( Ky. 1937 ); Hicks v. Conn, 270 Ky. 344 , 109 S.W.2d 811, 1937 Ky. LEXIS 81 (1937); Hughes v. Ramey, 305 Ky. 128 , 203 S.W.2d 63, 1947 Ky. LEXIS 797 ( Ky. 1947 ); Queenan v. Louisville, 313 Ky. 816 , 233 S.W.2d 1010, 1950 Ky. LEXIS 998 ( Ky. 1950 ); McDonald v. Whallen, 415 S.W.2d 840, 1967 Ky. LEXIS 335 ( Ky. 1967 ).

Opinions of Attorney General.

While this section requires the publication of the order calling a local option election, there is no provision for publication of the petition, and neither the clerk nor the sheriff are authorized to publish it. OAG 66-190 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Tavern and Driver by Pedestrian Struck by Intoxicated Driver on Sidewalk, Failure to Keep Control of Vehicle, Form 135.06.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Minor Against Liquor Store That Sold Liquor to Minor Who Subsequently Had One Car Accident, Form 132.04.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Third Party Against Liquor Store That Sold Liquor to Minor Who Caused Automobile Accident, Form 132.02.

ALR

Change of “wet” or “dry” status fixed by local option election by change of name, character, or boundaries of voting unit, without later election. 25 A.L.R.2d 863.

Inclusion or exclusion of first and last days in computing time for giving notice of local option election which must be given a certain number of days before a known future date. 98 A.L.R.2d 1387.

242.050. Form of proposition.

The proposition to be voted upon shall be stated without emblems and voters shall designate a “Yes” or a “No” vote. In any election the form of the proposition shall be, “Are you in favor of the sale of alcoholic beverages in (name of county or city)?”.

History. 2554c-6: amend. Acts 1948, ch. 47, § 3; 1982, ch. 360, § 62, effective July 15, 1982.

NOTES TO DECISIONS

1.Order Calling Election.

The form in which the question should or may be printed on the ballot is given in this section, but it is not necessary that it should be stated in the order calling the election. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

It is not necessary for the order calling the election to set forth the form of the question to be submitted to the voters. Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

In order calling election it was unnecessary to state the question to be submitted to vote, and order stating that a “local option election” was directed to be held in a designated precinct was sufficiently clear and unambiguous. Robinson v. Spradlin, 303 Ky. 451 , 197 S.W.2d 919, 1946 Ky. LEXIS 866 ( Ky. 1946 ).

2.Ballot.

“Prohibition” is not a misleading term, and it will not be presumed that the voters did not understand its meaning. Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

3.— Sufficiency of Question.

Since the Constitution does not prescribe the form in which the issue is to be stated on the ballot, it is sufficient when it conforms to the statute, since that form is sufficiently clear. Laswell v. Cooper, 266 Ky. 524 , 99 S.W.2d 709, 1936 Ky. LEXIS 701 ( Ky. 1936 ); Howard v. Farmer, 268 Ky. 303 , 104 S.W.2d 957, 1937 Ky. LEXIS 440 ( Ky. 1937 ).

Question on ballot, “Are you in favor of adopting the local option law in Green County?” was proper where intoxicating liquor was sold in the county at the time of the election. Ennis v. Adkins, 274 Ky. 121 , 118 S.W.2d 175, 1938 Ky. LEXIS 234 ( Ky. 1938 ) (decision prior to the 1948 amendment).

Statement of question to be voted on in language prescribed by this section, on ballots and in order calling election, was proper although petition for election and order calling election were made prior to time Revised Statutes became effective, the only difference between this section and previous law being in the use of “prohibition” instead of “local option.” Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

Provision in this section that in any election the form of the proposition “shall” be “Are you in favor of the sale of alcoholic beverages in (name of county or city)?”, is directory, and local option election is not invalid where question appearing upon the ballot was: “Are you in favor of adopting prohibition in Howard Voting Precinct, No. 50, which is in Bell County, Kentucky?”. Mayne v. Helton, 252 S.W.2d 664, 1952 Ky. LEXIS 1006 ( Ky. 1952 ).

Cited:

Widick v. Pursifull, 299 Ky. 773 , 187 S.W.2d 447, 1945 Ky. LEXIS 791 (1945); Herron v. McMurray, 303 Ky. 190 , 197 S.W.2d 55, 1946 Ky. LEXIS 803 ( Ky. 1946 ); Hughes v. Ramey, 305 Ky. 128 , 203 S.W.2d 63, 1947 Ky. LEXIS 797 ( Ky. 1947 ).

Opinions of Attorney General.

In a special election requiring a “yes” or “no” vote the “yes” will appear first or immediately above the space for the “no” vote. OAG 69-368 .

A vote on the proposition of selling alcoholic beverages may not be limited to sale in package stores and restaurants, excluding bars or places where only alcoholic beverages are served. OAG 78-109 .

242.060. General election laws apply to elections — Cost.

  1. The general election laws, including penalties for violations, shall apply to the election, except where these laws are inconsistent with this chapter.
  2. The cost of the election shall be borne by the county.

History. 2554c-7, 2554c-8.

NOTES TO DECISIONS

1.Statement of Contributions and Expenditures.

Election was not invalid because of failure of campaign managers to file statements of contributions and expenditures under KRS 123.080 (repealed). Wilson v. Lawrence, 268 Ky. 179 , 103 S.W.2d 955, 1937 Ky. LEXIS 427 ( Ky. 1937 ); Feld v. Prewitt, 274 Ky. 306 , 118 S.W.2d 700, 1938 Ky. LEXIS 264 ( Ky. 1938 ).

2.Costs.

The cost of a local option election is a necessary governmental expense and it is the duty of the county to provide the necessary funds to meet that expense. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

Although payment for a local option election might exceed expenditures allowed under Ky. Const., § 157, this section would permit the expenditure and an election legally called and held in all respects would not be invalid and void under § 157. Neff v. Moberly, 296 Ky. 319 , 177 S.W.2d 7, 1943 Ky. LEXIS 158 ( Ky. 1943 ), overruled, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

Cited:

Kelly v. Gruelle, 298 Ky. 450 , 183 S.W.2d 39, 1944 Ky. LEXIS 924 ( Ky. 1944 ); Cooper v. Commonwealth, 300 Ky. 770 , 189 S.W.2d 949, 1945 Ky. LEXIS 612 ( Ky. 1945 ); Peel v. Boyle County, 301 Ky. 655 , 191 S.W.2d 923, 1945 Ky. LEXIS 744 ( Ky. 1945 ).

Opinions of Attorney General.

Since under this section general election laws are applicable to local option election, a registered voter of the age of 18 at the time the local option election is held is entitled to vote despite the fact that he is prohibited by law from purchasing alcoholic beverages. OAG 65-662 .

The polls, at any election held within the period of time controlled by the federal uniform time act of 1966, must be opened and closed on daylight saving time in the applicable time belt regardless of the requirement in KRS 118.040 (repealed) that the polls are to be opened and closed on standard time. OAG 69-413 .

The county must pay the cost of all local option elections even though they may be confined to a particular city. OAG 71-201 ; 71-313.

Where, in a local option election, part of the residents of each precinct were not eligible to vote, the two precincts could not be merged. OAG 71-201 .

Subsection (1) of KRS 424.290 does not repeal by implication the provisions of this section. OAG 71-313 .

Research References and Practice Aids

Cross-References.

Regular elections, conduct of, KRS ch. 118.

242.070. Committee favoring or opposing local option proposition to certify challengers — Challengers entitled to same privileges and subject to same duties and penalties as challengers in other elections — Enforceability in Circuit Court and Court of Appeals.

  1. Not more than twenty (20) days prior to an election held under this chapter, any group of citizens that in good faith favors or opposes the proposition to be submitted may file with the chair of the county board of elections a petition asking that it be recognized as the committee entitled to certify challengers. If more than one (1) group claims the right to certify challengers, the county board of elections shall promptly decide and publicly announce which committee is entitled to certify challengers. That decision shall not be final, but any aggrieved party may appeal to the county judge/executive, and upon hearing the county judge/executive shall determine which group shall be recognized.
    1. Each committee is entitled to have up to two (2) challengers at each precinct during the holding of the election. Any group of citizens of the county may recommend to a committee a list of persons whom they desire to have appointed as challengers in each precinct in the county. If more than two (2) such lists are furnished, the committee, in making appointments of challengers, shall alternate between the several lists so furnished so as to give to each list an equal amount or proportion of the appointments. The committee shall not appoint more than one (1) challenger for any precinct from any one (1) list when multiple lists have been submitted. Any lists of challengers shall be presented to the committee within twenty (20) days after the local option petition is filed with the county clerk, and the committee or its chair shall make and certify the appointments and present a list of certified challengers to the county clerk at least twenty (20) days before the date on which the local option election will be held. (2) (a) Each committee is entitled to have up to two (2) challengers at each precinct during the holding of the election. Any group of citizens of the county may recommend to a committee a list of persons whom they desire to have appointed as challengers in each precinct in the county. If more than two (2) such lists are furnished, the committee, in making appointments of challengers, shall alternate between the several lists so furnished so as to give to each list an equal amount or proportion of the appointments. The committee shall not appoint more than one (1) challenger for any precinct from any one (1) list when multiple lists have been submitted. Any lists of challengers shall be presented to the committee within twenty (20) days after the local option petition is filed with the county clerk, and the committee or its chair shall make and certify the appointments and present a list of certified challengers to the county clerk at least twenty (20) days before the date on which the local option election will be held.
    2. The appointment of challengers shall be certified in all respects as challengers at regular elections, except as otherwise provided in this section. The challengers shall be registered voters of the county in which the election is held and shall be subject to the same penalties and possess the same rights and privileges as challengers at regular elections, except that the challengers of one (1) committee may not challenge a person because the person offered to vote in a way favorable to the other committee.
    3. The provisions of this section shall be enforceable against the chair of each committee by a mandatory summary proceeding instituted in the Circuit Court. The order of the court may be reviewed by the Court of Appeals as provided for the granting or dissolving of temporary injunctions.
  2. The challengers shall perform their duties in the same manner and be subject to the same privileges as other challengers at an election including those provided in KRS 117.187 and 117.316 to 117.318 .

History. 2554c-9: amend. Acts 1976 (Ex. Sess.), ch. 14, § 219, effective January 2, 1978; 1978, ch. 384, § 377, effective June 17, 1978; 1982, ch. 360, § 63, effective July 15, 1982; 1990, ch. 48, § 88, effective July 13, 1990; repealed and reenact., Acts 2013, ch. 121, § 8, effective June 25, 2013.

NOTES TO DECISIONS

1.Validity of Election.

The validity of a local option election does not hinge upon compliance with KRS 123.080 (repealed) by a self-appointed campaign committee, even though such committee be recognized by the election commissioners as the committee entitled to perform the duties enumerated in this section. Feld v. Prewitt, 274 Ky. 306 , 118 S.W.2d 700, 1938 Ky. LEXIS 264 ( Ky. 1938 ).

Cited:

Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ); Peel v. Boyle County, 301 Ky. 655 , 191 S.W.2d 923, 1945 Ky. LEXIS 744 ( Ky. 1945 ).

Opinions of Attorney General.

Challengers cannot be appointed to serve at a special school tax election. OAG 69-43 .

242.080. Nomination of officers and issuance of certificates designating challengers, witnesses and guards. [Repealed.]

Compiler’s Notes.

This section (2554c-10: amend. Acts 1982, ch. 360, § 64, effective July 15, 1982; 1990, ch. 48, § 89, effective July 13, 1990) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

242.090. Regular precinct officers to serve as local option precinct officers — Precinct election officers to be appointed under KRS 117.045 in years without scheduled elections or when local option election held before March 20.

The precinct election officers appointed for a primary and a regular election under KRS 117.045 shall serve as precinct election officers in local option elections. If a local option election is ordered to be held in a year in which there are no elections scheduled or prior to March 20 in a year in which elections are scheduled, precinct election officers shall be appointed in the manner provided under KRS 117.045 for special elections ordered to be held in a year in which there are no elections scheduled.

History. 2554c-11: amend. Acts 1990, ch. 48, § 90, effective July 13, 1990; repealed and reenact., Acts 2013, ch. 121, § 9, effective June 25, 2013.

NOTES TO DECISIONS

1.Election Officers.

That one of county election commissioners was also a member of committee favoring the adoption of local option law did not disqualify him from participating in the selection of election officers. Feld v. Prewitt, 274 Ky. 306 , 118 S.W.2d 700, 1938 Ky. LEXIS 264 ( Ky. 1938 ).

2.— Premature Appointment.

This section is directory and not mandatory and a three day premature appointment of officers to conduct the election does not void the election. Kelly v. Gruelle, 298 Ky. 450 , 183 S.W.2d 39, 1944 Ky. LEXIS 924 ( Ky. 1944 ).

Since the provision of this section as to time of appointing election officers is directory and not mandatory the appointment of officers 19 days before election would not invalidate the election, in the absence of a showing of fraud or prejudice. Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ).

3.— Delayed Appointment.

Where county board of election commissioners made bona fide effort to appoint election officers within time prescribed by this section, but were unable to obtain persons willing to serve from list nominated by “wet” committee, and so were required to call for a new list, with result that officers were not appointed until five (5) days before election, the delay in appointing officers did not void the election in the absence of a showing of fraud or undue advantage in favor of successful side. Peel v. Boyle County, 301 Ky. 655 , 191 S.W.2d 923, 1945 Ky. LEXIS 744 ( Ky. 1945 ).

4.— Unqualified Officer.

Even if service of unqualified election officer constituted grounds for declaring a local option election void, the side which was responsible for the selection of the unqualified officer could not take advantage of the error. Bauer v. Wakefield, 299 Ky. 42 , 184 S.W.2d 222, 1944 Ky. LEXIS 1017 ( Ky. 1944 ).

The mere fact that one of election officers in a local option election was not qualified because he was not a resident of the precinct was not grounds for declaring the election void, where there was no evidence that his service had any effect on the result of the election and no fraud or prejudice was shown. Bauer v. Wakefield, 299 Ky. 42 , 184 S.W.2d 222, 1944 Ky. LEXIS 1017 ( Ky. 1944 ).

5.— Unequal Division.

An election is not void, in the absence of fraud, because the election commissioners did not make equal division of election officers between proponents and opponents of local option, when opponents failed to file the list provided for in KRS 242.080 . Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ).

Cited:

Mayne v. Helton, 252 S.W.2d 664, 1952 Ky. LEXIS 1006 ( Ky. 1952 ).

242.100. Traffic in alcoholic beverage on election day local option election held prohibited. [Repealed.]

Compiler’s Notes.

This section (2554c-14: amend. Acts 1994, ch. 252, § 1, effective July 15, 1994; 1998, ch. 121, § 4, effective July 15, 1998) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

242.110. Certification of results.

The result of the election shall be certified by the county board of elections. The certificate of the result shall be immediately filed with the county clerk and the county judge/executive shall have the certificate entered on the order book. The entry of the certificate, or an attested copy thereof, shall be prima facie evidence of the result of the election in actions under this chapter.

History. 2554c-12: amend. Acts 1978, ch. 384, § 378, effective June 17, 1978; 1990, ch. 48, § 91, effective July 13, 1990.

NOTES TO DECISIONS

1.Failure to Enter.

Certificate of election should be entered and signed promptly to avoid confusion, however failure to enter it at next regular term could not affect validity of election. Goodwin v. Anderson, 269 Ky. 11 , 106 S.W.2d 152, 1937 Ky. LEXIS 566 ( Ky. 1937 ), overruled, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

242.120. Recounts and contests — Creation of recanvass procedures for local option elections — Recanvass reports.

  1. Any qualified voter may demand a recount of the votes or contest the election in the same manner as is provided for the recount of votes or contest of regular elections of county officers by KRS 120.155 to 120.185 . The members of the county board of election commissioners shall be named as contestees and summons shall be served upon them. Any qualified voter may intervene as contestee by filing a petition to be made a party in the action.
    1. The canvass and returns provided for in KRS 242.110 shall constitute the official returns for the local option election, unless before 4 p.m. on the seventh day following the local option election, the county clerk or county board of elections takes notice of a discrepancy in the tally of votes cast in any precinct or number of precincts within the territory voting in the local option election, or a committee favoring or opposing the proposition makes a written request to the county board of elections to check and recanvass the ballots cast, including absentee ballots, of any precinct or any number of precincts involving the local option election. After this time period has elapsed and notice is taken, the county board of elections shall assemble at 9 a.m. on the second day following the filing deadline to request a recanvass, and not sooner, and recheck and recanvass all voting equipment and make a proper return thereof to the county clerk, and the canvass and return shall become the official returns for the election. (2) (a) The canvass and returns provided for in KRS 242.110 shall constitute the official returns for the local option election, unless before 4 p.m. on the seventh day following the local option election, the county clerk or county board of elections takes notice of a discrepancy in the tally of votes cast in any precinct or number of precincts within the territory voting in the local option election, or a committee favoring or opposing the proposition makes a written request to the county board of elections to check and recanvass the ballots cast, including absentee ballots, of any precinct or any number of precincts involving the local option election. After this time period has elapsed and notice is taken, the county board of elections shall assemble at 9 a.m. on the second day following the filing deadline to request a recanvass, and not sooner, and recheck and recanvass all voting equipment and make a proper return thereof to the county clerk, and the canvass and return shall become the official returns for the election.
    2. In making the recanvass, the county board of elections shall make a record of the unique designation or number of the seal upon the voting equipment and, without unlocking the voting equipment against voting, recanvass the votes cast. If, after a recanvass, it is found that the original canvass of the returns has been correctly made from the voting equipment and that there still remains a discrepancy unaccounted for, this discrepancy shall be noted. If, upon recanvass, it appears that the original canvass of the returns by the election officers was incorrect, the returns and all papers being prepared by the county board of elections shall be corrected accordingly.
    3. The county board of elections shall, immediately upon receipt of a request for a recanvass, notify the committees favoring or opposing the proposition of the time and place of the recanvass. At the recanvass, the committees favoring or opposing the proposition may be present. The county board of elections shall authorize representatives of the news media to observe the recanvass of the votes cast at the polls in each precinct. Nothing in this section shall prohibit an individual from requesting, in addition to a recanvass, a recount as authorized by KRS Chapter 120.
  2. The State Board of Elections shall prescribe through administrative regulations promulgated under KRS Chapter 13A, a form to be used by county boards of election to report all recanvassed votes. The form shall include the following information:
    1. The name of the county in which the recanvass was conducted;
    2. The date of the report;
    3. The date of the local option election;
    4. The proposition for which the recanvass was conducted;
    5. The names of the leaders of the committees favoring or opposing the proposition being recanvassed; and
    6. The votes cast at the polls, absentee votes, and vote totals for each “yes” or “no” vote.

      The report shall be signed by each member of the county board of elections.

  3. The county board of elections shall file its recanvass report as prescribed in administrative regulations promulgated by the State Board of Elections in accordance with KRS Chapter 13A.
  4. The State Board of Elections shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish the proper procedures for conducting a local option election recanvass for each type of voting system approved by the State Board of Elections and in use in Kentucky.

History. 2554c-13: amend. Acts 1980, ch. 188, § 226, effective July 15, 1980; 1982, ch. 360, § 65, effective July 15, 1982; 2013, ch. 121, § 10, effective June 25, 2013; 2021 ch. 197, § 70, effective June 29, 2021.

NOTES TO DECISIONS

1.Election Contest.

In suit to restrain certification of returns or entry of order putting local option law into effect based on alleged insufficiency of steps preliminary to the election, court cannot inquire into latent defects in steps preliminary to the calling of the election. Hessler v. Garner, 266 Ky. 507 , 99 S.W.2d 461, 1936 Ky. LEXIS 693 ( Ky. 1936 ).

Where it is sought after a local option election to destroy the effect of petitions therefor, fair on their faces, through attacking the validity of the signatures thereon, the statutory method of contest is exclusive. Neal v. Manning, 266 Ky. 683 , 99 S.W.2d 766, 1936 Ky. LEXIS 722 ( Ky. 1936 ).

An elector in contesting local option election acts only for himself. Stamper v. Hall, 270 Ky. 164 , 109 S.W.2d 386, 1937 Ky. LEXIS 35 ( Ky. 1937 ).

This section authorizes intervention only by one desiring to sustain the election, and does not authorize intervention by a contestant. Stamper v. Hall, 270 Ky. 164 , 109 S.W.2d 386, 1937 Ky. LEXIS 35 ( Ky. 1937 ).

Where some voters in a local option election were deprived of right of suffrage by reason that polls were not opened in four precincts, election would not be set aside where result would not have been changed even if all votes in such precincts had been cast for loser. Hardigree v. White, 275 Ky. 364 , 121 S.W.2d 919, 1938 Ky. LEXIS 435 ( Ky. 1938 ).

Anyone interested in the result of a local option election may attack it, upon a ground rendering it wholly invalid, by an independent proceeding in equity, and when such attack is made this section does not apply. Ray v. Spiers, 281 Ky. 549 , 136 S.W.2d 750, 1940 Ky. LEXIS 65 ( Ky. 1940 ).

Person who is not a qualified voter in the territory affected cannot file a contest under this section. Ray v. Spiers, 281 Ky. 549 , 136 S.W.2d 750, 1940 Ky. LEXIS 65 ( Ky. 1940 ).

2.— Necessary Parties.

Officers or others whose acts may have affected the validity of the election are not necessary parties. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

Although members of county board of election commissioners are necessary parties in a local option election contest suit, they are not interested parties within the meaning of KRS 454.140 . Adams v. Letcher County, 299 Ky. 171 , 184 S.W.2d 801, 1944 Ky. LEXIS 1039 ( Ky. 1944 ).

The fact that no voter intervened as contestee in local option election contest, and that county board of election commissioners proceeded to vigorously defend the contest and hasten it to an early decision, did not constitute grounds for complaint by losing side that real parties in interest were not represented. Peel v. Boyle County, 301 Ky. 655 , 191 S.W.2d 923, 1945 Ky. LEXIS 744 ( Ky. 1945 ).

3.— Fraud.

Proponents of public question are not entitled to have election in certain precincts declared void because of frauds committed by their own supporters and representatives. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

4.— Change of Votes.

Where, in local option election contest suit, six illegal voters testified they had voted in favor of prohibition, but before trial they executed written affidavits stating that they had voted against prohibition, and there was no evidence other than the affidavits to indicate that they had voted against prohibition, it was error to deduct their votes from the side opposed to prohibition. Adams v. Letcher County, 299 Ky. 171 , 184 S.W.2d 801, 1944 Ky. LEXIS 1039 ( Ky. 1944 ).

5.— Suspension of Election.

Order of circuit court, suspending operation of prohibition pending appeal from judgment in contest suit, was invalid insofar as it conditioned the suspension upon the appellants not pleading or relying upon the order of suspension in any prosecution brought against them for violating the local option law during the period of suspension. Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

Enforcement of prohibition is not automatically suspended by the filing of a suit to contest the local option election at which the majority of the voters voted in favor of prohibition. Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

6.Injunction.

An action to enjoin certification of the results of the election or entry of the order putting the local option law into effect does not lie unless the election is void. Hessler v. Garner, 266 Ky. 507 , 99 S.W.2d 461, 1936 Ky. LEXIS 693 ( Ky. 1936 ); Neal v. Manning, 266 Ky. 683 , 99 S.W.2d 766, 1936 Ky. LEXIS 722 ( Ky. 1936 ).

7.Summons.

In an action to contest a local option election, in which the members of the county board of election commissioners were required to be made parties defendant, service of summons by the sheriff, on the two (2) appointive members of the board, constituted valid service as to them notwithstanding that sheriff was ex officio member of the board; and a written acceptance of service by the sheriff, on a summons directed to the coroner and delivered to the sheriff, constituted a valid entry of appearance by the sheriff, even though acceptance did not comply with requirements of statutes as to acknowledgment of service. Adams v. Letcher County, 299 Ky. 171 , 184 S.W.2d 801, 1944 Ky. LEXIS 1039 ( Ky. 1944 ).

8.Pleadings.

Plaintiff’s conclusory allegation that the number of illegal subscriptions to petition calling for the election were sufficient to reduce the number of signers below 25 percent of the number of votes cast in the territory at the last preceding general election is insufficient to warrant injunction on ground that election was void, although the election might be voidable by proper contest. Neal v. Manning, 266 Ky. 683 , 99 S.W.2d 766, 1936 Ky. LEXIS 722 ( Ky. 1936 ).

In absence of pleading or proof that election was not properly advertised, or that attempt was made to exclude voters from election, the mere fact that polls were not opened in four precincts would not invalidate election. Hardigree v. White, 275 Ky. 364 , 121 S.W.2d 919, 1938 Ky. LEXIS 435 ( Ky. 1938 ).

A general allegation that voters in certain precincts were prevented from casting their ballots, not setting forth the names of the voters involved, is not sufficient. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

Where it is sought to have votes eliminated on the ground that they were illegal because they were cast openly in the presence of other persons, the names of the persons casting the illegal votes must be alleged. This is true even though the allegation is that all of the votes cast in the precinct were illegal. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

The negligent omission or wilful failure of the board of election commissioners to answer within the prescribed time a petition contesting a local option election will not justify a default judgment. In such case the court may reasonably extend the time for answering, and if no answer is filed the court should treat the petition as controverted. Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

9.Stipulations.

Where parties to a local option election contest stipulated to take no further proceedings until a certain date, both parties believing that liquor could not be sold after that date, the stipulation would not be set aside for mutual mistake because of a subsequent ruling by the alcoholic beverage control board, allowing liquor licenses to be issued after the stipulated date. Jett v. Holland, 276 Ky. 718 , 124 S.W.2d 1055, 1939 Ky. LEXIS 572 ( Ky. 1939 ).

Cited:

Wilson v. Lawrence, 268 Ky. 179 , 103 S.W.2d 955, 1937 Ky. LEXIS 427 ( Ky. 1937 ); Campbell v. Mason, 269 Ky. 128 , 106 S.W.2d 100, 1937 Ky. LEXIS 555 ( Ky. 1937 ); Murphy v. Cundiff, 269 Ky. 645 , 108 S.W.2d 644, 1937 Ky. LEXIS 651 (Ky. 1937); Barker v. Blankenship, 271 Ky. 213 , 111 S.W.2d 592, 1937 Ky. LEXIS 204 (Ky. 1937); Norton v. Letton, 271 Ky. 353 , 111 S.W.2d 1053, 1937 Ky. LEXIS 242 (Ky. 1937); Bennett v. Day, 271 Ky. 676 , 113 S.W.2d 38, 1938 Ky. LEXIS 43 ( Ky. 1938 ); Cunningham v. Humphreys, 273 Ky. 134 , 115 S.W.2d 1067, 1938 Ky. LEXIS 601 ( Ky. 1938 ); Adams v. Helton, 296 Ky. 9 , 175 S.W.2d 1012, 1943 Ky. LEXIS 761 (1943); Adams v. Helton, 296 Ky. 446 , 177 S.W.2d 572, 1944 Ky. LEXIS 563 ( Ky. 1944 ); Kobs v. Ross, 298 Ky. 267 , 182 S.W.2d 340, 1944 Ky. LEXIS 860 ( Ky. 1944 ); Kelly v. Gruelle, 298 Ky. 450 , 183 S.W.2d 39, 1944 Ky. LEXIS 924 (Ky. 1944); Cantrell v. Adams, 298 Ky. 845 , 183 S.W.2d 492, 1944 Ky. LEXIS 935 (Ky. 1944); Franklin v. Helton, 298 Ky. 580 , 183 S.W.2d 532, 1944 Ky. LEXIS 945 (Ky. 1944); Herron v. McMurray, 303 Ky. 190 , 197 S.W.2d 55, 1946 Ky. LEXIS 803 ( Ky. 1946 ); Widick v. Ralston, 303 Ky. 373 , 197 S.W.2d 261, 1946 Ky. LEXIS 880 ( Ky. 1946 ); Buren v. Brown, 310 Ky. 328 , 220 S.W.2d 826, 1949 Ky. LEXIS 911 ( Ky. 1949 ); Miracle v. Robbins, 313 Ky. 390 , 231 S.W.2d 18, 1950 Ky. LEXIS 866 ( Ky. 1950 ); Mayne v. Helton, 252 S.W.2d 664, 1952 Ky. LEXIS 1006 ( Ky. 1952 ); Hodges v. Hodges, 314 S.W.2d 208, 1958 Ky. LEXIS 292 ( Ky. 1958 ); McDonald v. Whallen, 415 S.W.2d 840, 1967 Ky. LEXIS 335 ( Ky. 1967 ).

242.123. Local option election for limited sale of alcoholic beverages in precinct containing golf course — Petition language.

    1. To promote economic development and tourism in any dry or moist county or city, a local option election for the limited sale of alcoholic beverages may be held in any precinct containing a nine (9) or an eighteen (18) hole golf course that meets United States Golf Association criteria as a regulation golf course. (1) (a) To promote economic development and tourism in any dry or moist county or city, a local option election for the limited sale of alcoholic beverages may be held in any precinct containing a nine (9) or an eighteen (18) hole golf course that meets United States Golf Association criteria as a regulation golf course.
    2. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election under KRS 242.123 on the following question: “‘Are you in favor of the sale of alcoholic beverages by the drink at a golf course or courses in the (name of precinct)?’”.
  1. A local option election for the limited sale of alcoholic beverages authorized by subsection (1) of this section shall be held in accordance with KRS 242.020 to 242.040 , and 242.060 to 242.120 . The form of the proposition to be voted upon shall be: Are you in favor of the sale of alcoholic beverages by the drink at a golf course or courses in the (name of precinct)?”.

HISTORY: Enact. Acts 2000, ch. 411, § 1, effective July 14, 2000; 2010, ch. 24, § 558, effective July 15, 2010; 2013, ch. 121, § 11, effective June 25, 2013; 2014, ch. 22, § 2, effective July 15, 2014; 2017 ch. 62, § 21, effective June 29, 2017.

242.1232. Agreement of golf course to comply with the provisions of KRS Chapter 344. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 2000, ch. 411, § 2, effective July 14, 2000; 2010, ch. 24, § 559, effective July 15, 2010) was repealed, reenacted, and amended as KRS 243.038 , effective June 25, 2013.

242.1238. Limited sale precinct election for sale of alcoholic beverages at horse racetrack.

  1. Other provisions of the Kentucky Revised Statutes notwithstanding, a limited sale precinct election may be held in any precinct containing a horse racetrack. The election shall be conducted in the same manner as provided for in KRS 242.1292 . Upon approval of the proposition, a Nonquota type 1 retail drink license may be issued in accordance with KRS 243.265 . Nothing in this section shall be construed as authorizing the issuance of any alcoholic beverage licenses other than for the premises of a horse racetrack pursuant to KRS 243.260 .
  2. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages in (official name of the horse racetrack located in the designated precinct)?’”.

History. Enact. Acts 2013, ch. 121, § 4, effective June 25, 2013; 2014, ch. 92, § 290, effective January 1, 2015.

242.1239. Local option election for sale of alcoholic beverages by a microbrewery in the territory where the microbrewery is located or proposed.

  1. In order to promote economic development and tourism, a dry or moist city, county, urban-county government, charter county, consolidated local government, or unified local government may hold a local option election on the sale of alcoholic beverages by a microbrewery in the territory where the microbrewery is located or proposed.
  2. A petition seeking a local option election under this subsection shall state “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages at a microbrewery located in (name of precinct)?’”
  3. The local option election shall be held in accordance with KRS 242.020 to 242.040 , and 242.060 to 242.120 . The form of the proposition to be voted upon shall be: “Are you in favor of the sale of alcoholic beverages at a microbrewery located in (name of precinct)?” If the majority of the votes in an election held pursuant to this subsection are “Yes,” the precinct shall become moist in the manner specified in KRS 242.200 , and a nonquota type 4 retail malt beverage drink license and a nonquota retail malt beverage package license may be issued to a microbrewer located within the precinct.

HISTORY: 2020 ch. 102, § 8, effective July 15, 2020.

242.124. Limited sale precinct election for sale of wine at an existing or proposed small farm winery located in a dry territory.

  1. If a licensed small farm winery is located in a dry or moist territory, the small farm winery shall remain dry or moist unless sales at the small farm winery are approved through a local option election held in accordance with the provisions of this section.
  2. A local option election for the limited sale of alcoholic beverages may be held in a dry or moist city or county precinct where a small farm winery is located.
  3. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages at a small farm winery or wineries located in (name of precinct)?’”.
  4. A local option election for the limited sale of alcoholic beverages authorized by subsection (2) of this section shall be held in accordance with KRS 242.020 to 242.040 , and 242.060 to 242.120 . The form of the proposition to be voted upon shall be: “Are you in favor of the sale of alcoholic beverages at a small farm winery or wineries located in (name of precinct)?”.

HISTORY: Enact. Acts 2013, ch. 121, § 5, effective June 25, 2013; 2017 ch. 62, § 22, effective June 29, 2017.

242.1241. Limited sale precinct election for sale of alcoholic beverages on Sunday at licensed small farm winery in wet territory.

    1. If the sale of alcoholic beverages is permitted at a licensed small farm winery located in a wet or moist territory, a limited sale precinct election may be held to authorize the sale of alcoholic beverages on Sunday at the small farm winery. (1) (a) If the sale of alcoholic beverages is permitted at a licensed small farm winery located in a wet or moist territory, a limited sale precinct election may be held to authorize the sale of alcoholic beverages on Sunday at the small farm winery.
    2. A local option election authorized under this subsection shall be held in accordance with KRS 242.020 to 242.040 , and 242.060 to 242.120 .
    3. The petition seeking a limited sale precinct election under this section shall state, “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages on Sunday at a small farm winery located in (name of precinct)?’”
    4. If the precinct contains a licensed small farm winery, the proposition to be voted on in the limited sale precinct election shall state, “Are you in favor of the sale of alcoholic beverages on Sunday at a licensed small farm winery or wineries located in (name of precinct)?”
  1. A limited sale precinct election to authorize Sunday sales at a small farm winery may be held less than three (3) years after a local option election held in accordance with KRS 242.124 to authorize the sale of alcoholic beverages at that small farm winery.

History. Enact. Acts 2014, ch. 115, § 2, effective July 15, 2014; 2017 ch. 62, § 23, effective June 29, 2017; 2020 ch. 102, § 7, effective July 15, 2020.

242.1242. Local option election for limited sale of alcoholic beverages at qualified historic sites — Petition language.

    1. To promote economic  development and tourism in any dry or moist county, urban-county government, charter county, consolidated  local government, unified local government, or city, in which a qualified historic site  is located, a local option election for the limited sales of alcoholic  beverages by the drink may be held in the precinct of the county, urban-county government, charter county, consolidated  local government, or unified local government where  the qualified historic site is located, notwithstanding any other  provision of the Kentucky Revised Statutes. (1) (a) To promote economic  development and tourism in any dry or moist county, urban-county government, charter county, consolidated  local government, unified local government, or city, in which a qualified historic site  is located, a local option election for the limited sales of alcoholic  beverages by the drink may be held in the precinct of the county, urban-county government, charter county, consolidated  local government, or unified local government where  the qualified historic site is located, notwithstanding any other  provision of the Kentucky Revised Statutes.
    2. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election under this section on the following question: ‘Are you in favor of the sale of alcoholic beverages by the drink at qualified historic sites in (name of precinct)?’”.
  1. A local option election for the limited sale of alcoholic beverages by the drink held under subsection (1) of this section shall be conducted in the same manner as specified in KRS 242.020 to 242.040 ; and 242.060 to 242.120 . The form of the proposition to be voted upon shall be “Are you in favor of the sale of alcoholic beverages by the drink at qualified historic sites in the (name of precinct)?”.

HISTORY: Enact. Acts 2007, ch. 99, § 2, effective June 26, 2007; 2010, ch. 24, § 560, effective July 15, 2010; 2013, ch. 121, § 13, effective June 25, 2013; 2017 ch. 62, § 24, effective June 29, 2017; 2017 ch. 190, § 3, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 62 and 190, which do not appear to be in conflict and have been codified together.

242.1243. Local option precinct election for limited sale of alcoholic beverages at qualified distillery — Petition language.

  1. To promote economic development and tourism in any dry or moist county or city in which a distillery is located, a local option election for the sale of alcoholic beverages may be held in a city or county precinct where the distillery is located, notwithstanding any other provision of the Kentucky Revised Statutes.
  2. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages at distilleries located in (name of precinct)?’”.
  3. When a majority of the votes cast in an election held under subsections (1) and (2) of this section are in favor of establishing moist territory, the premises of the distilleries located in that precinct shall become moist in the manner specified in KRS 242.200 .

HISTORY: 2016 ch. 80, § 26, effective July 15, 2016; 2020 ch. 102, § 1, effective July 15, 2020.

242.1244. Local option for limited sale of alcoholic beverages purchased in conjunction with a meal — Separate local option elections to be held for restaurants seating fifty persons and those seating one hundred persons.

    1. In order to promote economic development and tourism, a dry or moist city, county, urban-county government, charter county, consolidated local government, or unified local government may hold a local option election on the sale of alcoholic beverages by the drink at restaurants that seat a minimum of fifty (50) persons and derive a minimum of seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food if alcoholic beverages are purchased in conjunction with a meal. A petition seeking a local option election under this subsection shall state “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages by the drink at restaurants with a seating capacity of at least fifty (50) persons and which derive at least seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food if the alcoholic beverage is purchased in conjunction with a meal?’”. (1) (a) In order to promote economic development and tourism, a dry or moist city, county, urban-county government, charter county, consolidated local government, or unified local government may hold a local option election on the sale of alcoholic beverages by the drink at restaurants that seat a minimum of fifty (50) persons and derive a minimum of seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food if alcoholic beverages are purchased in conjunction with a meal. A petition seeking a local option election under this subsection shall state “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages by the drink at restaurants with a seating capacity of at least fifty (50) persons and which derive at least seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food if the alcoholic beverage is purchased in conjunction with a meal?’”.
    2. The local option election shall be held in accordance with KRS 242.020 to 242.040 , and 242.060 to 242.120 . The form of the proposition to be voted upon shall be: Are you in favor of the sale of alcoholic beverages by the drink in (name of city or county) at restaurants with a seating capacity of at least fifty (50) persons and which derive at least seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food if the alcoholic beverage is purchased in conjunction with a meal?”. If the majority of the votes in an election held pursuant to this subsection are “Yes,” licenses may be issued to qualified restaurants.
    1. In order to promote economic development and tourism, a dry or moist city, county, urban-county government, charter county, consolidated local government, or unified local government may hold a local option election on the sale of alcoholic beverages by the drink at restaurants and dining facilities which seat a minimum of one hundred (100) persons and derive a minimum of seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food. (2) (a) In order to promote economic development and tourism, a dry or moist city, county, urban-county government, charter county, consolidated local government, or unified local government may hold a local option election on the sale of alcoholic beverages by the drink at restaurants and dining facilities which seat a minimum of one hundred (100) persons and derive a minimum of seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food.
    2. A petition seeking a local option election under this subsection shall state “We the undersigned registered voters hereby petition for an election on the following question: ‘Are you in favor of the sale of alcoholic beverages by the drink in (name of city or county) at restaurants and dining facilities with a seating capacity of at least one hundred (100) persons and which derive at least seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food?’”.
    3. The local option election shall be held in accordance with KRS 242.020 to 242.040 , and 242.060 to 242.120 . The form of the proposition to be voted upon shall be: Are you in favor of the sale of alcoholic beverages by the drink in (name of city or county) at restaurants and dining facilities with a seating capacity of at least one hundred (100) persons and which derive at least seventy percent (70%) of their food and alcoholic beverage receipts from the sale of food?”. If the majority of the votes in an election held pursuant to this subsection are “Yes,” licenses may be issued to qualified restaurants and dining facilities.
  1. A local option proposition under subsection (1) of this section is a separate proposition than a local option proposition held under subsection (2) of this section, so that a separate limited local option election under each subsection is permitted. A territory may, by separate limited local option elections, simultaneously allow alcoholic beverage sales under subsections (1) and (2) of this section. A territory may also hold a limited local option election to allow alcoholic beverage sales under either subsection (1) or (2) of this section without authorizing alcoholic beverage sales under the other subsection.

History. Enact. Acts 2007, ch. 99, § 8, effective June 26, 2007; repealed and reenact., Acts 2013, ch. 121, § 14, effective June 25, 2013; 2017 ch. 62, § 25, effective June 29, 2017; 2017 ch. 190, § 4, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 62 and 190, which do not appear to be in conflict and have been codified together.

242.125. Separate vote to determine wet, moist, or dry status in cities — Right of city precincts to vote for separate dry status — Dual status as both wet and moist.

  1. A city shall not be deemed to be the “same territory” as that of a county within the meaning of KRS 242.030(3).A city shall have the right to determine its wet or dry status separate from a county’s wet or dry status.
  2. A dry or moist city may hold a local option election to take the sense of the city residents for establishing the city as a wet territory. If the majority of the votes are in favor of establishing the city as a wet territory, the whole city shall become wet territory by application of KRS 242.200 . A moist city that becomes wet under this section shall retain its moist status and have dual status as both wet and moist.
  3. Once a city becomes wet under this section separate from the county, a countywide local option election establishing the county as dry territory shall not cause the city to become dry territory.
  4. Once a city becomes wet under this section separate from a county, a countywide local option election establishing the county as moist territory shall cause the city to have dual status as both wet and moist.
  5. A wet city may hold a local option election to take the sense of the city residents for establishing the city as a dry or moist territory. If the majority of the votes are in favor of establishing the city as dry, the whole city shall become dry by application of KRS 242.190 . A wet city that becomes moist under this section shall retain its wet status and have dual status as both wet and moist.
  6. If a city votes to become wet territory, a precinct of the city may hold a later election in conformity with this chapter to take the sense of the city precinct residents for establishing the city precinct as a dry or moist territory. If the majority of the votes are in favor of establishing the city precinct as a dry or moist territory, the city precinct shall become dry or moist territory by application of KRS 242.190 .
  7. If a city precinct becomes dry or moist territory separate from a wet city, the city precinct may hold a later election in conformity with this chapter, to take the sense of the city precinct residents for reestablishing the city precinct as a wet territory. If the majority of the votes are in favor of reestablishing the city precinct as a wet territory, the city precinct shall become wet territory by application of KRS 242.200 .
  8. A dry or moist county containing a wet city may hold a local option election to take the sense of the county residents for establishing the county as a wet territory. If the majority of the votes are in favor of establishing the county as a wet territory, the whole county shall become wet territory by application of KRS 242.200 .
  9. A wet county containing a wet city by separate city election under this section may hold a local option election to take the sense of the county residents for establishing the county as a dry or moist territory. If the majority of the votes are in favor of establishing the county as a dry territory, the county territory outside the separately wet city limits shall become dry by application of KRS 242.190 . If the majority of the votes are in favor of establishing the county as moist territory, both the county and city shall retain their wet status and have dual status as both wet and moist.
  10. Residents of any city, including a separately wet city, are residents of the county, and shall therefore be permitted to sign any petitions for, and vote in, county local option elections.
  11. A petition seeking a wet local option election under this section shall state “We the undersigned registered voters hereby petition for an election on the following question: “Are you in favor of the sale of alcoholic beverages in (name of county, city, or precinct)?”.
  12. In any wet local option election under this section, the form of the proposition to be voted upon shall be: “Are you in favor of the sale of alcoholic beverages in (name of county, city, or city precinct)?”.
  13. The status of any moist territory approving limited alcoholic beverage sales through a previous election held under KRS 242.022 , 242.123 ,242.1238, 242.124 , 242.124 2, 242.1243 , 242.1244 , and 242.1292 , or any other limited local option election, shall not be affected by any outcome of any wet election held under this section. A territory’s wet or moist status may only be changed to dry status by a local option election in which the majority of the votes are not in favor of the original same wet or moist election proposition.

HISTORY: Enact. Acts 1948, ch. 47, § 1; 1966, ch. 255, § 213; 1982, ch. 360, § 66, effective July 15, 1982; repealed and reenact., Acts 2013, ch. 121, § 15, effective June 25, 2013; 2016 ch. 80, § 27, effective July 15, 2016; 2017 ch. 62, § 26, effective June 29, 2017.

NOTES TO DECISIONS

1.Constitutionality.

Title of act that created this section did not violate Ky. Const., § 51 for the subject of the act which was to change local option laws gave fair and adequate notice of the nature of the legislation. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ) (decided under prior law).

The classification of this section is reasonable in relation to the subject matter and as no discrimination has been made between members of the same class it is not special legislation in violation of Ky. Const., § 59, 60, or 61. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ); McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ) (decided under prior law).

Since Ky. Const., § 61 directs the legislature to provide means for ascertaining the sense of the people of any town, city, district, precinct or county as to whether or not spirituous, vinous or malt liquors should be sold, loaned or bartered therein this section did not violate said section. McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ) (decided under prior law).

Provision that provided that where a city is located in more than one county a part of the city as determined by its geographical location in a county could be designated a unit for the purpose of holding a local option election was enacted in violation of the terms of Ky. Const., § 61. Halcomb v. Faulkner, 238 S.W.2d 162, 1951 Ky. LEXIS 810 ( Ky. 1951 ) (decision prior to 1966 amendment).

2.Construction.

A city of the first four classes is a “territory” within the definition of KRS 242.010 and is an independent unit for the purpose of voting and determining its status on the prohibition question. Mastin v. Cornett, 373 S.W.2d 424, 1963 Ky. LEXIS 159 ( Ky. 1963 ) (decided under prior law).

The language of subsection (2), together with other language in this section, is substantially the same as the Cammack Act, stating that a territorial division may prohibit the sale of liquor even when the county in which it is situated permits the sale, and therefore this section does not repeal the Cammack Act. Howard v. Salyer, 695 S.W.2d 420, 1985 Ky. LEXIS 247 ( Ky. 1985 ) (decided under prior law).

3.County-wide Election.

For the purpose of calling a county-wide election cities are no more than subdivisions of the county and are integrated parts of the whole “territory to be affected.” Mastin v. Cornett, 373 S.W.2d 424, 1963 Ky. LEXIS 159 ( Ky. 1963 ) (decided under prior law).

4.Cities of First Four (4) Classes.

It was the intention of the Legislature to make every city of the first four classes a separate territorial unit for the purposes of determining its status on the prohibition question, and to give it complete home rule in this respect. Karloftis v. Mills, 312 Ky. 722 , 229 S.W.2d 477, 1950 Ky. LEXIS 746 ( Ky. 1950 ) (decided under prior law).

This section grants to cities of the first four (4) classes the right to hold independent local option elections regardless of the status or nature of the territory embracing such cities. Karloftis v. Mills, 312 Ky. 722 , 229 S.W.2d 477, 1950 Ky. LEXIS 746 ( Ky. 1950 ) (decided under prior law).

5.— Separate Voting.

When local option election in county which is entirely “dry” is ordered, separate votes by cities of first four classes are not authorized. Ball v. Stumbo, 405 S.W.2d 292, 1966 Ky. LEXIS 251 ( Ky. 1966 ) (decided under prior law).

6.— Precinct Within City.

Three-year moratorium on local option elections provided for in KRS 242.030(5) did not apply to a precinct located within a fourth class city which had voted to abolish prohibition; a precinct within a fourth class city is not the same territory as the city. Parrott v. Belcher, 884 S.W.2d 634, 1994 Ky. LEXIS 25 ( Ky. 1994 ) (decided under prior law).

Cited:

Stephens v. Stumbo, 239 S.W.2d 995, 1951 Ky. LEXIS 933 ( Ky. 1951 ).

Opinions of Attorney General.

Where both a county and a city within it are holding local option elections, residents of the city can only vote on the question involving the city. OAG 60-74 .

The results of a wet-dry election held in the county and in two (2) fourth-class cities within the county are determined by a separate tabulation of the votes in each of the respective territories. OAG 63-935 .

Wet-dry elections to be held in the county and in two (2) fourth-class cities within the county on the same day come within the stated exception of this section. OAG 63-935 .

In a county-wide local option election, cities of the first four (4) classes vote separately and are not controlled by the vote in the rest of the county. OAG 66-309 .

Where the entire county had previously been voted dry, a local option election could be held in and for a fourth-class city even though there was no election being held for the entire county. OAG 71-316 .

For a local option election in a city with three (3) precincts, an election would have to be held simultaneously in each of the three (3) districts. OAG 71-541 .

There is no authority for a city of the fifth class to hold a local option election, as any such election would have to be on a countywide basis. OAG 72-181 .

If an entire county is dry, no individual precinct may conduct its own local option election, nor may one precinct conduct such an election if the city is dry; however, if the county is wet or the city is wet, then a precinct may vote to go from wet to dry. OAG 72-591 .

If the referendum for alcoholic beverages in Williamsburg passes and if, at the time of the election, the entire city was dry territory, pursuant to former subsection (3) of this section, the city council’s license ordinance under KRS 243.070 would have to apply to all city territory and it could not apply to designated areas of the city. OAG 73-307 .

When “dry” territory is annexed to “wet” territory, the annexed territory is not automatically “wet” and a local option election may be held in the precinct, including the annexed territory, and the outcome of this election will determine the “wet” or “dry” status of the entire precinct, as the way the majority of the voters in either the annexed territory or the original territory voted has no effect on the “wet” or “dry” status of the annexed territory. OAG 73-650 .

Every city of the first four classes that establishes home rule by compliance with subsection (1) of this section may only thereafter change its status by holding another separate, special local option election under subsection (1) of this section and, since it cannot hold such an election more often than once in every three (3) years, such city would not vote in a county-wide election where it had held an election establishing home rule within three (3) years; moreover, such city having independently determined its own local option status, the outcome of a county-wide election would not affect the city. OAG 76-624 .

Home rule for any city of the first four (4) classes located in a dry county is only achieved by each such city independently complying with provisions of subsection (1) of this section. OAG 76-624 .

The Karloftis v. Mills, 312 Ky. 722 , 229 S.W.2d 477, 1950 Ky. LEXIS 746 (1950), case stands for the proposition that every city of the first four (4) classes may independently determine its own local option status and thus establish home rule and therefore, every city of the first four (4) classes in a dry county must separately and independently establish home rule under subsection (1) of this section and because one city has made an independent determination of its local option status and established home rule under the statute, this does not automatically establish home rule for any other such city similarly situated. OAG 76-624 .

Where a city of the first four (4) classes has established home rule by conducting a local option election in which it votes in favor of prohibition, it will thereafter always independently determine its own local option status under subsection (1) of this section and KRS 242.200 and in the event prohibition is repealed in a local option election held in the county, the outcome of the county election will not affect the city. OAG 76-624 .

Where, subsequent to local option election in city in which city voted “wet,” territory was annexed to city, application for a malt beverage license should have been denied since the annexed territory encompassing the location of the business for which the malt beverage license was being sought remained “dry” after becoming annexed to the city and an election would have to be held in the entire precinct encompassing the annexed territory and therefore in the location of the business for which the malt beverage license was sought in order to redetermine the local option status of the annexed territory, including the business location in question. OAG 76-644 .

A magisterial district located in a wet county could subsequently conduct a separate election to determine its own local option status. OAG 77-467 .

The precinct-wide election or elections may be held at any time subsequent to the city-wide election, subject to the prohibitions contained in KRS 242.030 regarding regular elections. OAG 78-649 .

A city precinct local option election should not be conducted on the same day as a city-wide local option election. OAG 79-382 .

A city-wide election would convert “dry” annexed territory into “wet” territory if a city voted “wet.” OAG 79-382 .

“Dry” territory annexed to the “wet” remains “dry” until some action is taken to change its status. OAG 79-382 .

The annexation of the dry territory into the wet city precinct creates an enlarged precinct with both wet and dry areas, which is located within a “wet” city, and which may conduct a precinct election, and if the majority of voters are opposed to prohibition, convert the territory into an entirely “wet” precinct. OAG 79-382 .

Where a county has previously held a county-wide local option election at which it voted in favor of prohibition, a fourth-class city located within that county is a separate territorial unit under subsection (1) of this section for the purpose of determining its status on the issue of prohibition, and the city may proceed immediately with a city-wide local option election without waiting for three years as specified in subsection (5) of KRS 242.030 . OAG 81-271 .

Where a city previously held a local option election which resulted in the city being designated a “wet territory” despite the fact that two (2) precincts voted for prohibition and where a small portion of a “dry” county was then annexed to one (1) of the two (2) precincts which had voted for prohibition, the annexed territory assumed the “wet” status of the precinct pursuant to subsection (2) of KRS 242.190 ; however, a local option election could then be held to determine the “wet” or “dry” status of the precinct pursuant to subsection (1) of this section, despite the prior city-wide election. OAG 81-399 .

Since subsection (1) of this section authorizes a local option election in any city of the first four (4) classes in a dry county, but does not provide for separate voting by such cities when a county-wide election is called in a dry county, the votes for a fourth-class city could not be tabulated separately from the remaining county votes outside the corporate limits of the city. OAG 82-534 .

Where a county-wide local option election was held in a county that was dry prior to and remained dry after the election, even though a majority of the votes within a city were against prohibition, the provisions of KRS 242.220 to 242.430 were applicable to the city and such city could immediately proceed with a separate local option election pursuant to subsection (1) of this section to take the sense of the people as to discontinuance of prohibition within the city. OAG 82-534 .

Local option elections are within state “licensing and regulatory laws” for which an included city should be deemed to exist even after the adoption of an urban-county form of government. Therefore, the county unit rule would still apply to all of a county outside of that city, which would remain an independent unit for purposes of local option elections. The urban-county government charter may provide that future local option elections will not be bound by the “county unit” rule. OAG 88-40 .

242.126. Effect on local option status of a county if urban-county government adopted.

  1. The adoption of urban-county government by a county when the local option status of the county is different from any of the cities contained therein shall not affect the local option status of the county or any of the cities contained therein. The territorial boundaries in the county shall survive the adoption of urban-county government for purposes of an election pursuant to KRS 242.125 . The adoption of urban-county government shall not impede or affect the right of a county or city contained therein to determine its own local option status.
  2. No part of this section shall apply to any urban-county government established prior to July 13, 1990.

History. Enact. Acts 1990, ch. 135, § 1, effective July 13, 1990; 2014, ch. 92, § 292, effective January 1, 2015.

242.127. Sale of distilled spirits or wine by the drink in wet city with population of 3,000 to 7,999 — Local option election. [Repealed]

HISTORY: Enact. Acts 1972, ch. 96, § 1; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 96, § 1) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

242.129. Statement of proposition submitted in election. [Repealed]

History. Enact. Acts 1972, ch. 96, § 2; 1982, ch. 360, § 67, effective July 15, 1982; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 96, § 2; 1982, ch. 360, § 67, effective July 15, 1982) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

242.1292. Limited sale precincts in cities with populations of 20,000 or more.

  1. The provisions of this section shall be applicable only in any city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census notwithstanding any other provisions of this chapter relating to the wet or moist status in any county, city, or territory which may be to the contrary.
  2. In any city meeting the population requirements of subsection (1) of this section that is dry or moist in all or part of the city, and upon a determination that an economic hardship exists in one (1) or more of the voting precincts of the city in the manner prescribed in subsection (11) of this section, the governing body of the city shall by ordinance designate the precinct or precincts as a limited sale precinct or precincts and shall provide for an election to be held in the precinct or precincts to take the sense of the people of each precinct as to making that precinct wet territory. A petition seeking a local option election under this section shall state “We the undersigned registered voters hereby petition for an election on the following question: “Are you in favor of the sale of alcoholic beverages in (official name of precinct)?’”.
  3. The election shall be held in the precinct or precincts in the manner prescribed in this chapter. The election shall not be deemed to be an election in the “same territory” within the meaning of KRS 242.030(3).
  4. The question shall be presented to the voters in conformance with the requirements of KRS 242.050 except that the form of the proposition shall be, “Are you in favor of the sale of alcoholic beverages in (official name and designation of precinct)?”.
  5. If a majority of the votes cast in any limited sale precinct in which an election is held under 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 office of city alcoholic beverage control administrator.
  6. The governing body of the city shall adopt the comprehensive regulatory ordinance covering the licensing and operation of establishments for the sale of alcoholic beverages, including, but not limited to, distilled spirits and malt beverages, within a limited sale precinct as set forth in this section. In relation to the ordinances established by a city meeting the population requirements of subsection (1) of this section under this subsection and subsection (7) of this section, review by the board, if any, shall be limited to a determination that the ordinances do not exceed the limits established for sale by statute, or administrative regulations promulgated by the board under those statutes. In its discretion the governing body shall provide without review by the board that:
    1. 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.
    2. 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 (1) limited sale precinct. One (1) license in each limited sale precinct may be reserved for 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 requirements of this section or to bona fide restaurants open to the general public having dining facilities for not less than one hundred (100) persons. 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 of bona fide fraternal or veterans organizations.
  7. The governing body of the city may also incorporate in the regulatory ordinance any other reasonable rules and regulations as it deems, necessary or desirable for the proper administration and enforcement of this section, for the maintenance of public order in a limited sale precinct, and for the issuance of any licenses permitted by KRS 243.070 .
  8. Notwithstanding any limitations imposed on the city’s taxing or licensing power by KRS 243.070 , once any limited sale precinct has been established as wet territory, the governing body of the city may impose a regulatory license fee upon the gross receipts of each establishment located in the precinct and licensed to sell alcoholic beverages. The regulatory license fee may be levied at the beginning of each city budget period at the percentage rate reasonably estimated to fully reimburse the city for the estimated costs of any additional policing, regulatory, or administrative expenses related to the sale of alcoholic beverages in the city. The regulatory license fee shall be in addition to any other taxes, fees, or licenses permitted by law, but a credit against the fee shall be allowed in an amount equal to any licenses or fees imposed by the city pursuant to KRS 243.070 .
  9. Subject to the limitation imposed by subsection (3) of this section, no provision contained in this section providing for the establishment of a limited sale precinct shall preclude or abridge the right of the constitutionally qualified voters of the precinct to petition for a subsequent election on the same question.
  10. If an election is held pursuant to other provisions of KRS Chapter 242 in the city or the county in which a limited sale precinct is located for the purpose of taking the sense of the voters upon the question of the entire city or the entire county becoming dry, wet, or moist, the status of that question in a limited sale precinct shall be determined in the following manner:
    1. The status of a limited sale precinct shall not be affected by any election for the entire city or the entire county if the limited sale precinct was established less than five (5) years prior to the date of the proposed election for the entire city or the entire county and if so the voters of any limited sale precinct shall not vote in the election.
    2. If the limited sale precinct was established more than five (5) years prior to the date of the proposed election for the entire city or the entire county, the voters within each limited sale precinct shall be presented with the question, “Are you in favor of continuing the sale of alcoholic beverages in (official name and designation of precinct) as a limited sale precinct?”. No other question shall be presented to the voters of any limited sale precinct.
    3. The votes of each limited sale precinct shall be counted separately, and, if a majority of the votes cast in the limited sale precinct are in favor of continuing the sale of alcoholic beverages in the precinct as a limited sale precinct, then the status shall continue within the precinct, except that if the city or the county in which the limited sale precinct is located votes wet in the remainder of the city or the county, the limited sale precinct status of any precinct may be terminated by the governing body of the city or the county and the status of the precinct shall be the same as that in effect for the remainder of the city or the county.
  11. Any precinct located entirely within any city meeting the population requirements of subsection (1) of this section that is dry in all or part of the city shall be designated as a limited sale precinct by the governing body of the city if:
    1. The governing body determines to its satisfaction that the general trade, business, and economy of one (1) or more of the precincts within the city is substantially, adversely affected by the legal sale of alcoholic beverages in any neighboring or adjoining state, county, city, town, district, or precinct. For the purpose of making this determination, the governing body may hold hearings, examine witnesses, or receive evidence as it believes necessary or desirable for the purpose; or
    2. The governing body receives a petition signed by a number of constitutionally qualified voters of a precinct equal to thirty-three percent (33%) of the votes cast in the precinct at the last preceding general election requesting the governing body of the city to designate the precinct as a limited sale precinct. The petition may consist of one (1) or more separate units and shall be filed with the mayor of the city. In addition to the name of the voter, the petition shall also state the voter’s post office address and the correct date upon which the voter’s name is signed. Upon receipt of the petition, the mayor shall present it to the governing body of the city at its next regularly scheduled meeting and, after verifying that the petition is in compliance with the requirements of this section, the governing body shall by ordinance immediately designate the precinct to be a limited sale precinct.

HISTORY: Enact. Acts 1980, ch. 80, § 1, effective July 15, 1980; 2017 ch. 62, § 27, effective June 29, 2017.

Legislative Research Commission Note.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 121 and 248. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 248, which was last enacted by the General Assembly prevails under KRS 446.250 .

NOTES TO DECISIONS

1.Constitutionality.

Subdivision (10)(a) of this section is clearly premised on a finding by the governing body that the economy of a certain precinct has been adversely affected by the prohibition against the sale of alcoholic beverages; accordingly, the subdivision bears a reasonable relationship to the purpose of the act, which is to help the precinct’s economy, and is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

Subdivision (10)(b) of this section bears no relationship to the statutory purpose of helping the precinct’s economy and is unconstitutional as special and local legislation, and elections held pursuant to that subdivision were void; however, because of the implied severability clause in KRS 446.090 , the remainder of this section is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

With the exception of subdivision (10)(b), this section is constitutional. United Dry Forces v. Citizens for Progressive Community, 635 S.W.2d 478, 1982 Ky. LEXIS 272 ( Ky. 1982 ).

2.Legislative Intent.

The intent of the Legislature in enacting this section was to allow the sale of alcoholic beverages to relieve economic distress. United Dry Forces v. Citizens for Progressive Community, 635 S.W.2d 478, 1982 Ky. LEXIS 272 ( Ky. 1982 ).

3.Local and Special Legislation.

This section does not deal with government organizations or structure; accordingly, it does not fall within the exception provided by Ky. Const., § 156 to the prohibitions against local and special legislation contained in Ky. Const., §§ 59 and 60. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

This section does not permit a city to create a scheme that disqualifies certain types of retailers, such as grocery stores or gasoline stations, from obtaining a package license to sell alcoholic beverages. City of Ashland v. Kentucky Alcoholic Bev. Control Bd., 982 S.W.2d 210, 1998 Ky. App. LEXIS 37 (Ky. Ct. App. 1998).

4.Quota on Licenses.

The discretion to impose quotas on licenses does not contemplate quotas on retail malt beverage licenses. City of Ashland v. Kentucky Alcoholic Bev. Control Bd., 982 S.W.2d 210, 1998 Ky. App. LEXIS 37 (Ky. Ct. App. 1998).

242.1293. Election in county with city of second class with prohibition for limited sale by the drink for on-premises consumption. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 432, § 6) was repealed by Acts 1980, ch. 80, § 2, effective July 15, 1980.

242.1294. Statement of proposition submitted in election.

The proposition to be voted on in any election held pursuant to KRS 242.1292 and this section shall be: “Are you in favor of the sale of distilled spirits, wine and malt beverages by the drink for consumption on the premises in (name of county or city) by hotels, motels and inns containing not less than fifty (50) sleeping units and having dining facilities for not less than one hundred (100) persons and in restaurants having dining facilities for not less than one hundred (100) persons?” Each voter shall designate his vote by a “yes” or a “no” vote.

History. Enact. Acts 1978, ch. 432, § 7, effective June 17, 1978; 1980, ch. 188, § 227, effective July 15, 1980; 1982, ch. 360, § 69, effective July 15, 1982.

242.1295. Licensing restrictions. [Repealed, reenacted, and amended.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 432, § 8, effective June 17, 1978; 2012, ch. 125, § 2, effective July 12, 2012) was repealed, reenacted and amended by Acts 2013, ch. 121, § 18, effective June 25, 2013.

242.1296. Requisites for subsequent elections.

If the sense of the people in an election held pursuant to the provisions of KRS 242.1292 and 242.1294 is “yes,” no other local option election shall be held in that county or city, unless an additional election is first held pursuant to the provisions of KRS 242.1292 and 242.1294 in which the sense of the people is “no.”

History. Enact. Acts 1978, ch. 432, § 9, effective June 17, 1978; 1984, ch. 111, § 113, effective July 13, 1984.

242.1297. Election in a precinct in a city of the third class where the entire city is wet territory. [Repealed.]

History. Enact. Acts 1998, ch. 248, § 2, effective July 15, 1998; 2000, ch. 435, § 5, effective July 14, 2000; 2013, ch. 121, § 19, effective June 25, 2013; Repealed, Acts 2014, ch. 92, § 314, effective January 1, 2015.

Compiler's Notes

This section (Enact. Acts 1998, ch. 248, § 2, effective July 15, 1998; 2000, ch. 435, § 5, effective July 14, 2000; 2013, ch. 121, § 19, effective June 25, 2013) was repealed by Acts 2014, ch. 92, § 314, effective January 1, 2015.

242.1298. Moist territory resulting from a special limited local option election to remain dry except for specific type of sales authorized by the election proposition — Limited local option election to return moist territory to dry status at later date.

  1. After a special limited local option election that establishes a territory as moist, the territory shall remain dry in every other respect that it was dry before that election, except for the specific moist status authorized by the election proposition.
  2. If any territory votes to become moist under any limited local option election authorized under this chapter, the citizens of that territory may hold a limited local option election on the same moist proposition at a later date to disapprove limited alcohol sales and its moist status.

History. Enact. Acts 2013, ch. 121, § 6, effective June 25, 2013.

Referendum on Sale of Beer

242.130. Dry territory may allow sale of 3.2% beer. [Repealed.]

Compiler’s Notes.

This section (2554c-1) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

242.140. Petition for referendum. [Repealed.]

Compiler’s Notes.

This section (2554c-1) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

242.150. County judge/executive to order referendum. [Repealed.]

Compiler’s Notes.

This section (2554c-1: amend. Acts 1978, ch. 384, § 379, effective June 17, 1978) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

242.160. Advertisement of referendum. [Repealed.]

Compiler’s Notes.

This section (2554c-1: amend. Acts 1966, ch. 239, § 174) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

242.170. Question to be voted on — Conduct of referendum — Effect. [Repealed.]

Compiler’s Notes.

This section (2554c-1) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

242.180. No referendum for three years after territory votes dry. [Repealed.]

Compiler’s Notes.

This section (2554c-1) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

Limited Sale Authorization

242.185. Ordinance permitting limited sale of alcoholic beverages by the drink — Application — Regulatory fee — Local option election. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 176, § 1, effective July 15, 1988; 1990, ch. 219, § 3, effective July 13, 1990; 2000, ch. 435, § 17, effective July 14, 2000) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

Prohibition

242.190. Effective date of establishment of dry territory — Effect of annexation.

  1. When a majority of the votes cast at a local option election are in favor of establishing dry territory, the territory shall be dry at the expiration of sixty (60) days from the date of the entry of the certificate of the county board of election commissioners in the order book of the county judge/executive.
  2. Upon the annexation of any local option territory by a city, either before July 15, 1980, or subsequent thereto, the annexed territory shall assume the same local option status as the local option status of the annexing city. Nothing in this section shall impair the right of any precinct in the annexed territory to determine its own status with respect to the legal sales of alcoholic beverages in accordance with the provisions of KRS Chapter 242.

History. 2554c-15: amend. Acts 1978, ch. 384, § 380, effective June 17, 1978; 1980, ch. 92, § 1, effective July 15, 1980; 2013, ch. 121, § 20, effective June 25, 2013.

NOTES TO DECISIONS

1.Suspension of Prohibition.

Order of circuit court, suspending operation of prohibition pending appeal from judgment in contest suit, was invalid insofar as it conditioned the suspension upon the appellants not pleading or relying upon the order of suspension in any prosecution brought against them for violating the local option law during the period of suspension. Keeling v. Coker, 294 Ky. 199 , 171 S.W.2d 263, 1943 Ky. LEXIS 423 ( Ky. 1943 ).

Courts have no power to postpone the date on which prohibition is to take effect but they may upon a showing of necessity for an injunction grant a temporary stay of enforcement of the prohibition law against the person seeking such a stay. Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

Enforcement of prohibition is not automatically suspended by the filing of a suit to contest the election. Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

While a court has no inherent equity power with regard to election contest cases it does have equity powers where election contests involve property rights that are in need of protection. Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

Cited:

Rodgers v. Webster, 266 Ky. 679 , 99 S.W.2d 781 (1936), overruled in part, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

Opinions of Attorney General.

Where a city previously held a local option election which resulted in the city being designated a “wet territory” despite the fact that two precincts voted for prohibition and where a small portion of a “dry” county was then annexed to one of the two precincts which had voted for prohibition, the annexed territory assumed the “wet” status of the precinct pursuant to subsection (2) of this section; however, a local option election could then be held to determine the “wet” or “dry” status of the precinct pursuant to subsection (1) of KRS 242.125 , despite the prior city-wide election. OAG 81-399 .

The 1980 amendment to this section, which added subsection (2), would obviously modify the holding in Rich-Hills Catering Co. v. Slattery, 448 S.W.2d 379, 1969 Ky. LEXIS 54 (Ky. Ct. App. 1969), particularly in view of the conclusion reached therein to the effect that the legislature had provided no method of changing the status of a territory other than by an election as provided in KRS 242.200 . OAG 82-153 .

Where annexed territory is incorporated in and made a part of a “wet” precinct within a city, it will assume the status of the “wet” precinct. OAG 82-153 .

Where territory is annexed by a city and becomes part of a city precinct that has recently voted itself “dry,” the annexed property takes on the local option status of the precinct it is made a part of, in this case a dry precinct, notwithstanding the fact that the city’s local option status is “wet.” OAG 83-171 .

242.195. Vote for prohibition in precinct of a city with population of 12,000 or more to be applied precinct-wide — Exemptions.

  1. Notwithstanding KRS 242.125 , when the voters of any precinct located either partially or entirely within a qualifying city make KRS 242.220 to 242.430 apply to the precinct, the provisions of KRS 242.220 to 242.430 shall apply throughout the entire territory of the precinct, except in any area exempted under subsection (2) of this section. For purposes of this section, a “qualifying city” means a city that contains a total population of twelve thousand (12,000) or greater within its municipal boundaries, based on the most recent decennial census.
  2. The provisions of KRS 242.220 to 242.430 shall not apply to any of the following that existed in a precinct prior to the submission of a petition under KRS 242.020 for that precinct:
    1. An entertainment destination center project meeting the qualifications of KRS 148.853(2)(b);
    2. A theme restaurant destination attraction project meeting the qualifications of KRS 148.853(2)(c); or
    3. Within the established boundaries of a district of special interest created by the city pursuant to the provisions of KRS 100.203(1)(e) that:
      1. Is designated as an entertainment district; and
      2. Has a minimum direct investment by the city government in infrastructure or other public space of at least five million dollars ($5,000,000).
  3. The boundaries of a district of special interest meeting the qualifications of subsection (2)(c) of this section shall not be enlarged or modified to include any additional territory at any time after the submission of a petition under KRS 242.020 unless the voters of the precinct do not make KRS 242.220 to 242.430 apply to the precinct.

History. Enact. Acts 2013, ch. 8, § 1, effective June 25, 2013.

242.200. Discontinuance of dry status in a territory — Effective date.

When a majority of the votes cast at an election are in favor of establishing wet or moist territory, the territory shall be wet or moist at the expiration of sixty (60) days from the date of the entry of the certificate of the county board of election commissioners in the order book of the county judge/executive.

History. 2554c-16: amend. Acts 1978, ch. 384, § 381, effective June 17, 1978; 2013, ch. 121, § 21, effective June 25, 2013.

NOTES TO DECISIONS

1.Duration of Prohibition.

When the people of any county, city, district or precinct have voted in favor of prohibition, a “dry” status has been created that attaches to the involved territory and that status is unalterable unless it is changed by a vote of the people as provided by this section. Rich-Hills Catering Co. v. Slattery, 448 S.W.2d 379, 1969 Ky. LEXIS 54 ( Ky. 1969 ) (decision prior to 1980 amendment of KRS 242.190 ).

Opinions of Attorney General.

Every city of the first four classes that establishes home rule by compliance with subsection (1) of KRS 242.125 may only thereafter change its status by holding another separate, special local option election under subsection (1) of KRS 242.125 and, since it cannot hold such an election more often than once in every three (3) years, such city would not vote in a county-wide election where it had held an election establishing home rule within three (3) years; moreover, such city having independently determined its own local option status, the outcome of a county-wide election would not affect the city. OAG 76-624 .

Where a city of the first four (4) classes has established home rule by conducting a local option election in which it votes in favor of prohibition, it will thereafter always independently determine its own local option status under KRS 242.125 (1) and this section and in the event prohibition is repealed in a local option election held in the county, the outcome of the county election will not affect the city. OAG 76-624 .

The certificate of election on discontinuance of prohibition should be recorded in the county judge/executive’s order book and the book should be maintained in the county clerk’s office and labeled “Executive Order Book of County Judge/Executive.” OAG 78-151 .

The 1980 amendment to KRS 242.190 , which added subsection (2), would obviously modify the holding in Rich-Hills Catering Co. v. Slattery, 448 S.W.2d 379, 1969 Ky. LEXIS 54 (Ky. Ct. App. 1969), particularly in view of the conclusion reached therein to the effect that the Legislature had provided no method of changing the status of a territory other than by an election as provided in this section. OAG 82-153 .

Where annexed territory is incorporated in and made a part of a “wet” precinct within a city, it will assume the status of the “wet” precinct. OAG 82-153 .

Whether two precincts are merged to form a new one, or whether a portion of one precinct is annexed to a different precinct, such alteration of precinct boundaries for voting purposes does not change the local option status of the territory affected. OAG 85-7 .

242.210. Effect of county adopting or rejecting prohibition. [Repealed.]

Compiler’s Notes.

This section (2554c-17) was repealed by Acts 1948, ch. 47, § 4.

242.220. Invalidity of certain licenses previously issued in wet territory that has become dry or moist — Recovery of money paid for unexpired period of license — Issuance of retail alcoholic beverage license in any dry territory prohibited.

  1. After a territory becomes dry or moist, any previously issued license that is no longer available in that territory shall become invalid, but the licensee shall be entitled to recover from the county or city to which the license money was paid, a part of the license money proportionate to the unexpired period of the license.
  2. No retail alcoholic beverage license shall be issued in any dry territory.

History. 2554c-15: amend. 2013, ch. 121, § 22, effective June 25, 2013.

NOTES TO DECISIONS

Cited:

Karloftis v. Mills, 312 Ky. 722 , 229 S.W.2d 477, 1950 Ky. LEXIS 746 ( Ky. 1950 ); Halcomb v. Faulkner, 238 S.W.2d 162, 1951 Ky. LEXIS 810 ( Ky. 1951 ).

Opinions of Attorney General.

Where a county-wide local option election was held in a county that was dry prior to and remained dry after the election, even though a majority of the votes within a city were against prohibition, the provisions of KRS 242.220 to 242.430 were applicable to the city and such city could immediately proceed with a separate local option election pursuant to KRS 242.125(1) to take the sense of the people as to discontinuance of prohibition within the city. OAG 82-534 .

Research References and Practice Aids

Cross-References.

Contraband may be seized in dry territory, KRS 244.190 .

First, second, third or fourth-class city may fix business hours of retailer of distilled spirits and wine, KRS 244.290 .

Fiscal court of county containing first, second and third-class city may fix business hours of retailer of distilled spirits and wine outside city, KRS 244.290 .

242.230. Traffic in alcoholic beverages in dry territory prohibited — Unauthorized traffic in alcoholic beverages in moist territory prohibited — Unlawful possession prohibited — Exception for private residence or event.

  1. No person in dry territory shall sell, barter, loan, procure for, or provide another, or keep or transport for sale, barter, or loan, directly or indirectly, any alcoholic beverage.
  2. No person in moist territory shall sell, barter, loan, procure for, or provide another, or keep or transport for sale, barter, or loan, directly or indirectly, any alcoholic beverage unless the sale of that alcoholic beverage has been specifically authorized in that moist territory under a limited local option election.
  3. No person shall possess any alcoholic beverage unless it has been lawfully acquired and is intended to be used lawfully, and in any action the defendant shall have the burden of proving that the alcoholic beverages found in his or her possession were lawfully acquired and were intended for lawful use.
    1. It shall not be a violation of this section for a person to possess or consume, or to provide alcoholic beverages to others in dry or moist territory, if: (4) (a) It shall not be a violation of this section for a person to possess or consume, or to provide alcoholic beverages to others in dry or moist territory, if:
      1. The alcoholic beverages were lawfully purchased in wet or moist territory;
      2. The alcoholic beverages are not sold to any person in dry or moist territory;
      3. Any person possessing or consuming alcohol is twenty-one (21) years of age or older;
      4. The possession, consumption, or provision occurs at a private residence or private event, regardless of whether the venue is a public place; and
      5. The possession, consumption, or provision does not occur at a public place in violation of KRS Chapter 222.
    2. For purposes of this section, an event is public, not private, if any member of the public is permitted to enter or attend the event upon payment of consideration.

History. 2554c-18, 2554c-37: amend. 2013, ch. 121, § 23, effective June 25, 2013; 2019 ch. 201, § 1, effective April 9, 2019.

NOTES TO DECISIONS

1.Constitutionality.

This section is not unconstitutionally vague and the defendant’s equal protection rights were not violated when she was prosecuted and convicted for causing whiskey to be delivered to law enforcement officers, even if giving away whiskey was a common occurrence that had not been systematically prosecuted. Carver v. Commonwealth, 634 S.W.2d 418, 1982 Ky. LEXIS 262 ( Ky. 1982 ).

2.Possession.

Neither KRS 243.020 nor this section makes mere possession of intoxicating liquor an offense, but possession must be to traffic therein in some way. Roberts v. Commonwealth, 284 Ky. 31 , 143 S.W.2d 856, 1940 Ky. LEXIS 439 ( Ky. 1940 ).

Under this section, in order to constitute an offense, the liquor must be kept or possessed for the purpose of “sale, barter or loan, directly or indirectly.” Scott v. Commonwealth, 311 Ky. 419 , 224 S.W.2d 458, 1949 Ky. LEXIS 1165 ( Ky. 1949 ).

To be guilty of illegally possessing intoxicating liquor within the meaning of the local option law such liquor must not only be kept for the purpose of sale but it must be subject to the control and management of the accused. Noble v. Commonwealth, 295 S.W.2d 343, 1956 Ky. LEXIS 160 ( Ky. 1956 ).

Possession of liquor in dry territory constitutes an offense if (1) it is for sale, barter or loan, or (2) if the liquor was unlawfully acquired, or (3) if the liquor is intended to be used unlawfully. Padgett v. Commonwealth, 299 S.W.2d 255, 1956 Ky. LEXIS 44 ( Ky. 1956 ).

Subsection (2) (now (3)) of this section defines an offense of possessing liquor unlawfully acquired. Padgett v. Commonwealth, 299 S.W.2d 255, 1956 Ky. LEXIS 44 ( Ky. 1956 ).

Mere possession of alcoholic beverages does not constitute a violation of this provision. Irvin v. Commonwealth, 317 S.W.2d 178, 1958 Ky. LEXIS 82 ( Ky. 1958 ), overruled, Johnson v. Commonwealth, 509 S.W.2d 274, 1974 Ky. LEXIS 560 ( Ky. 1974 ).

Mere possession of alcoholic beverages in local option territory does not constitute an offense. Holbrook v. Commonwealth, 327 S.W.2d 950, 1959 Ky. LEXIS 84 ( Ky. 1959 ), overruled, Johnson v. Commonwealth, 509 S.W.2d 274, 1974 Ky. LEXIS 560 ( Ky. 1974 ).

In local option territory it is an offense to possess moonshine whiskey. Dillon v. Commonwealth, 328 S.W.2d 147, 1959 Ky. LEXIS 92 ( Ky. 1959 ).

While possession of a large quantity of alcoholic beverages may give rise to an inference of intent to sell or other illicit purpose, mere possession of five cases of beer was not a “large quantity” so as to raise such an inference. Howard v. Commonwealth, 558 S.W.2d 643, 1977 Ky. App. LEXIS 857 (Ky. Ct. App. 1977).

In prosecution for possession of alcoholic beverages for purposes of sale under this section, introduction of search warrant and affidavit containing information regarding other offenses committed by the defendants over defendants’ objections was reversible error. Turner v. Commonwealth, 551 S.W.2d 266, 1977 Ky. App. LEXIS 723 (Ky. Ct. App. 1977).

Proof of possession by defendant of some 44 bottles of liquor and 35 cases of beer, particularly when combined with testimony as to defendant’s reputation in the community, presented sufficient evidence to support a finding that possession was for sale or some other illegal purpose. Johnson v. Commonwealth, 551 S.W.2d 577, 1977 Ky. App. LEXIS 694 (Ky. Ct. App. 1977).

3.— Personal Use.

One may keep or transport intoxicating liquor for personal use in dry territory without violating this section. Settles v. Commonwealth, 294 Ky. 403 , 171 S.W.2d 999, 1943 Ky. LEXIS 453 ( Ky. 1943 ).

It is not a criminal offense to transport alcoholic beverages by either public or private conveyance into dry territory for personal use. Holbrook v. Commonwealth, 327 S.W.2d 950, 1959 Ky. LEXIS 84 ( Ky. 1959 ), overruled, Johnson v. Commonwealth, 509 S.W.2d 274, 1974 Ky. LEXIS 560 ( Ky. 1974 ).

4.Search Warrant.

Where a search warrant was issued on the basis of an affidavit made by a person who gave a false name and could not later be located, the affidavit was invalid and the search warrant likewise was invalid. Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

An affidavit of a police officer which affidavit was based upon what the officer had been told by an unidentified person was insufficient to authorize the issuance of a search warrant. Johnson v. Commonwealth, 445 S.W.2d 441, 1969 Ky. LEXIS 162 ( Ky. 1969 ).

Where, on an affidavit for a search warrant, the personal property sought was not stated and the personal property “used as the means of committing a crime” was not described, the affidavit did not make out probable cause, thus making the search constitutionally impermissible and the evidence of the fruits of the search consequently inadmissible. Day v. Commonwealth, 465 S.W.2d 304, 1971 Ky. LEXIS 463 ( Ky. 1971 ).

Where the affidavit on which the search warrant was based stated that alcoholic beverages were then on the premises of the defendant and that affiant knew they were on the premises for the purpose of sale through information given him by an informant who had purchased beverages there, such affidavit was sufficient the constitute probable cause for the issuance of the search warrant and did not violate § 10 of the Constitution. Hopkins v. Commonwealth, 484 S.W.2d 863, 1971 Ky. LEXIS 53 ( Ky. 1971 ).

5.Separate Offenses.

Conviction of person on charge of selling whiskey in dry territory was no bar to a prosecution of the same person for possessing liquor, where first prosecution was based on sale of two pints of whiskey and second prosecution was based on possession of several pints of gin, found on premises on search under search warrant made one hour after the sale of the whiskey. The fact that the gin was in possession at the time of the sale of the whiskey did not restrict the conduct to one offense, since continuing to retain possession of the gin after the sale of the whiskey constituted a separate offense. Mears v. Hord, 293 Ky. 176 , 168 S.W.2d 736, 1943 Ky. LEXIS 588 ( Ky. 1943 ).

While selling and possession for sale of intoxicating liquor are separate offenses if committed at different times, proof of a sale may constitute evidence to sustain a charge of illegal possession. Helvey v. Commonwealth, 396 S.W.2d 780, 1965 Ky. LEXIS 123 ( Ky. 1965 ).

6.Proof of Local Option.

A record is the “best evidence” to prove that a county has adopted local laws, and in a prosecution for a violation of a local option law, the Commonwealth should prove that the local option law was in effect at the time of the commission of the offense charged. Minx v. Commonwealth, 283 Ky. 14 , 140 S.W.2d 658, 1940 Ky. LEXIS 283 ( Ky. 1940 ). But see Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ).

Where Commonwealth offered no proof that local option law was in force in county, such failure of proof necessitated a reversal of judgment of conviction. Howard v. Commonwealth, 285 Ky. 486 , 148 S.W.2d 336, 1941 Ky. LEXIS 408 ( Ky. 1941 ). But see Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ).

Courts will not take judicial knowledge that a county or district has adopted local option. Farmer v. Commonwealth, 259 S.W.2d 73, 1953 Ky. LEXIS 937 ( Ky. 1953 ). But see Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ).

Where defendant is prosecuted for the offense of selling alcoholic beverages in a dry territory it is incumbent upon the Commonwealth to prove local option was in effect in the county at the time of the occurrence of the offense, and failure to prove this fact is reversible error. Spencer v. Commonwealth, 324 S.W.2d 398, 1959 Ky. LEXIS 368 ( Ky. 1959 ). But see Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ).

Absent some special issue as to the existence of local option, the trial court will take judicial notice of the county’s status in this respect. Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ).

Recitation in judgment was sufficient recognition that judicial notice had been taken of the fact that the county involved was local option dry territory. Roberts v. Commonwealth, 467 S.W.2d 121, 1971 Ky. LEXIS 352 ( Ky. 1971 ).

Where the evidence showed that a transaction occurred in a certain county, the recitation in the judgment that appellant was guilty of selling alcohol in a local dry option territory was sufficient proof of this element of the crime. Turner v. Commonwealth, 562 S.W.2d 85, 1978 Ky. App. LEXIS 464 (Ky. Ct. App. 1978).

Where the evidence showed that a transaction occurred in a certain county, the recitation in the judgment that appellant was guilty of selling alcohol in a local dry option territory was sufficient proof of this element of the crime. Turner v. Commonwealth, 562 S.W.2d 85, 1978 Ky. App. LEXIS 464 (Ky. Ct. App. 1978).

7.Invalid Ordinance.

An ordinance of a dry fourth-class city, enacted pursuant to KRS 86.110 (repealed), prohibiting sale of “any drink containing any malt of any percentage of alcohol” was held invalid as being in conflict with this section which, though prohibiting sale of any “alcoholic beverage” in dry territory, impliedly authorizes sale of “alcoholic beverages” containing less than one percent of alcohol by volume as KRS 242.010 defines an “alcoholic beverage” as one containing more than one percent of alcohol by volume. Arnold v. Commonwealth, 309 Ky. 620 , 218 S.W.2d 661, 1949 Ky. LEXIS 777 ( Ky. 1949 ).

8.Criminal Intent.

The absence of a criminal intent is not a bar to the enforcement of the penalties imposed by the local option law. Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ).

9.Previous Convictions.

It was improper for trial court in prosecution of three defendants for possessing liquor for the purpose of sale in dry territory to permit prosecution to cross-examine one defendant concerning previous convictions of violations of the local option law. White v. Commonwealth, 310 S.W.2d 277, 1958 Ky. LEXIS 384 ( Ky. 1958 ).

While the burden is on the Commonwealth to prove that prior crimes and the one with which the defendant is now charged were committed successively after each conviction, where the second conviction recited in an indictment was itself an earlier conviction under the enhancement provision for a third offense, the determination of successiveness had already been made at a prior trial and proof that such trial resulted in conviction was sufficient to support the conviction for selling alcoholic beverages in a local option territory. Owsley v. Commonwealth, 556 S.W.2d 451, 1977 Ky. App. LEXIS 818 (Ky. Ct. App. 1977).

In a prosecution under this section for causing whiskey to be delivered to law enforcement officers, where the jury returned a guilty verdict and, on the basis of prior 1976 local option law conviction, defendant received the maximum enhanced sentence of 120 days in jail and a $200 fine under KRS 242.990(1), the action of Circuit Court, which on appeal found error in admission of the unsigned prior convictions, but instead of granting a new trial, directed the district court to enter a new order, sentencing movant to 60 days and a $100 fine, was erroneous as in doing so, the Circuit Court improperly attempted to divine the intent of the district court jury. Carver v. Commonwealth, 634 S.W.2d 418, 1982 Ky. LEXIS 262 ( Ky. 1982 ).

10.Indictment.

Indictment charging that accused “unlawfully” possessed intoxicating liquor in local option territory was insufficient, as against contention that “unlawfully” was equivalent to charge that accused possessed it for sale. Baker v. Commonwealth, 284 Ky. 92 , 143 S.W.2d 842, 1940 Ky. LEXIS 435 ( Ky. 1940 ).

One charged with trafficking in liquor in local option territory must be prosecuted under the local option law. Stroud v. Commonwealth, 291 Ky. 588 , 165 S.W.2d 172, 1942 Ky. LEXIS 289 ( Ky. 1942 ).

Indictment merely charging defendant with unlawfully transporting intoxicating liquor in local option territory, without alleging that transportation was for purpose of sale, barter or loan, was fatally defective. Settles v. Commonwealth, 294 Ky. 403 , 171 S.W.2d 999, 1943 Ky. LEXIS 453 ( Ky. 1943 ).

Indictment charging defendant with possession of intoxicating liquor in local option territory was not sufficient where it did not allege that possession was for purpose of sale. McWhorter v. Commonwealth, 294 Ky. 857 , 172 S.W.2d 628, 1943 Ky. LEXIS 538 ( Ky. 1943 ).

Indictment for selling alcoholic beverage in local option territory was fatally defective where it did not name the purchaser of the beverage or allege that purchaser was unknown to grand jury. Johnson v. Commonwealth, 299 Ky. 72 , 184 S.W.2d 212, 1944 Ky. LEXIS 1012 ( Ky. 1944 ).

Indictment for selling alcoholic beverage in local option territory which alleged that prohibition had become effective in such territory “under the laws of the alcoholic control act,” and which did not allege that there had been a local option election in the territory, was fatally defective, since the alcoholic control act contains no provisions for the establishment of local option territory. Johnson v. Commonwealth, 299 Ky. 72 , 184 S.W.2d 212, 1944 Ky. LEXIS 1012 ( Ky. 1944 ).

An indictment charging defendant with unlawful possession of whiskey was defective for failing to charge that defendant possessed whiskey for the purpose of sale, barter, loan or transportation. Bray v. Commonwealth, 302 Ky. 846 , 196 S.W.2d 725, 1946 Ky. LEXIS 768 ( Ky. 1946 ).

Where an indictment charging a violation of this section does not allege that the sale was made in dry or local option territory, the indictment is fatally defective. Farmer v. Commonwealth, 259 S.W.2d 73, 1953 Ky. LEXIS 937 ( Ky. 1953 ).

Where the offense charged is the unlawful sale of liquor as distinguished from unlawful possession with the intention to sell, the name of the person to whom the accused sells the liquor must be stated or, if the facts warrant it, must be stated that the name of such person is unknown. Asher v. Commonwealth, 324 S.W.2d 824, 1959 Ky. LEXIS 392 ( Ky. 1959 ).

Indictment was defective and demurrable because it did charge the “canned heat” was fit for beverage purposes, or that an intent to sell it for such use could be reasonably inferred from the accused having it in his possession. Gilbert v. Commonwealth, 325 S.W.2d 319, 1959 Ky. LEXIS 50 ( Ky. 1959 ).

A warrant of arrest or an indictment setting forth an infringement of the local option law must specifically aver that the offense was committed in dry territory. Gilbert v. Commonwealth, 325 S.W.2d 319, 1959 Ky. LEXIS 50 ( Ky. 1959 ).

Where the appellant claimed the indictment was defective but failed to state how, he did not make a sufficient showing of error to entitle him to review. Baker v. Commonwealth, 465 S.W.2d 305, 1971 Ky. LEXIS 464 ( Ky. 1971 ).

Indictment charging local option violation with two prior convictions need only state that the convictions followed one another. It is not necessary for it to state that the second offense was committed after the first conviction. House v. Commonwealth, 466 S.W.2d 949, 1971 Ky. LEXIS 415 ( Ky. 1971 ).

Indictment setting out the details of a local option offense and alleging that this was defendant’s third offense of that type was sufficient as setting out the essential facts constituting the specific offense charged. Roberts v. Commonwealth, 467 S.W.2d 121, 1971 Ky. LEXIS 352 ( Ky. 1971 ).

11.Evidence.

Evidence which did not show that accused had possession of intoxicating liquor for any of the purposes prohibited by either KRS 243.020 or KRS 242.230 , was insufficient as matter of law to show violation of such sections. Roberts v. Commonwealth, 284 Ky. 31 , 143 S.W.2d 856, 1940 Ky. LEXIS 439 ( Ky. 1940 ).

Where evidence showed defendant had purchased whiskey unlawfully, for personal consumption, and had in fact consumed most of it, there was no violation of this section, and the defendant was entitled to a peremptory instruction. Bray v. Commonwealth, 302 Ky. 846 , 196 S.W.2d 725, 1946 Ky. LEXIS 768 ( Ky. 1946 ).

Conviction under this section reversed where only evidence was that defendant, while visiting prisoner in jail, was seen by deputy jailer standing close to bars with hand in bosom talking to inmate, and on being searched was found to be carrying a half-pint of whiskey. Sims v. Commonwealth, 308 Ky. 281 , 214 S.W.2d 400, 1948 Ky. LEXIS 931 ( Ky. 1948 ).

Where an amount of alcoholic beverages larger than normal for personal use was found in the trailer occupied by the defendant and he admitted purchasing the beverages and that they were his property and he had a reputation for violating the local option law, the proof was sufficient for the jury to find him guilty of a violation of the statute. Miller v. Commonwealth, 432 S.W.2d 638, 1968 Ky. LEXIS 347 ( Ky. 1968 ).

Possession of 60 or more cases of beer in an automobile in local option territory raises an inference that it was not for personal or other legitimate use and constitutes circumstantial evidence of illicit purpose. Smith v. Commonwealth, 467 S.W.2d 606, 1971 Ky. LEXIS 396 ( Ky. 1971 ).

Where the arresting officer claims he purchased nine cans of Pabst Blue Ribbon beer and three cans of Drewry’s beer from the defendant, in addition to a half pint of whiskey, but at trial introduces 11 cans of Pabst and one can of Drewry’s, it is sufficient to convict the defendant of selling alcohol in dry territory under this section when the officer satisfactorily explained the extra cans of Pabst and the absence of two cans of Drewry's. Patton v. Commonwealth, 473 S.W.2d 144, 1971 Ky. LEXIS 153 ( Ky. 1971 ).

Where search of defendant’s car revealed he had 17 cases of beer in the trunk of his car, the quantity was sufficient to support a conviction for offense of transporting alcoholic beverages for purpose of sale in local option territory. Johnson v. Commonwealth, 509 S.W.2d 274, 1974 Ky. LEXIS 560 ( Ky. 1974 ).

Where the only evidence that the liquid which was sold, if any, was alcohol was the testimony of the trooper who participated in the purchase and no chemical analysis of the liquid was made to determine if in fact it was an alcoholic beverage, nor was any testimony introduced that consuming that particular liquid in sufficient quantity would cause intoxication, the Commonwealth did not prove, beyond a reasonable doubt. that the liquid was one prohibited under KRS Chapter 242. Turner v. Commonwealth, 562 S.W.2d 85, 1978 Ky. App. LEXIS 464 (Ky. Ct. App. 1978).

Where the officers seized 48 cans of beer, five pints of whiskey, and one pint of vodka, there was an apparent attempt to destroy the evidence, and the defendant had previously pleaded guilty to a similar offense, there was sufficient evidence to overcome a directed verdict and to give the case to the jury, and there was sufficient evidence to sustain the jury’s verdict of conviction. Smith v. Commonwealth, 712 S.W.2d 360, 1986 Ky. App. LEXIS 1128 (Ky. Ct. App. 1986).

12.— Reputation.

Upon another trial, if reputation evidence is offered, the trial court will limit such evidence to a reasonable time immediately preceding the date of the alleged offense, upon proper request. Duff v. Commonwealth, 464 S.W.2d 264, 1971 Ky. LEXIS 485 ( Ky. 1971 ).

In local option violation, prosecution testimony concerning defendant’s reputation as a liquor law violator should be limited to a reasonable time preceding the date of the alleged violation. House v. Commonwealth, 466 S.W.2d 949, 1971 Ky. LEXIS 415 ( Ky. 1971 ).

13.— Other Crimes.

The admissibility of evidence stating that the witness helped defendant unload the beer at the premises, for the purpose of showing the connection with the contraband material, did not violate the rule prohibiting evidence of other crimes even though it related to defendant’s illegal activities. Duff v. Commonwealth, 464 S.W.2d 264, 1971 Ky. LEXIS 485 ( Ky. 1971 ).

14.— Previous Convictions.

The judgment was adequate to show the fact and character of a previous conviction and it would be unnecessary and, in some cases, prejudicial to admit the warrant on which the prior prosecution was based. Spears v. Commonwealth, 462 S.W.2d 931, 1971 Ky. LEXIS 565 ( Ky. 1971 ).

Circuit clerk’s testimony concerning court record reflecting first conviction, showing entry of judgment of conviction on June 7, 1956, and indictment charging a liquor law violation assertedly committed on or about October 1, 1969, “second offense, former conviction: Clay Circuit Court Indictment #8109 June 7, 1956, fined $40.00 sentenced 30 days in jail” made clear that the alleged second violation of local option law occurred subsequently to the commission and conviction of the first alleged violation. Duff v. Commonwealth, 464 S.W.2d 264, 1971 Ky. LEXIS 485 ( Ky. 1971 ).

Where the judgment book showed the dates of the two previous convictions without showing the dates of the commission of those offenses but there was three (3) years between the two convictions, there was abundant circumstantial evidence of the required progressive sequence. Baker v. Commonwealth, 465 S.W.2d 305, 1971 Ky. LEXIS 464 ( Ky. 1971 ).

Judgment book used without objection as part of testimony of justices of peace that defendant had been convicted on two prior occasions of violating liquor law adequately demonstrated the essential elements to evidence defendant’s prior convictions. Roberts v. Commonwealth, 467 S.W.2d 121, 1971 Ky. LEXIS 352 ( Ky. 1971 ).

15.— Jury Question.

The evidence of defendant’s illegal possession of beer with proof of appellant’s bad reputation respecting violation of liquor laws was adequate to create a jury issue as to his proprietary connection with the beer and it was not necessary to establish appellant’s legal title to the premises on which beer was found. Duff v. Commonwealth, 464 S.W.2d 264, 1971 Ky. LEXIS 485 ( Ky. 1971 ).

16.Instructions.

In prosecution for selling intoxicating liquors in dry territory giving of instruction that included the penalty for trafficking in alcoholic beverages without a license instead of the penalty for selling intoxicating liquors in dry territory was reversible error. Holt v. Commonwealth, 283 Ky. 138 , 140 S.W.2d 1013, 1940 Ky. LEXIS 302 ( Ky. 1940 ).

Where jury was instructed it could fine or imprison the accused, instead of imposing a fine and imprisonment as provided in this section, if it found him guilty, and the jury returned with a fine only, the judge should not have permitted the entry of the verdict and granted a new trial. Chandler v. Commonwealth, 293 S.W.2d 717, 1956 Ky. LEXIS 86 ( Ky. 1956 ).

In prosecution of three defendants for possessing liquor for sale in dry territory where arresting officers testified that when they entered defendants were breaking bottles in the stove and sink and there was glass in the sink and stove, one defendant testified that he had only two bottles in the house belonging to him and that he threw them in the stove and his defense as to the other bottles was simply a general denial, two other defendants were not entitled to an instruction that on theory of defense that whiskey found on their premises belonged to other defendant. White v. Commonwealth, 310 S.W.2d 277, 1958 Ky. LEXIS 384 ( Ky. 1958 ).

The defendant was not entitled to reversal of her conviction on grounds that she was entitled to an affirmative instruction on her defense that the room in which the alcoholic beverages were found and its contents were rented and in the possession of another and that she had no possession of them, where she failed to object to the instructions given and failed to raise the question in her motion and grounds for a new trial or at any time before her appeal. Jarrett v. Commonwealth, 434 S.W.2d 808, 1968 Ky. LEXIS 249 ( Ky. 1968 ).

Instructions which failed to require a finding that the beer was possessed for sale and did not properly submit the sequence as to prior offense constituted reversible error. Duff v. Commonwealth, 464 S.W.2d 264, 1971 Ky. LEXIS 485 ( Ky. 1971 ).

Where there was no specific objection to the instructions, either during the trial or in the motion and grounds for new trial, directed to the specific point complained of on appeal, the issue was not preserved for review. Baker v. Commonwealth, 465 S.W.2d 305, 1971 Ky. LEXIS 464 ( Ky. 1971 ).

Instruction which failed to require that each successive offense had been committed after conviction of the previous one in case involving local option violation with two previous convictions was erroneous. House v. Commonwealth, 466 S.W.2d 949, 1971 Ky. LEXIS 415 ( Ky. 1971 ).

Technical objection to judge’s instructions not made at the time instructions were given and not presented on motion for new trial was not of sufficient magnitude to warrant reversal, as evidence clearly established that defendant had committed prior offenses and been convicted of them. Roberts v. Commonwealth, 467 S.W.2d 121, 1971 Ky. LEXIS 352 ( Ky. 1971 ).

17.Appeal.

Where a notice of appeal was filed in the circuit court on the date the circuit court’s order was entered but no notice was filed in the Court of Appeals or served on the other parties and the record was not filed within 30 days, the motion for appeal was overruled. Embry v. Commonwealth, 423 S.W.2d 523, 1968 Ky. LEXIS 486 ( Ky. 1968 ).

18.Double Jeopardy.

Tampering with physical evidence and possession of alcoholic beverages are clearly separate criminal statutes and do not constitute double jeopardy. Smith v. Commonwealth, 712 S.W.2d 360, 1986 Ky. App. LEXIS 1128 (Ky. Ct. App. 1986).

19.Comment by Prosecutor.

Where the defendant produced no defense and there was a substantial amount of evidence against him, any error resulting from the comment by the prosecutor as to the defendant’s failure to state at any time that the alcoholic beverages seized were for his own personal use was harmless. Smith v. Commonwealth, 712 S.W.2d 360, 1986 Ky. App. LEXIS 1128 (Ky. Ct. App. 1986).

Cited:

Meeks Motor Freight, Inc. v. Falls City Brewing Co., 268 Ky. 213 , 104 S.W.2d 421, 1937 Ky. LEXIS 43 3 ( Ky. 1937 ); Commonwealth v. McKee, 293 Ky. 706 , 170 S.W.2d 340, 1943 Ky. LEXIS 707 ( Ky. 1943 ); Commonwealth v. Trousdale, 297 Ky. 724 , 181 S.W.2d 254, 1944 Ky. LEXIS 80 3 ( Ky. 1944 ); Strunk v. Commonwealth, 302 Ky. 284 , 194 S.W.2d 504, 1946 Ky. LEXIS 649 ( Ky. 1946 ); Hicks v. Commonwealth, 311 Ky. 492 , 224 S.W.2d 916, 1949 Ky. LEXIS 11 98 ( Ky. 1949 ); Hunter v. Commonwealth, 239 S.W.2d 993, 1951 Ky. LEXIS 932 (Ky. Ct. App. 1951); Bowling v. Commonwealth, 244 S.W.2d 475, 1951 Ky. LEXIS 1225 ( Ky. 1951 ); Click v. Commonwealth, 247 S.W.2d 371, 1952 Ky. LEXIS 691 ( Ky. 1952 ); Hancock v. Commonwealth, 262 S.W.2d 670, 1953 Ky. LEXIS 11 10 ( Ky. 1953 ); Helton v. Commonwealth, 276 S.W.2d 656, 1955 Ky. LEXIS 43 3 ( Ky. 1955 ); Skipworth v. Commonwealth, 279 S.W.2d 11, 1955 Ky. LEXIS 500 ( Ky. 1955 ); McBride v. Commonwealth, 279 S.W.2d 772, 1955 Ky. LEXIS 536 (Ky. 1955); Shirley v. Commonwealth, 293 S.W.2d 636, 1956 Ky. LEXIS 81 ( Ky. 1956 ); Hughes v. Commonwealth, 295 S.W.2d 350, 1956 Ky. LEXIS 162 ( Ky. 1956 ); Johnson v. Commonwealth, 296 S.W.2d 210, 1956 Ky. LEXIS 186 (Ky. 1956); Ruth v. Commonwealth, 298 S.W.2d 300, 1957 Ky. LEXIS 368 ( Ky. 1957 ); Abner v. Commonwealth, 298 S.W.2d 314, 1957 Ky. LEXIS 373 ( Ky. 1957 ); Commonwealth use of Middlesboro v. Commonwealth, 298 S.W.2d 685, 1957 Ky. LEXIS 382 (Ky. 1957); Johnson v. Commonwealth, 318 S.W.2d 414, 1958 Ky. LEXIS 134 ( Ky. 1958 ); Bowling v. Commonwealth, 331 S.W.2d 715, 1960 Ky. LEXIS 124 ( Ky. 1960 ); Tuttle v. Commonwealth, 331 S.W.2d 891, 1959 Ky. LEXIS 11 ( Ky. 1959 ), overruled, Etherton v. Commonwealth, 335 S.W.2d 899, 1960 Ky. LEXIS 288 ( Ky. 1960 ); Halbert v. Commonwealth, 334 S.W.2d 922, 1960 Ky. LEXIS 243 (Ky. 1960); Hobbs v. Commonwealth, 335 S.W.2d 952, 1960 Ky. LEXIS 307 (Ky. 1960); Brumfield v. Commonwealth, 374 S.W.2d 499, 1964 Ky. LEXIS 381 ( Ky. 1964 ); Buckley v. Commonwealth, 383 S.W.2d 349, 1964 Ky. LEXIS 33 ( Ky. 1964 ); Perkins v. Commonwealth, 383 S.W.2d 916, 1964 Ky. LEXIS 67 (Ky. 1964); Taylor v. Commonwealth, 386 S.W.2d 480, 1964 Ky. LEXIS 176 (Ky. 1964); Lane v. Commonwealth, 386 S.W.2d 743, 1964 Ky. LEXIS 179 , 10 A.L.R.3d 308 (Ky. 1964); Stewart v. Commonwealth, 389 S.W.2d 910, 1965 Ky. LEXIS 395 ( Ky. 1965 ); Barrett v. Commonwealth, 390 S.W.2d 654, 1965 Ky. LEXIS 362 ( Ky. 1965 ); Johns v. Commonwealth, 394 S.W.2d 890, 1965 Ky. LEXIS 212 (Ky. 1965); Yates v. Commonwealth, 399 S.W.2d 736, 1966 Ky. LEXIS 486 ( Ky. 1966 ); Gossett v. Commonwealth, 402 S.W.2d 857, 1966 Ky. LEXIS 389 ( Ky. 1966 ); Hunt v. Commonwealth, 408 S.W.2d 182, 1966 Ky. LEXIS 78 (Ky. 1966); Noble v. Commonwealth, 408 S.W.2d 185, 1966 Ky. LEXIS 80 (Ky. 1966); Green v. Commonwealth, 413 S.W.2d 329, 1967 Ky. LEXIS 386 ( Ky. 1967 ); Little v. Commonwealth, 419 S.W.2d 332, 1967 Ky. LEXIS 146 ( Ky. 1967 ); Arnold v. Commonwealth, 421 S.W.2d 366, 1967 Ky. LEXIS 59 (Ky. 1967); Brown v. Commonwealth, 422 S.W.2d 715, 1967 Ky. LEXIS 43 (Ky. 1967); Lumpkins v. Commonwealth, 425 S.W.2d 535, 1968 Ky. LEXIS 414 ( Ky. 1968 ); Adkins v. Commonwealth, 441 S.W.2d 417, 1969 Ky. LEXIS 316 ( Ky. 1969 ); Bray v. Weaver, 453 S.W.2d 7, 1970 Ky. LEXIS 291 ( Ky. 1970 ); Baldwin v. Commonwealth, 459 S.W.2d 135, 1970 Ky. LEXIS 116 ( Ky. 1970 ); Barnes v. Ashcraft, 490 S.W.2d 484, 1973 Ky. LEXIS 632 ( Ky. 1973 ); Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 1987 Ky. LEXIS 246 ( Ky. 1987 ).

Opinions of Attorney General.

It is not permissible to transport beer into dry territory in order to give it away or sell it to another person notwithstanding the lack of any profit. OAG 63-576 .

The amount of beer transported by a person into dry territory would not matter so long as it was all for his own use. OAG 63-576 .

If in dry territory, a county jailer could arrest anyone delivering liquor to an inmate of the jail without a warrant if the offense was committed in the jailer’s presence. OAG 65-183 .

A beverage which contains less than one percent of alcohol by volume is not an “alcoholic beverage” as the term is defined by KRS 242.010(1) and its distribution in dry territory is not regulated by this section. OAG 68-334 .

An inferior court under KRS 439.550 may probate the fine or the jail sentence or both for violations of the local option statute. OAG 70-694 .

Whenever any person has been found guilty of a crime, upon verdict or plea, in any court inferior to the Circuit Court, the jail sentence cannot be probated where KRS 439.550 has not been or cannot be complied with. OAG 70-694 .

Whenever any person has been found guilty of a crime, upon verdict or plea, in any court inferior to the Circuit Court, where all conditions of KRS 439.550 are complied with, the court may probate the jail sentence but require the paying of the fine. OAG 70-694 .

Drinking of alcoholic beverages in a private place, whether wet or dry, is not disorderly conduct and is not a crime. This section only prohibits the possession of alcoholic beverages when the possession is for the purpose of sale or possession has been acquired unlawfully. However, if there is evidence that the possession is unlawful, that is, for the purpose of sale, such evidence would not support a charge of disorderly conduct. OAG 70-831 .

It is not a violation of the local option law for persons belonging to a private club to have their own beverages, individually marked, stored at the club to be consumed when the members of the club so desire, provided that the club possesses no such beverages and that there is no sale of them. OAG 70-831 .

The provisions of the local option law do not prohibit persons from bringing their own alcoholic beverages to a private dance. The local option law does not prohibit a person from possessing alcoholic beverages for his own personal consumption, nor does it prohibit him from consuming these beverages in a private place. OAG 70-831 .

A private club would not be permitted to sell malt beverages if it is located in dry territory. OAG 72-216 .

Since only the possession of liquor for the purpose of trafficking in liquor is prohibited, a member of a private club may bring his own liquor for his own personal consumption provided that he does not sell, barter, loan, give away, procure or furnish alcohol to another regardless of whether club members are required to sign an agreement not to violate the law. OAG 73-820 .

An employee-member of a private club in charge of the club premises would not be in violation of this section by permitting the club members to drink their personally owned alcoholic beverages on the private club premises. OAG 74-313 .

A private club would not be in violation of this section in allowing its adult club members to bring their own alcoholic beverages into the club for their own personal consumption as the mere possession of legally produced, legally possessed and legally purchased alcoholic beverages by a person at least 21 years of age for his “own personal consumption” is not in violation of this section. OAG 74-313 .

A bartender of a private club cannot keep a member’s bottle with his name or club number on the bottle behind the bar and pour a drink for the member and for his guest in a set up sold by the club. OAG 74-574 .

An adult member of a private club can legally procure and store his legally produced and legally possessed individual beer and whiskey in his owned, furnished or rented private individual locker on the club’s premises without being in violation of the alcoholic beverage control laws as the mere possession of the beverage for his own private consumption is not illegal, but the member cannot give a friend or a guest a drink from the member’s private bottle. OAG 74-574 .

A private club can cool a member’s private beer in its own regular cooler without private sections for each member provided the member’s name appears on the beverage container, thereby identifying the real owner. OAG 74-574 .

A private club can sell and charge for nonalcoholic set ups without violating the alcoholic beverage statutes. OAG 74-574 .

A private club member may bring in warm beer earlier and ask the bartender to cool the beer for later use that night but the member’s name must appear on the container. OAG 74-574 .

A private club member owning and keeping alcoholic beverages on the club premises should be prepared to prove that the alcoholic beverages were legally procured by him. OAG 74-574 .

In order to avoid a law violation a private club must be prepared to prove that the name of each member keeping alcoholic beverages on the premises properly appears on each container. OAG 74-574 .

Two private club members may be assigned one locker and may keep their privately owned beverages in the joint locker providing the names of the owners appear on the containers. OAG 74-574 .

A private country club located in “dry” territory may not establish a bar and sell alcoholic beverages solely to its members. OAG 75-208 .

Although there is no specific quantity of alcoholic beverages that serves as a line of demarcation between unlawful possession or transportation of such beverages for the purpose of sale and lawful possession or transportation, as covered by this section, and each case must rest on its own particular facts, evidence of transportation of a large quantity of alcoholic beverages in dry territory raises an inference that such beverage was not possessed for personal or other legitimate use and is sufficient to support a conviction of the offense of transporting such beverages for the purpose of sale. OAG 76-279 .

Any messenger or delivery service used to acquire alcoholic beverages to be transported into dry territory would be in direct violation of this section, regardless of whose money was used to purchase the beverages and regardless of ownership. OAG 79-389 .

A private club where each member purchases and stores his own bottle of liquor for his personal use on the premises is legal; mere possession of alcoholic beverages in dry territory is not a violation of the local option laws. OAG 79-389 .

Since this section prohibits the sale of alcoholic beverages in dry territory, a sheriff who has executed upon a large quantity of such goods under a general order of execution could not sell the beverages as other property. OAG 79-581 .

A private club located in dry territory can make a club member’s whiskey available to him for his consumption in the club house. OAG 84-185 .

The mere possession of alcoholic beverages in local option territory does not constitute an offense and it is not a criminal offense to transport alcoholic beverages by either public or private conveyance into dry territory for personal use. OAG 84-185 .

The drinking of alcoholic beverages in a private club, whether in a wet or dry county, is not a crime; this section only prohibits the possession of alcoholic beverages when that possession is for the purpose of sale in a dry territory or the possession has been unlawfully acquired. OAG 84-185 .

This section, to be applicable, involves possession for the purpose of trafficking in liquor in dry territory; thus liquor lawfully acquired and lawfully used is outside of this prohibition. OAG 84-185 .

Research References and Practice Aids

Cross-References.

Contraband may be seized in dry territory, KRS 244.190 .

First, second, third and fourth-class city may fix business hours of retailer of distilled spirits and wine, KRS 244.290 .

Fiscal court of county containing first, second, third and fourth-class city may fix business hours of retailer of distilled spirits and wine outside city, KRS 244.290 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, §§ 9.36A — 9.37B.

242.240. Sale or gift of articles not classed as alcoholic beverages restricted.

A person shall not sell or give any of the articles listed in KRS 241.010(2)(a) to (e) and (h) as not within the definition of alcoholic beverages, knowing that, or under such circumstances that, the seller or giver might reasonably deduce that the purchaser or person to whom the article is given intends to use it for beverage purposes.

History. 2554c-40: amend. Acts 1998, ch. 121, § 7, effective July 15, 1998; 2000, ch. 435, § 6, effective July 14, 2000; 2008, ch. 28, § 4, effective July 15, 2008.

242.250. Distributing, soliciting or receiving contracts or orders in dry territory prohibited, when — Same prohibition on contracts or orders to any moist territory unless sale of alcoholic beverages specifically authorized under limited local option election — Immunity for licensed common carriers — Absolute defense.

  1. No person, while representing either the buyer or seller, shall distribute, solicit, or receive contracts, proposals, or orders for the purchase or sale of any alcoholic beverages, or distribute any handbills or posters advertising them in dry territory.
  2. Each act of distributing, soliciting, or receiving contracts, proposals, or orders as denounced in subsection (1), and each day in which advertising matter is distributed, shall constitute a separate offense.
  3. This chapter shall not prevent any manufacturer of or wholesale dealer in alcoholic beverages, or any authorized agent of either from making contracts of barrel, case, or package lots in any dry or moist territory, if his or her distilleries, breweries, wineries, or warehouses are located in that territory and his or her products are to be shipped into territory, either within or without the state, where alcoholic beverages may lawfully be sold.
  4. Subsections (1) and (2) of this section shall also apply to moist territory unless the sale of the alcoholic beverage in question has been specifically authorized in that moist territory under a limited local option election.
  5. No properly licensed common carrier or any of its employees acting on behalf of a consignor shall be liable for a violation of this section.
  6. Proof that the purchaser represented in writing that the delivery address is located in wet territory shall be an absolute defense to a violation of this section on behalf of a retailer, winery, small farm winery, or distillery in connection with the delivery or shipment of alcoholic beverages purchased at retail.

History. 2554c-19: amend. 2013, ch. 121, § 24, effective June 25, 2013; 2018 ch. 164, § 9, effective April 13, 2018.

NOTES TO DECISIONS

1.Solicitation of Orders.

The gravamen of the offense is the soliciting of orders for the sale of alcoholic beverages. Commonwealth v. Whitlow, 311 Ky. 274 , 223 S.W.2d 1003, 1949 Ky. LEXIS 1124 ( Ky. 1949 ).

2.Billboards.

Billboard advertising is not prohibited by this section. Crowder v. Schlitz Brewing Co., 295 Ky. 822 , 175 S.W.2d 1003, 1943 Ky. LEXIS 355 ( Ky. 1943 ).

Cited:

Meeks Motor Freight, Inc. v. Falls City Brewing Co., 268 Ky. 213 , 104 S.W.2d 421, 1937 Ky. LEXIS 433 ( Ky. 1937 ); Schlitz Brewing Co. v. Crowder, 292 Ky. 140 , 166 S.W.2d 274, 1942 Ky. LEXIS 60 (1942); Crowder v. Franklin County Distilling Co., 297 Ky. 35 , 178 S.W.2d 928, 1944 Ky. LEXIS 653 ( Ky. 1944 ); Franklin County Distilling Co. v. Crowder, 305 Ky. 84 , 202 S.W.2d 1015, 1947 Ky. LEXIS 768 ( Ky. 1947 ).

Opinions of Attorney General.

This section does not prohibit the placing of an advertisement by a whiskey distiller in a newspaper of general circulation published in a dry territory. OAG 67-73 .

Subsection (1) of this section prohibits the advertising of alcoholic beverages, including malt beverages, distilled spirits and wine, by billboards in local option territory. OAG 69-142 .

This section and KRS 242.260 and 242.280 do not prohibit the issuance or transfer of a beer wholesaler’s license for the location in a “dry” county. OAG 71-221 .

Research References and Practice Aids

Cross-References.

Manufacturer in dry territory exempt from local option law, when, KRS 242.300 .

242.260. Transportation and delivery in dry or moist territory prohibited — Exception for any moist territory where sale of alcoholic beverages specifically authorized under limited local option election — Immunity for common carriers — Absolute defense — Exception for private residence or event.

  1. It shall be unlawful for any person to bring into, transfer to another, deliver, or distribute in any dry or moist territory, except as provided in subsection (2) of this section, any alcoholic beverage, regardless of its name. Each package of such beverage so brought, transferred, or delivered in such territory shall constitute a separate offense. Nothing in this section shall be construed to prevent any distiller or manufacturer or any authorized agent of a distiller, manufacturer, or wholesale dealer from transporting or causing to be transported by a licensed carrier any alcoholic beverage to their distilleries, breweries, wineries, or warehouses where the sale of such beverage may be lawful, either in or out of the state.
  2. Subsection (1) of this section shall also apply to any moist territory unless the sale of the alcoholic beverage in question has been specifically authorized in that moist territory under a limited local option election.
  3. No properly licensed common carrier or any of its employees acting on behalf of a consignor shall be liable for a violation of this section.
  4. Proof that the purchaser represented in writing that the delivery address is located in wet territory shall be an absolute defense to a violation of this section on behalf of a retailer, winery, small farm winery, or distillery in connection with the delivery or shipment of alcoholic beverages purchased at retail.
  5. It shall not be a violation of this section for a person to bring alcoholic beverages that were lawfully purchased in wet or moist territory into dry or moist territory to a private residence, or to a private event regardless of whether the venue is a public place, for personal consumption or consumption by others so long as the possession, consumption, or provision does not occur at a public place in violation of KRS Chapter 222. For purposes of this subsection, an event is public, not private, if any member of the public is permitted to enter or attend the event upon payment of consideration.

History. 2554c-20: amend. Acts 1942, ch. 186, §§ 1, 3; 2013, ch. 121, § 25, effective June 25, 2013; 2018 ch. 164, § 10, effective April 13, 2018; 2019 ch. 201, § 2, effective April 9, 2019.

Legislative Research Commission Note.

“Alcoholic beverage” has been substituted for “intoxicating liquor” in order to fit the definitions contained in KRS 242.010 .

NOTES TO DECISIONS

1.Personal Use.

The legislature in enacting this section did not intend to prohibit a person from carrying into dry territory alcoholic beverages for his personal use. Commonwealth v. Trousdale, 297 Ky. 724 , 181 S.W.2d 254, 1944 Ky. LEXIS 803 ( Ky. 1944 ).

2.Shipment to Wholesaler.

Alcoholic beverages cannot be shipped to a wholesaler in dry territory. Meeks Motor Freight, Inc. v. Falls City Brewing Co., 268 Ky. 213 , 104 S.W.2d 421, 1937 Ky. LEXIS 433 ( Ky. 1937 ) (decision prior to 1942 amendment).

3.Evidence from Invalid Search.

In action for transporting alcoholic beverages in local option territory for the purpose of sale where trooper after arresting defendant for driving with defective headlights and defendant’s passenger for public drunkenness, searched without a search warrant defendant’s truck which had been parked in front of courthouse and, after forcing open the rear door of the car, discovered 100 cases of beer, 24 fifths of wine and extra cans of beer, it was prejudicial error to admit the evidence obtained as a result of such a search. Flannery v. Commonwealth, 324 S.W.2d 128, 1959 Ky. LEXIS 358 ( Ky. 1959 ).

4.Instructions.

Where instruction as phrased did not require the jury to believe that transportation of alcoholic beverages in local option territory was for the purpose of sale it was defective and reversal was required because it failed to contain the material part of the offense of which appellant was indicted. Clark v. Commonwealth, 388 S.W.2d 622, 1965 Ky. LEXIS 450 ( Ky. 1965 ).

Opinions of Attorney General.

The amount of beer transported by a person into dry territory would not matter so long as it was all for his own use. OAG 63-576 .

A taxi driver does not violate this section by taking a passenger from dry territory into wet territory where the passenger purchases alcoholic beverages for personal consumption and then returning his passenger to dry territory. OAG 67-520 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.38.

242.270. C.O.D. shipments of alcoholic beverages in dry territory prohibited — Same prohibition on C.O.D. shipments to any moist territory unless sale of alcoholic beverages specifically authorized under limited local option election — Immunity for common carriers — Absolute defense.

  1. No person shall sell or deliver any alcoholic beverages that are to be paid for on delivery, in dry territory.
  2. Such transactions shall be deemed sales at the place where the money is paid or the goods delivered.
  3. This section shall also apply to the sale or delivery of any alcoholic beverages that are to be paid for on delivery in moist territory unless the sale of the alcoholic beverage in question has been specifically authorized in that moist territory under a limited local option election.
  4. No properly licensed common carrier or any of its employees acting on behalf of a consignor shall be liable for a violation of this section.
  5. Proof that the purchaser represented in writing that the delivery address is located in wet territory shall be an absolute defense to a violation of this section on behalf of a retailer, winery, small farm winery, or distillery in connection with the delivery or shipment of alcoholic beverages purchased at retail.

History. 2554c-23: amend. 2013, ch. 121, § 26, effective June 25, 2013; 2018 ch. 164, § 11, effective April 13, 2018.

NOTES TO DECISIONS

Cited:

Commonwealth v. Trousdale, 297 Ky. 724 , 181 S.W.2d 254, 1944 Ky. LEXIS 803 ( Ky. 1944 ).

242.280. Receiving alcoholic beverages from carrier in dry territory prohibited — Exception for receiving or accepting alcoholic beverages to be sold in lawful territory within or without state — Same prohibition on receiving alcoholic beverages in any moist territory unless sale of alcoholic beverages specifically authorized under limited local option election.

  1. It shall be unlawful for any person of dry territory to receive or accept any alcoholic beverage from a common carrier or from any person who has transported the beverage in or into such territory for compensation, hire, or profit of any kind whatsoever either directly or indirectly. Each and every package of said alcoholic beverage so received or accepted shall constitute a separate offense. Nothing in this section shall be construed to prevent any distiller or manufacturer of alcoholic beverages or any authorized agent of a distiller or manufacturer or wholesale dealer from receiving or accepting any alcoholic beverages which are to be sold in a territory where the sale of such beverages may be lawful either in or out of the state.
  2. Subsection (1) of this section shall apply to any moist territory unless the sale of the alcoholic beverage in question has been specifically authorized in that moist territory under a limited local option election.

History. 2554c-21: amend. Acts 1942, ch. 186, §§ 2, 3; 2013, ch. 121, § 27, effective June 25, 2013; 2013, ch. 121, § 27, effective June 25, 2013.

Legislative Research Commission Note.

“Alcoholic beverage” has been substituted for “intoxicating liquor” in order to fit the definitions contained in KRS 242.010 .

NOTES TO DECISIONS

Cited:

Meeks Motor Freight, Inc. v. Falls City Brewing Co., 268 Ky. 213 , 104 S.W.2d 421, 1937 Ky. LEXIS 433 ( Ky. 1937 ); Commonwealth v. Trousdale, 297 Ky. 724 , 181 S.W.2d 254, 1944 Ky. LEXIS 803 ( Ky. 1944 ).

242.290. Shipments across county and out of dry or moist territory not affected.

KRS 242.260 and 242.280 shall not apply to the transportation of alcoholic beverages through dry or moist territory to a point in some other state, or to a point in this state where alcoholic beverages may be lawfully sold; or to the receipt or acceptance by a common carrier from a manufacturer for transportation to a point in another state or to a point in this state where alcoholic beverages may lawfully be sold.

History. 2554c-22: amend. 2013, ch. 121, § 28, effective June 25, 2013.

NOTES TO DECISIONS

Cited:

Meeks Motor Freight, Inc. v. Falls City Brewing Co., 268 Ky. 213 , 104 S.W.2d 421, 1937 Ky. LEXIS 433 ( Ky. 1937 ).

242.300. Manufacture of small quantities not prohibited in dry territory.

The normal restrictions applicable in dry territory shall not apply to any manufacturer who in good faith and in the usual course of trade sells alcoholic beverages of the manufacturer’s own make, at his or her manufactory, in quantities of not less than three (3) gallons delivered at one time for immediate transportation, to a point in some other state, or to a point in this state where alcoholic beverages may be lawfully sold.

History. 2554c-41: amend. 2013, ch. 121, § 29, effective June 25, 2013.

242.310. Renting of property, or hiring vehicle for transportation is nuisance — Forfeiture.

  1. Any person knowingly or intentionally renting or permitting the use of, or using, any premises, or part thereof, or any vehicle for the purpose of unlawfully selling or transporting or possessing intoxicating liquors in dry territory, shall be guilty of a nuisance and of a violation of this chapter.
  2. Any property so used shall be forfeited to the state. The forfeiture shall extend to the whole of the premises or vehicle owned by the defendant, or to his interest in said property, including all land and buildings in one boundary.

History. 2554c-24.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate Const., § 20 nor does it violate U.S. Const., Art. I, § 9. Moore v. Commonwealth, 293 Ky. 55 , 168 S.W.2d 342, 1943 Ky. LEXIS 558 ( Ky. 1943 ).

2.Purpose.

The primary purpose of this section is to prevent further unlawful use of the property by depriving the guilty party of additional opportunity so to misuse it. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

3.Construction.

This section must be strictly construed. Riddell v. Commonwealth, 314 Ky. 362 , 235 S.W.2d 769, 1951 Ky. LEXIS 650 ( Ky. 1951 ).

4.Nature of Proceeding.

A proceeding under this section is special, preventive rather than punitive in its nature and effect, and if substantially followed will sustain an action for abatement. Commonwealth v. Covington, 313 Ky. 458 , 231 S.W.2d 67, 1950 Ky. LEXIS 884 ( Ky. 1950 ).

A forfeiture proceeding is, though civil in form, in the nature of a criminal proceeding. Barnes v. Commonwealth, 314 Ky. 558 , 236 S.W.2d 454, 1951 Ky. LEXIS 686 ( Ky. 1951 ).

5.Forfeiture or Abatement.

This section does not contemplate forfeiture of property not used for unlawful purposes condemned by it; only tracts of land where nuisance existed should be sold. Froedge v. Commonwealth, 289 Ky. 168 , 158 S.W.2d 426, 1942 Ky. LEXIS 530 ( Ky. 1942 ).

Person bringing suit has option of whether to have a forfeiture or abatement and padlocking. Commonwealth ex rel. Williams v. Wilson, 381 S.W.2d 620, 1964 Ky. LEXIS 324 ( Ky. 1964 ).

6.— Innocent Parties.

Whatever the interest vested in the Commonwealth by this section to KRS 242.350 , it is not equal to or superior to that held by an innocent creditor whose interest in the property existed prior to the violation of this section. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

This section was not intended by itself alone to place the Commonwealth in a better position than, or give it a right superior to, an innocent creditor who unquestionably held an interest in the property prior to the arrest of the wrongdoer. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

It was the intention of the Legislature to protect the interests of innocent parties in the property to be forfeited and sold. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

7.Nuisance.

Evidence relating to a single illicit sale of liquor, with attendant circumstances, was sufficient to constitute a nuisance under this section. Beavin v. Commonwealth, 308 Ky. 522 , 215 S.W.2d 119, 1948 Ky. LEXIS 985 ( Ky. 1948 ).

To warrant a conviction for maintaining a liquor nuisance, the Commonwealth must prove the accused, by his ownership or control of the premises, was either maintaining the place or was connected with its maintenance in some way and knew its character. Adkins v. Commonwealth, 313 Ky. 110 , 230 S.W.2d 453, 1950 Ky. LEXIS 819 ( Ky. 1950 ).

8.— Knowledge or Intent.

In action under this section evidence must clearly establish existence of all conditions rendering property subject to forfeiture and one of these conditions is that owner of property must know or intend that the property is being or is to be used for the unlawful purpose charged. Chaney v. Commonwealth, 314 Ky. 279 , 234 S.W.2d 960, 1950 Ky. LEXIS 1079 ( Ky. 1950 ).

9.Pleadings.

Allegation couched solely in the words of this section was not sufficient as it did not apprise the defendant of the particular acts on the basis of which a nuisance was claimed to exist and for which reason a forfeiture was sought. Barnes v. Commonwealth, 314 Ky. 558 , 236 S.W.2d 454, 1951 Ky. LEXIS 686 ( Ky. 1951 ).

10.Evidence.

Where there was considerable testimony as to open and continuous manufacture, storage and sale of liquor at a private residence, the testimony of the woman who owned and resided in the residence that she had no knowledge that her husband was making or selling liquor there was not sufficient to avoid a forfeiture. Moore v. Commonwealth, 293 Ky. 55 , 168 S.W.2d 342, 1943 Ky. LEXIS 558 ( Ky. 1943 ).

Reputation evidence is not sufficient, by itself, to establish violations of this section. Bowling v. Commonwealth, 255 S.W.2d 984, 1953 Ky. LEXIS 687 ( Ky. 1953 ).

Where prosecution relied on testimony that defendant premises had a reputation for illegal sale of alcohol in dry territory, conviction could not stand because there was no testimony of actual illegal conduct by defendants. Grace v. Commonwealth, 507 S.W.2d 170, 1974 Ky. LEXIS 672 ( Ky. 1974 ).

Cited:

Collett v. Commonwealth, 311 Ky. 218 , 223 S.W.2d 877, 1949 Ky. LEXIS 1098 ( Ky. 1949 ); Osborne v. Commonwealth, 311 Ky. 223 , 223 S.W.2d 894, 1949 Ky. LEXIS 1106 ( Ky. 1949 ); Kavunedus v. Commonwealth, 313 Ky. 795 , 233 S.W.2d 987, 1950 Ky. LEXIS 988 ( Ky. 1950 ).

Opinions of Attorney General.

A fourth-class city police court does not have jurisdiction pursuant to either KRS 242.340 or 242.350 to entertain an action to enjoin a nuisance described by this section, since exclusive jurisdiction in such a situation lies with the Circuit Court. OAG 74-786 .

242.320. Action for forfeiture.

  1. Any Commonwealth’s attorney, county attorney, mayor of a city, or any private citizen may maintain an action in equity in the name of the state upon relation of said officers or citizen against the owner to forfeit property declared a nuisance by KRS 242.310 .
  2. If the petition is filed by a private citizen, it shall not be dismissed except upon a sworn statement made by the citizen and his attorney, setting forth the reasons why same should be dismissed, and except upon approval in writing in open court by the Commonwealth’s attorney or the county attorney.

History. 2554c-24: amend. Acts 1990, ch. 88, § 83, effective July 1, 1992.

Compiler’s Notes.

This section was amended by § 83 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore amendment of this section by § 83 of Acts 1990, ch. 88 became effective July 1, 1992.

NOTES TO DECISIONS

1.Nature of Proceeding.

A forfeiture proceeding is, though civil in form, in the nature of a criminal proceeding. Barnes v. Commonwealth, 314 Ky. 558 , 236 S.W.2d 454, 1951 Ky. LEXIS 686 ( Ky. 1951 ).

2.Knowledge or Intent.

This section is a drastic measure and before property may be forfeited under it, evidence must clearly establish the existence of all the requirements of the statute, one of which is that the owner of the property must know, or intend, the use to which the property is to be put is for the unlawful purpose charged. Riddell v. Commonwealth, 314 Ky. 362 , 235 S.W.2d 769, 1951 Ky. LEXIS 650 ( Ky. 1951 ).

3.Padlock Property.

The authority of the court to padlock property rests on exactly the same grounds as a forfeiture. Commonwealth ex rel. Williams v. Wilson, 381 S.W.2d 620, 1964 Ky. LEXIS 324 ( Ky. 1964 ).

4.Charges.

In forfeiture proceeding the defendant should be apprised clearly of the charges he is called upon to defend. Barnes v. Commonwealth, 314 Ky. 558 , 236 S.W.2d 454, 1951 Ky. LEXIS 686 ( Ky. 1951 ).

5.Bid by Owner.

Person whose property is forfeited should not be prevented from bidding at a forfeiture sale. Beavin v. Commonwealth, 308 Ky. 522 , 215 S.W.2d 119, 1948 Ky. LEXIS 985 ( Ky. 1948 ).

6.Civil Action for Forfeiture.

The result of a criminal prosecution for maintaining a common nuisance at a place by selling and permitting liquor to be kept and sold there is competent evidence in a civil action for forfeiture, but is not conclusive. Moore v. Commonwealth, 293 Ky. 55 , 168 S.W.2d 342, 1943 Ky. LEXIS 558 ( Ky. 1943 ).

Evidence of a conviction in a criminal prosecution is competent though not conclusive in a civil action. Beavin v. Commonwealth, 308 Ky. 522 , 215 S.W.2d 119, 1948 Ky. LEXIS 985 ( Ky. 1948 ).

7.Parties.

It was not necessary to make wife of defendant a party to action for forfeiture for she had only an inchoate right of dower in property and her right would not be affected by sale of her husband’s interest. Froedge v. Commonwealth, 289 Ky. 168 , 158 S.W.2d 426, 1942 Ky. LEXIS 530 ( Ky. 1942 ).

It was the intention of the legislature to protect the interests of innocent parties in the property to be forfeited and sold. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

8.Evidence.

Since forfeiture is a drastic measure, and to avoid contravention of the fifth and fourteenth amendments of the United States constitution, the evidence in such a case clearly must establish the existence of all the conditions rendering the property subject to forfeiture. Chaney v. Commonwealth, 314 Ky. 279 , 234 S.W.2d 960, 1950 Ky. LEXIS 1079 ( Ky. 1950 ).

242.330. Sale of forfeited property and disposition of proceeds.

  1. Upon a judgment of forfeiture under KRS 242.320 , the court shall direct the sheriff to sell the property. The sale shall be made in the same manner as sales under execution, and the same fees shall be allowed the officers conducting the sale.
  2. The sheriff shall pay first out of the purchase money any valid recorded liens on the property so sold. The court may in its discretion order a sale subject to the liens.
  3. No lien on any property so sold shall be paid unless it is recorded prior to the committing of the nuisance and unless the lienor can establish he had no knowledge of the nuisance.
  4. If the petition is filed by a private citizen and a sale ordered, the citizen shall receive ten percent (10%) of the net proceeds of sale of any property under any judgment of forfeiture, after deducting costs and all valid liens.
  5. The sheriff, after payment of liens, costs and fees, shall pay the balance of the proceeds of sale to the circuit clerk, who shall transmit the balance as in the case of other forfeitures.

History. 2554c-24.

NOTES TO DECISIONS

1.Proceeds to Private Citizen.

The fact that plaintiff, a private citizen, receives a part of proceeds of sale of forfeited property, does not affect the decision and deprives defendant of no constitutional right. The trial is by an impartial tribunal. Rickman v. Commonwealth, 204 Ky. 848 , 265 S.W. 452, 1924 Ky. LEXIS 587 ( Ky. 1924 ) (decided under prior law).

Fact that private citizen has a pecuniary interest in the result of the trial does not affect the decision and deprives the defendant of no constitutional right for the trial is by independent tribunal. Froedge v. Commonwealth, 289 Ky. 168 , 158 S.W.2d 426, 1942 Ky. LEXIS 530 ( Ky. 1942 ).

2.Limitations on Action.

KRS 413.120 sets out time within which Commonwealth must bring proceeding to forfeit property used in an illegal business. Bailey v. Runyon, 293 S.W.2d 631, 1956 Ky. LEXIS 79 ( Ky. 1956 ), cert. denied, 353 U.S. 930, 77 S. Ct. 718, 1 L. Ed. 2d 723, 1957 U.S. LEXIS 1094 (U.S. 1957).

3.Parties.

It was the intention of the legislature to protect the interests of innocent parties in the property to be forfeited and sold. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

Cited:

Miller v. Franklin County, 302 Ky. 652 , 195 S.W.2d 315, 1946 Ky. LEXIS 735 ( Ky. 1946 ); Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ); Worthington v. Commonwealth, 304 S.W.2d 926, 1957 Ky. LEXIS 290 ( Ky. 1957 ); Commonwealth ex rel. Williams v. Wilson, 381 S.W.2d 620, 1964 Ky. LEXIS 324 ( Ky. 1964 ).

242.340. Action to enjoin nuisance.

  1. Any Commonwealth’s attorney, county attorney or private citizen may maintain an action in equity in the name of the state to enjoin any nuisance described by KRS 242.310 .
  2. No bond shall be required in instituting proceedings under this section.

History. 2554c-25.

NOTES TO DECISIONS

Cited:

Collett v. Commonwealth, 311 Ky. 218 , 223 S.W.2d 877, 1949 Ky. LEXIS 1098 ( Ky. 1949 ); Osborne v. Commonwealth, 311 Ky. 223 , 223 S.W.2d 894, 1949 Ky. LEXIS 1106 ( Ky. 1949 ); Commonwealth v. Covington, 313 Ky. 458 , 231 S.W.2d 67, 1950 Ky. LEXIS 884 ( Ky. 1950 ); Commonwealth ex rel. Williams v. Wilson, 381 S.W.2d 620, 1964 Ky. LEXIS 324 ( Ky. 1964 ).

Opinions of Attorney General.

A fourth-class city police court does not have jurisdiction to entertain a suit pursuant to this section or KRS 242.350 , concerning an action to enjoin a nuisance described by KRS 242.310 , since exclusive jurisdiction in such a situation lies with the circuit court. OAG 74-786 .

242.350. Court may enjoin nuisance.

  1. If it is made to appear to the satisfaction of the court that a nuisance described by KRS 242.310 exists, a temporary injunction shall forthwith issue, restraining the defendant from conducting or permitting the continuance of the nuisance until the conclusion of the trial. If a temporary injunction is prayed for, the court may issue an order restraining all persons from interfering in any way with the alcoholic beverages, fixtures or other things used in connection with the nuisance.
  2. It shall not be necessary for the court to find the property involved is being unlawfully used as described in KRS 242.310 at the time of the hearing, but on finding that the material allegations of the petition are true, the court shall order that no alcoholic beverages shall be sold, bartered or stored on the premises or vehicle, or any part thereof. Upon judgment of the court ordering the nuisance abated, the court may order that the premises or vehicle shall not be occupied or used for six (6) months.
  3. The court may permit the premises or vehicle to be used if the owner, lessee, tenant or occupant gives bond with sufficient surety, to be approved by the court making the order, in the sum of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), payable to the state and conditioned that alcoholic beverages will not thereafter be sold, bartered, kept or otherwise disposed of on or in the premises or vehicle, and that he will pay all fines, costs and damages that may be assessed for any violation of this chapter on or in the premises or vehicle.

History. 2554c-25: amend. Acts 1976 (Ex. Sess.), ch. 14, § 220, effective January 2, 1978.

NOTES TO DECISIONS

1.Construction.

The plain intent of this section is that the action may be brought for violations occurring within a reasonable time prior thereto and that it is not necessary that it continue up to the time of the filing of the suit. Collett v. Commonwealth, 311 Ky. 218 , 223 S.W.2d 877, 1949 Ky. LEXIS 1098 ( Ky. 1949 ); Osborne v. Commonwealth, 311 Ky. 223 , 223 S.W.2d 894, 1949 Ky. LEXIS 1106 ( Ky. 1949 ); Commonwealth v. Covington, 313 Ky. 458 , 231 S.W.2d 67, 1950 Ky. LEXIS 884 ( Ky. 1950 ); Driver v. Commonwealth, 299 S.W.2d 260, 1957 Ky. LEXIS 403 ( Ky. 1957 ).

2.Nature of Proceeding.

A proceeding under this section is chiefly one in rem to prevent the use of premises for illegal sales or storage of alcoholic beverages. Commonwealth v. Covington, 313 Ky. 458 , 231 S.W.2d 67, 1950 Ky. LEXIS 884 ( Ky. 1950 ).

This section is a special proceeding which is to be used as a preventive rather than as a punitive measure in its nature and effect. Walker v. Commonwealth, 279 S.W.2d 816, 1955 Ky. LEXIS 553 ( Ky. 1955 ).

3.Search.

A search of the premises is not authorized by this section. Walker v. Commonwealth, 279 S.W.2d 816, 1955 Ky. LEXIS 553 ( Ky. 1955 ).

4.Padlock Property.

The authority of the court to padlock property rests on exactly the same ground as a forfeiture. Commonwealth ex rel. Williams v. Wilson, 381 S.W.2d 620, 1964 Ky. LEXIS 324 ( Ky. 1964 ).

5.Parties.

Whatever the interest vested in the Commonwealth by KRS 242.310 to this section, it is not equal to or superior to that held by an innocent creditor whose interest in the property existed prior to the violation of this section. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

KRS 242.310 was not intended by itself alone to place the Commonwealth in a better position than, or give it a right superior to, an innocent creditor who unquestionably held an interest in the property prior to the arrest of the wrongdoer. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

It was the intention of the legislature to protect the interests of innocent parties in the property to be forfeited and sold. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

Cited:

Kavunedus v. Commonwealth, 313 Ky. 795 , 233 S.W.2d 987, 1950 Ky. LEXIS 988 ( Ky. 1950 ); Grace v. Commonwealth, 507 S.W.2d 170, 1974 Ky. LEXIS 672 ( Ky. 1974 ).

Opinions of Attorney General.

A fourth-class city police court does not have jurisdiction to entertain a suit pursuant to this section or KRS 242.340 , concerning an action to enjoin a nuisance described by KRS 242.310 , since exclusive jurisdiction in such a situation lies with the circuit court. OAG 74-786 .

242.360. Illegal transportation of liquor — Seizure of property.

  1. When a peace officer discovers any person in dry territory in the act of illegally possessing or transporting alcoholic beverages in any vehicle, he shall at once seize the vehicle and any and all alcoholic beverages found in it and arrest any person or persons in charge thereof.
  2. Upon conviction of a person arrested under subsection (1), the court shall order the vehicle seized sold at public auction unless the owner of the vehicle proves that it was being used without his knowledge, consent or approval.
  3. The expenses of keeping and selling the vehicle and all valid recorded liens that are established by intervention at a hearing as being bona fide shall be paid out of the proceeds of the sale. The lienor must prove that the property was being used without his knowledge, consent or approval.
  4. After the satisfaction of expenses and liens, the court shall direct that the balance of the proceeds be paid to the circuit clerk, who shall transmit the balance as in the case of other forfeitures. The court shall order all sales to be made by the sheriff, who shall receive and be allowed the same fees as allowed for sales under execution.

History. 2554c-26.

NOTES TO DECISIONS

1.Purpose.

The primary purpose of this section is to prevent further unlawful use of the property by depriving the guilty party of additional opportunity to misuse it. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

2.Forfeiture.

The forfeiture of a vehicle seized under this statute involves the personal conviction of the offender, and the forfeiture follows as a consequence upon a finding of guilt. Ritter v. Bruce, 239 S.W.2d 449, 1951 Ky. LEXIS 879 ( Ky. 1951 ).

3.Confiscation.

Confiscation of property is only authorized after a conviction of the party alleged to have committed the offense. Singleton v. Commonwealth, 306 Ky. 454 , 208 S.W.2d 325, 1948 Ky. LEXIS 585 ( Ky. 1948 ).

4.Proceeds.

The proceeds from the sale of an automobile taken from one convicted in police court of fourth-class city of violation of the alcoholic beverage control statute, and which was declared contraband under subsection (7) (now (6)) of KRS 244.180 , should have been paid to the state alcoholic beverage control board pursuant to KRS 244.190 . It was not proper to pay it to Circuit Court Clerk pursuant to subsection (4) of this section and the city was not entitled to it under subsection (5) of KRS 26.530 (repealed). Morehead v. Commonwealth, 308 Ky. 391 , 214 S.W.2d 610, 1948 Ky. LEXIS 950 ( Ky. 1948 ).

5.Jurisdiction.

When a person is arrested for illegally possessing or transporting alcoholic beverages in dry territory, in a vehicle, and the vehicle is seized by the arresting officers, the quarterly court has no jurisdiction to try the offense. Ritter v. Bruce, 239 S.W.2d 449, 1951 Ky. LEXIS 879 ( Ky. 1951 ).

Where the defendant was charged with transporting alcoholic beverages for sale in local option territory and the arresting officer took his keys and had the car taken away, the quarterly court had no jurisdiction since forfeiture of the automobile was a possibility. Baldwin v. Commonwealth, 459 S.W.2d 135, 1970 Ky. LEXIS 116 ( Ky. 1970 ).

Cited:

Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ); Bodkins v. Commonwealth, 244 S.W.2d 745, 1951 Ky. LEXIS 1240 ( Ky. 1951 ); Hodge v. Sharpe, 287 S.W.2d 596, 1956 Ky. LEXIS 469 ( Ky. 1956 ); Milliken v. Timms, 336 S.W.2d 596, 1960 Ky. LEXIS 351 ( Ky. 1960 ).

Research References and Practice Aids

Cross-References.

Executions and judicial sales, KRS ch. 426.

Peace officer, when may arrest without warrant, KRS 431.005 .

242.370. Search and seizure.

  1. When an officer or any reputable citizen files an affidavit with any Circuit or District Judge, describing premises or a vehicle, where alcoholic beverages are sold, disposed of or possessed in violation of this chapter, the judge shall by his warrant cause the premises or vehicle to be searched for the detection of any alcoholic beverages which are possessed, or kept for disposition, in violation of this chapter.
  2. Any officer receiving such a warrant shall immediately execute it on the day it is received.
  3. If admission is not given on demand, the officers enforcing the warrant shall force an entrance into the premises or vehicle. If the officer finds that alcoholic beverages are being illegally sold, disposed of or possessed, he shall seize the alcoholic beverages, arrest the keeper or person in charge of the premises, vehicle or alcoholic beverages and carry the person arrested and the alcoholic beverages before the judge that has issued the warrant.
  4. No search warrant as provided for in this section shall be quashed if it and the affidavit on which it is based are sufficient on the face. If the search warrant is quashed no property taken by virtue of it shall be ordered returned unless the person from whose possession the property was taken both alleges and proves that he was in lawful possession of the property.

History. 2554c-34: amend. Acts 1976 (Ex. Sess.), ch. 14, § 221, effective January 2, 1978.

NOTES TO DECISIONS

1.Search Warrant.

Neither the person, premises nor baggage of a person can be lawfully searched or seized without a valid search warrant, following a specific affidavit as its basis. Minx v. Commonwealth, 283 Ky. 14 , 140 S.W.2d 658, 1940 Ky. LEXIS 283 ( Ky. 1940 ).

There is nothing in this section requiring the affidavit to be sworn to before the officer who issues the warrant. Owsley v. Commonwealth, 428 S.W.2d 199, 1968 Ky. LEXIS 707 ( Ky. 1968 ).

A search warrant may be sworn to before a notary public. Owsley v. Commonwealth, 428 S.W.2d 199, 1968 Ky. LEXIS 707 ( Ky. 1968 ).

2.Probable Cause.

The object of an affidavit for a search warrant is to supply written evidence of facts which are such that a reasonably discreet and prudent person would have probable cause for believing that an offense has been committed and evidence material to a prosecution of the offense might be obtained under the search. Commonwealth use of Paintsville v. Melvin, 256 S.W.2d 513, 1953 Ky. LEXIS 747 ( Ky. 1953 ).

Affidavit charging accused only with the offense of selling a specific quantity of whiskey in a restaurant did not afford “probable cause” within the meaning of Ky. Const., § 10 for believing that he possessed whiskey for the purpose of sale in his residence and automobiles which were not mentioned or described in the affidavit. Pigg v. Commonwealth, 299 S.W.2d 796, 1957 Ky. LEXIS 427 ( Ky. 1957 ).

3.— Affidavit.

A search warrant issued upon an oral affidavit would not meet the requirements of this section because it is required that the affidavit be filed with the issuing officer thus search warrant issued on unsigned affidavit was void. Campbell v. Blankenship, 308 Ky. 808 , 215 S.W.2d 960, 1948 Ky. LEXIS 1048 ( Ky. 1948 ).

This section makes it the duty of the justice of the peace to file the affidavit when presented. Wells v. Commonwealth, 329 S.W.2d 210, 1959 Ky. LEXIS 154 ( Ky. 1959 ).

This section does not require a justice of the peace to prepare an affidavit for a search warrant. Wells v. Commonwealth, 329 S.W.2d 210, 1959 Ky. LEXIS 154 ( Ky. 1959 ).

Where a search warrant was issued on the basis of an affidavit made by a person who gave a false name and could not later be located, the affidavit was invalid and the search warrant likewise was invalid. Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

Mere fact that the affiant was charged with failing to qualify as “reputable citizen” because he was only 17 years old, unlettered, and evinced some lack of average intellect was not sufficient showing on the record to quash search warrant on the basis that the warrant was issued on affidavit of one not a “reputable citizen.” Duff v. Commonwealth, 464 S.W.2d 264, 1971 Ky. LEXIS 485 ( Ky. 1971 ).

Question of whether person signing supporting affidavit for search warrant was a reputable citizen was not subject to judicial review. House v. Commonwealth, 466 S.W.2d 949, 1971 Ky. LEXIS 415 ( Ky. 1971 ).

4.— Service.

Search warrant directed “to any sheriff, constable, jailer, marshal or policeman of Harlan County” was properly served by state trooper. Parrott v. Commonwealth, 408 S.W.2d 614, 1966 Ky. LEXIS 120 ( Ky. 1966 ).

5.— Evidence.

Where objection is made to a search and seizure, oral testimony as to the holding of a warrant and search thereunder is insufficient. Minx v. Commonwealth, 283 Ky. 14 , 140 S.W.2d 658, 1940 Ky. LEXIS 283 ( Ky. 1940 ).

In prosecution of officers for murder committed while executing a properly issued search warrant on one who consented to the search, it was error for court to withhold from the jury evidence relating to the warrant notwithstanding the fact that it was issued the day before its execution, and court should have so framed instructions as to advise jury that officers were not attempting an illegal search. Albertson v. Commonwealth, 308 Ky. 294 , 214 S.W.2d 394, 1948 Ky. LEXIS 927 ( Ky. 1948 ).

6.Invalid Seizure.

In view of fact that sheriff was charged with knowledge of law requiring filing of affidavit before issuance of search warrant, and in view of fact that deputy who received information upon which warranty was obtained and who, at direction of sheriff, obtained and executed the warrant, knew that the necessary affidavit was obtained without a valid affidavit, ordinary rule that officer is protected in serving a warrant valid on its face did not apply, and sheriff was liable in damages for wrongful taking and detention of automobile under the warrant; good faith could be regarded only in mitigation of damages. Campbell v. Blankenship, 308 Ky. 808 , 215 S.W.2d 960, 1948 Ky. LEXIS 1048 ( Ky. 1948 ).

Cited:

Gross v. Metcalf, 311 Ky. 616 , 224 S.W.2d 938, 1949 Ky. LEXIS 1210 ( Ky. 1949 ).

Opinions of Attorney General.

Where a search warrant is quashed the court should hold a hearing to determine whether the party defendant is entitled to the return of the alcoholic beverages, during which the burden is on the accused to show legal possession and if he fails to do so they are declared contraband and the court is not required to return them to the accused. OAG 66-94 .

The statutory authority and duty to make a proper and final determination as to whether factual evidence is legally sufficient to issue a search warrant rest solely with circuit or district court officials and not the attorney general’s office. OAG 77-300 .

Research References and Practice Aids

Cross-References.

Peace officer, when may arrest, R.Cr. 2.10.

Kentucky Law Journal.

Rice, Search Warrants Commanding Search of the Person, 41 Ky. L.J. 471 (1953).

242.380. Illegal beverages — No property rights in — Exception — Destruction.

  1. No property rights other than those in the court of appropriate jurisdiction pursuant to KRS 244.195 shall exist in any alcoholic beverages obtained, possessed, held or used in violation of this chapter.
  2. The court, upon conviction of the person arrested, shall order the alcoholic beverages to be destroyed by the sheriff for the county in which the alcoholic beverages were seized.

History. 2554c-27: amend. Acts 1978, ch. 194, § 8, effective June 17, 1978; 1984, ch. 132, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1Jurisdiction.

Since this section causes a contraband alcoholic beverage to lose its character as property a value judgment convicting defendant of offense under local option law does not result in any forfeiture which could constitute an additional penalty creating an excess above the maximum fine of $100 authorized by KRS 242.990 , thus the quarterly court has jurisdiction to try such an offense under local option law when alcoholic beverages in the possession of defendant were seized at the time of the arrest. Milliken v. Timms, 336 S.W.2d 596, 1960 Ky. LEXIS 351 ( Ky. 1960 ).

2Criminal Intent.

The absence of a criminal intent is not a bar to the enforcement of the penalties imposed by the local option law. Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ).

3Penalties.

Where Circuit Court judgment ordering election on sale of 3.2 beer was not appealed from, election was held and licenses were issued for sale of beer, and Court of Appeals then held that statutes did not authorize election in that territory, persons who had sold beer relying on licenses should not be subjected to statutory penalties, notwithstanding their technical liability. Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ).

Cited:

United States v. Robinson, 707 F.2d 872, 1983 U.S. App. LEXIS 28048 (6th Cir. 1983); United States v. Robinson, 763 F.2d 778, 1985 U.S. App. LEXIS 31315 (6th Cir. 1985).

Opinions of Attorney General.

Where alcoholic beverages are taken from a person arrested for operating a motor vehicle while under the influence of intoxicating beverages and such beverage was obtained, possessed, held or used in violation of the local option law, upon conviction of such person the alcoholic beverages are to be destroyed by order of the court. OAG 65-651 .

Research References and Practice Aids

Cross-References.

Title to contraband seized in dry territory vests in court within whose jurisdiction seizure occurred, KRS 244.195 .

242.390. Reputation of defendant admissible in evidence. [Repealed.]

Compiler’s Notes.

This section (2554-c38) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law see Kentucky Rules of Evidence, Rule 404.

242.400. United States license — Possession evidence of guilt. [Repealed]

History. 2554c-39; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified Acts 942, ch. 208, § 1, effective October 1, 1942, from § 2554c-39) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

242.410. Bond for good behavior upon conviction.

  1. On a first or second conviction for violation of any of the provisions of this chapter, the court shall require the defendant, in addition to the penalty provided by subsection (1) of KRS 242.990 , to execute bond of not less than five hundred ($500) nor more than one thousand dollars ($1,000) to be of good behavior for twelve (12) months and not violate any of the provisions of this chapter. If the bond is not executed, the defendant shall be imprisoned in the county jail for sixty (60) days.
  2. The order of the trial court, requiring the execution of the peace bond, shall not be subject to appeal and shall not be considered as punishment.

History. 2554c-29.

NOTES TO DECISIONS

1.Bond for Each Offense.

Where defendant, after conviction on charge of selling whiskey, was confined in jail for 60 days for failure to execute good behavior bond, he was not thereby relieved from requirement of executing a good behavior bond under a second conviction, after his release from jail, on charge of possessing liquor, although offense of possessing liquor was committed on same day as offense of selling liquor. Mears v. Hord, 293 Ky. 176 , 168 S.W.2d 736, 1943 Ky. LEXIS 588 ( Ky. 1943 ).

2.Recovery.

Action to recover on bond given under this section is a civil action, in which the Commonwealth may prove its case by a mere preponderance of the evidence and in which a verdict may be rendered by three-fourths of the jury concurring. Commonwealth v. McKee, 293 Ky. 706 , 170 S.W.2d 340, 1943 Ky. LEXIS 707 ( Ky. 1943 ).

Where circuit court, after conviction of person for violating gaming laws, entered order requiring him to execute bond conditioned upon his keeping the peace and not violating the gaming laws, but clerk, in drawing up bond, erroneously used a form conditioned on compliance with liquor laws, the bond was void, and upon subsequent conviction of person for violating liquor laws no action could be maintained on the bond. Herron v. Commonwealth, 294 Ky. 31 , 170 S.W.2d 861, 1943 Ky. LEXIS 364 ( Ky. 1943 ).

3.Execution.

The time of conviction controls the execution of the bond, not the time of the commission of the offense. Mears v. Hord, 293 Ky. 176 , 168 S.W.2d 736, 1943 Ky. LEXIS 588 ( Ky. 1943 ).

4.Appeal.

An order of a trial court requiring the execution of a peace bond under this section is not subject to appeal. Williams v. Commowealth, 339 S.W.2d 937, 1960 Ky. LEXIS 493 ( Ky. 1960 ).

5.Prohibition.

Although the order for the execution of a peace bond was not appealable, this alone did not warrant prohibition, since the execution of such a bond was not an irreparable injury to the defendant unless he was unable to provide the bond and was faced with imprisonment, in which case he could present appropriate grounds for prohibition pending an appeal of his conviction. Barnes v. Ashcraft, 490 S.W.2d 484, 1973 Ky. LEXIS 632 ( Ky. 1973 ).

Cited:

Castle v. Commonwealth, 239 S.W.2d 451, 1951 Ky. LEXIS 880 ( Ky. 1951 ); Walters v. Wood, 269 S.W.2d 285, 1954 Ky. LEXIS 1003 ( Ky. 1954 ); Commonwealth use of Middlesboro v. Commonwealth, 298 S.W.2d 685, 1957 Ky. LEXIS 382 ( Ky. 1957 ); Bowling v. Commonwealth, 331 S.W.2d 715, 1960 Ky. LEXIS 124 ( Ky. 1960 ).

Opinions of Attorney General.

An appeal taken from an inferior court to the circuit court from a conviction for a violation of the local option law would not stay the order of the inferior court ordering the defendant to execute a peace bond as provided in this section. OAG 71-258 .

Where, at the time the defendant was convicted, she was given a sentence, a fine, and required to post a $1,000 bond for good behavior for 12 months and not to violate the alcoholic beverage laws, upon her conviction for the same offense within 12 months, the bond was valid and enforceable and the proceeding to enforce it would be of a civil nature. OAG 71-311 .

242.420. Witness may not refuse to answer.

No witness before a grand jury, court of inquiry or on a trial for any violation of this chapter shall be permitted to refuse to answer any question because the answer will incriminate him, but this evidence shall not be used against him in any subsequent action and he shall not be prosecuted for any offense disclosed in his testimony.

History. 2554c-36.

NOTES TO DECISIONS

Cited:

Commonwealth v. Brown, 619 S.W.2d 699, 1981 Ky. LEXIS 263 ( Ky. 1981 ), overruled, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ), overruled in part, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ).

242.430. Allegations of indictment.

The indictment charging the commission of an offense under this chapter need not allege that a vote was taken or an election held in the territory where the offense is alleged to have been committed, but it may simply allege that the act charged was committed in dry or moist territory and was a violation of this chapter.

History. 2554c-35: amend. 2013, ch. 121, § 30, effective June 25, 2013.

NOTES TO DECISIONS

1.Proof of Local Option.

Absent some special issue as to the existence of local option, the trial court will take judicial notice of the county’s status in this respect. Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ); Howard v. Commonwealth, 285 Ky. 486 , 148 S.W.2d 336, 1941 Ky. LEXIS 408 ( Ky. 1941 ); Sipple v. Commonwealth, 300 Ky. 725 , 190 S.W.2d 354, 1945 Ky. LEXIS 647 ( Ky. 1945 ).

Penalties

242.990. Penalties.

  1. Any person who violates any of the provisions of this chapter, for which no other penalty is herein provided, shall, for the first offense, be guilty of a Class B misdemeanor; for the second offense, he shall be guilty of a Class A misdemeanor; for the third and each subsequent offense, he shall be guilty of a Class D felony.
  2. Any officer who violates subsection (2) of KRS 242.370 shall be guilty of a violation.

History. 2554c-28, 2554c-32, 2554c-34: amend. Acts 1976 (Ex. Sess.), ch. 14, § 222, effective January 2, 1978; 1992, ch. 463, § 30, effective July 14, 1992.

NOTES TO DECISIONS

1.Purpose.

One purpose of this section is the deterrence of repeated offenses against the local option law. Green v. Commonwealth, 413 S.W.2d 329, 1967 Ky. LEXIS 386 ( Ky. 1967 ).

2.Local Option Law.

The absence of a criminal intent is not a bar to the enforcement of the penalties imposed by a local option law. Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ).

One charged with trafficking in liquor in local option territory must be prosecuted under the local option law, KRS 242.010 to 242.990 . Stroud v. Commonwealth, 291 Ky. 588 , 165 S.W.2d 172, 1942 Ky. LEXIS 289 ( Ky. 1942 ).

Where sole charge against truck operator was transportation of alcoholic beverages without a transporter’s license, in violation of KRS 243.020 , and there was no allegation in the record that the place where the offense occurred was in local option territory, the provisions of the local option law with reference to confiscation of property used in illegal liquor traffic could not be invoked, nor could jurisdiction of quarterly court to try the offense be determined by provisions of local option law. Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ).

In prosecution under local option law this section rather than KRS 25.010 (repealed) governs. Crabtree v. Commonwealth, 278 S.W.2d 732, 1955 Ky. LEXIS 491 ( Ky. 1955 ).

3.— Invalid Election.

Where circuit court judgment ordering election on sale of 3.2 beer was not appealed from, election was held and licenses were issued for sale of beer, and Court of Appeals then held that statutes did not authorize election in that territory, persons who had sold beer relying on licenses should not be subjected to statutory penalties, notwithstanding their technical liability. Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ).

4.Jurisdiction.

Since KRS 242.380 causes contraband alcoholic beverage to lose its character as property a judgment convicting defendant of offense under local option law does not result in any forfeiture which could constitute an additional penalty creating an excess above the maximum fine of $100 authorized by this section, thus the quarterly court has jurisdiction to try such an offense under local option law when alcoholic beverages in the possession of defendant were seized at the time of the arrest. Milliken v. Timms, 336 S.W.2d 596, 1960 Ky. LEXIS 351 ( Ky. 1960 ).

5.Indictment.

Conviction for third offense was improper because indictment was fatally defective in that, though charging that the second offense was committed and conviction had thereon prior to the commission of the third offense, it failed to charge that the second offense was committed subsequent to the commission of and conviction for the first offense. Denham v. Commonwealth, 311 Ky. 320 , 224 S.W.2d 180, 1949 Ky. LEXIS 1147 ( Ky. 1949 ).

Where the indictment did not aver the crime charged in the second count was committed prior to the commission and conviction of the crime charged in the third count it was fatally defective in charging a felony. Gossett v. Commonwealth, 295 S.W.2d 338, 1956 Ky. LEXIS 158 ( Ky. 1956 ). See Gossett v. Commonwealth, 302 S.W.2d 380, 1957 Ky. LEXIS 192 ( Ky. 1957 ).

6.Information.

Since the prescribed punishment under this section, consisting of a fine and imprisonment in the county jail, was not considered “infamous,” the prosecution could proceed by way of information rather than indictment. Commonwealth v. Hope, 492 S.W.2d 207, 1973 Ky. LEXIS 512 ( Ky. 1973 ).

7.Successive Violations.

Prosecution for repetitive violations of local option laws are governed by this section rather than KRS 25.010 (repealed) and the circuit court properly prohibited county judge from proceeding in such actions where fines of from $100 to $500 were sought. Crowder v. Schlitz Brewing Co., 295 Ky. 822 , 175 S.W.2d 1003, 1943 Ky. LEXIS 355 ( Ky. 1943 ).

The indictment, the evidence, and the instructions should make it clear that the commission and conviction of the second crime were subsequent to the commission of the first and the commission of the third crime was after the commission and conviction of the second. Gossett v. Commonwealth, 302 S.W.2d 380, 1957 Ky. LEXIS 192 ( Ky. 1957 ); Sherley v. Commonwealth, 322 S.W.2d 124, 1959 Ky. LEXIS 300 ( Ky. 1959 ).

Conviction of a third offense under this section may be had notwithstanding the second conviction was had in the quarterly court whose jurisdiction is limited to the imposition of a fine of not more than $100 and 60 days in jail. Defendant cannot complain that the additional penalty for the second offense was not imposed. Spears v. Commonwealth, 399 S.W.2d 693, 1966 Ky. LEXIS 473 ( Ky. 1966 ).

This section provides more severe penalties for successive convictions for violation of the local option law and a number of offenses as well as a number of prior convictions are properly chargeable in the indictment. Brown v. Commonwealth, 422 S.W.2d 715, 1967 Ky. LEXIS 43 ( Ky. 1967 ).

Where the order book containing a 1952 judgment of conviction against the defendant was not signed until the trial for the 1970 violation, the judgment was sufficient for the enhanced penalty of subsection (1) of this section to be imposed. Spears v. Commonwealth, 462 S.W.2d 931, 1971 Ky. LEXIS 565 ( Ky. 1971 ).

The increased punishment authorized by statute for a third violation is predicated upon the showing of the two (2) previous convictions and it is not material that the sentence imposed for the previous convictions was improper or that a jail sentence, if imposed thereon, was not served. Baker v. Commonwealth, 465 S.W.2d 305, 1971 Ky. LEXIS 464 ( Ky. 1971 ).

While the burden is on the Commonwealth under KRS 242.230 to prove that the prior crimes and the one with which the defendant is now charged were committed successively after each conviction, where the second conviction recited in an indictment was itself an earlier conviction under the enhancement provision for a third offense, the determination of successiveness had already been made at a prior trial and proof that such trial resulted in conviction was sufficient to support enhancement of the penalty. Owsley v. Commonwealth, 556 S.W.2d 451, 1977 Ky. App. LEXIS 818 (Ky. Ct. App. 1977).

In a prosecution for causing whiskey to be delivered to law enforcement officers, where the jury returned a guilty verdict and, on the basis of prior 1976 local option law conviction, defendant received the maximum enhanced sentence of 120 days in jail and a $200 fine under subsection (1) of this section, the action of circuit court, which on appeal found error in admission of the unsigned prior convictions, but instead of granting a new trial, directed the District Court to enter a new order, sentencing movant to 60 days and a $100 fine, was erroneous as in doing so, the Circuit Court improperly attempted to divine the intent of the district court jury. Carver v. Commonwealth, 634 S.W.2d 418, 1982 Ky. LEXIS 262 ( Ky. 1982 ).

8.— Felony.

When the Legislature prescribed a penalty of confinement in the penitentiary for the third offense, it placed this crime in the category of a felony. Stratton v. Commonwealth, 263 S.W.2d 99, 1953 Ky. LEXIS 1234 (Ky. Ct. App. 1953).

9.Evidence.

When liquor is discovered on premises not owned by the accused there must be some evidence of substance “connecting” the accused with it. Marcum v. Commonwealth, 411 S.W.2d 462, 1967 Ky. LEXIS 474 ( Ky. 1967 ).

Proof that liquor was sold at a time when the defendant was absent from Kentucky was not sufficient to destroy the inference that the establishment was “doing business as usual” with the full knowledge and consent of the defendant in violation of the local option law. Edwards v. Commonwealth, 429 S.W.2d 859, 1968 Ky. LEXIS 763 ( Ky. 1968 ).

10.Instructions.

Where the accused is indicted as a second offender of a similar misdemeanor and there is evidence supporting the accusation, the instructions should permit the jury to return three possible verdicts: (1) not guilty; (2) guilty of the particular or principal offense charged; or (3) guilty of a second or third violation of the law as the case may be. Tuttle v. Commonwealth, 331 S.W.2d 891, 1959 Ky. LEXIS 11 ( Ky. 1959 ), overruled, Etherton v. Commonwealth, 335 S.W.2d 899, 1960 Ky. LEXIS 288 ( Ky. 1960 ).

Instruction requiring finding that appellant had committed a prime offense and that he had been convicted of local option offenses on two other occasions but failing to permit a finding that he had been guilty of a similar offense only one time before held erroneous. Marcum v. Commonwealth, 398 S.W.2d 886, 1966 Ky. LEXIS 518 ( Ky. 1966 ), overruled, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ).

Where indictment charged illegal sale of alcoholic beverages it was error to instruct on the illegal possession of liquor for the purpose of sale. Spears v. Commonwealth, 399 S.W.2d 693, 1966 Ky. LEXIS 473 ( Ky. 1966 ).

Where the defendant’s entire defense was based upon the tenet that she had no knowledge whatever that liquor was being maintained on her premises and that it was brought there without her knowledge or consent, the failure of the court to affirmatively instruct the jury so as to encompass this theory of defense was error. Edwards v. Commonwealth, 429 S.W.2d 859, 1968 Ky. LEXIS 763 ( Ky. 1968 ).

11.Improper Sentence.

Convictions for illegally trafficking in alcoholic beverages under this section will be upheld even though only fines were imposed while the section requires a jail sentence. Woods v. Commonwealth, 472 S.W.2d 491, 1971 Ky. LEXIS 198 ( Ky. 1971 ).

12.Appeal.

Although quarterly courts have concurrent jurisdiction with Circuit Courts of offenses under the local option law, appeal from judgment of conviction in quarterly court must be to circuit court and not directly to Court of Appeals. Bryant v. Commonwealth, 297 Ky. 513 , 180 S.W.2d 414, 1944 Ky. LEXIS 762 ( Ky. 1944 ).

Where a notice of appeal was filed in the Circuit Court on the date the Circuit Court’s order was entered but no notice was filed in the Court of Appeals or served on the other parties and the record was not filed within 30 days, the motion for appeal was overruled. Embry v. Commonwealth, 423 S.W.2d 523, 1968 Ky. LEXIS 486 ( Ky. 1968 ).

Where defendant was seeking to prohibit the Circuit Court from trying him on an indictment under this section on the ground that his prior conviction was in a magistrate court and therefore void, prohibition did not lie since, in the event that the defendant was unsuccessful in persuading the Circuit Court to strike this count of the indictment, defendant had an adequate remedy by way of appeal to the Court of Appeals. Barnes v. Ashcraft, 490 S.W.2d 484, 1973 Ky. LEXIS 632 ( Ky. 1973 ).

Cited:

Holt v. Commonwealth, 283 Ky. 138 , 140 S.W.2d 1013, 1940 Ky. LEXIS 302 ( Ky. 1940 ); Howard v. Commonwealth, 285 Ky. 486 , 148 S.W.2d 336, 1941 Ky. LEXIS 408 ( Ky. 1941 ); Strunk v. Commonwealth, 302 Ky. 284 , 194 S.W.2d 504, 1946 Ky. LEXIS 649 ( Ky. 1946 ); Singleton v. Commonwealth, 306 Ky. 454 , 208 S.W.2d 325, 1948 Ky. LEXIS 585 ( Ky. 1948 ); Ennis v. Commonwealth, 308 Ky. 208 , 214 S.W.2d 104, 1948 Ky. LEXIS 903 ( Ky. 1948 ); Albertson v. Commonwealth, 308 Ky. 294 , 214 S.W.2d 394, 1948 Ky. LEXIS 927 (Ky. 1948); Scott v. Commonwealth, 311 Ky. 419 , 224 S.W.2d 458, 1949 Ky. LEXIS 1165 ( Ky. 1949 ); Bentley v. Moore, 239 S.W.2d 237, 1951 Ky. LEXIS 865 ( Ky. 1951 ); Ritter v. Bruce, 239 S.W.2d 449, 1951 Ky. LEXIS 879 ( Ky. 1951 ); Blankenship v. Commonwealth, 247 S.W.2d 504, 1952 Ky. LEXIS 707 ( Ky. 1952 ); Hancock v. Commonwealth, 262 S.W.2d 670, 1953 Ky. LEXIS 1110 ( Ky. 1953 ); Barkley v. Commonwealth, 264 S.W.2d 297, 1953 Ky. LEXIS 124 8 ( Ky. 1953 ); Walters v. Wood, 269 S.W.2d 285, 1954 Ky. LEXIS 1003 ( Ky. 1954 ); McBride v. Commonwealth, 279 S.W.2d 772, 1955 Ky. LEXIS 536 ( Ky. 1955 ); Carroll v. Commonwealth, 294 S.W.2d 938, 1956 Ky. LEXIS 149 ( Ky. 1956 ); Gossett v. Commonwealth, 295 S.W.2d 338, 1956 Ky. LEXIS 158 ( Ky. 1956 ); Johnson v. Commonwealth, 296 S.W.2d 210, 1956 Ky. LEXIS 186 (Ky. 1956); Commonwealth use of Middlesboro v. Commonwealth, 298 S.W.2d 685, 1957 Ky. LEXIS 382 ( Ky. 1957 ); Collins v. Commonwealth, 317 S.W.2d 873, 1958 Ky. LEXIS 107 ( Ky. 1958 ); Milby v. Commonwealth, 318 S.W.2d 55, 1958 Ky. LEXIS 128 ( Ky. 1958 ); Bowling v. Commonwealth, 331 S.W.2d 715, 1960 Ky. LEXIS 124 ( Ky. 1960 ); Hobbs v. Commonwealth, 335 S.W.2d 952, 1960 Ky. LEXIS 307 ( Ky. 1960 ); Buckley v. Commonwealth, 383 S.W.2d 349, 1964 Ky. LEXIS 33 ( Ky. 1964 ); Perkins v. Commonwealth, 383 S.W.2d 916, 1964 Ky. LEXIS 67 ( Ky. 1964 ); Helvey v. Commonwealth, 396 S.W.2d 780, 1965 Ky. LEXIS 123 ( Ky. 1965 ); Rodgers v. Commonwealth, 399 S.W.2d 299, 1966 Ky. LEXIS 458 ( Ky. 1966 ); Spears v. Commonwealth, 399 S.W.2d 693, 1966 Ky. LEXIS 473 ( Ky. 1966 ); Green v. Commonwealth, 400 S.W.2d 206, 1966 Ky. LEXIS 419 (Ky. 1966); Gossett v. Commonwealth, 402 S.W.2d 857, 1966 Ky. LEXIS 389 (Ky. 1966); Patterson v. Commonwealth, 411 S.W.2d 940, 1967 Ky. LEXIS 498 ( Ky. 1967 ); Arnold v. Commonwealth, 421 S.W.2d 366, 1967 Ky. LEXIS 59 ( Ky. 1967 ); Satterly v. Commonwealth, 437 S.W.2d 929, 1968 Ky. LEXIS 170 ( Ky. 1968 ); United States v. Jones, 533 F.2d 1387, 1976 U.S. App. LEXIS 12113 (6th Cir. 1976), cert. denied, 431 U.S. 964, 97 S. Ct. 2919, 53 L. Ed. 2d 1059, 1977 U.S. LEXIS 2346 (1977); Howard v. Commonwealth, 558 S.W.2d 643, 1977 Ky. App. LEXIS 857 (Ky. Ct. App. 1977); Luna v. Commonwealth, 571 S.W.2d 88, 1977 Ky. App. LEXIS 929 (Ky. Ct. App. 1977); Bell v. Commonwealth, 566 S.W.2d 785, 1978 Ky. App. LEXIS 529 (Ky. Ct. App. 1978).

Opinions of Attorney General.

The police court of a fifth-class city has jurisdiction in local option cases. OAG 63-754 .

A judge of the police court of a fourth-class city can probate the jail sentence in a local option violation case so long as he follows the provisions of KRS 439.550 . OAG 66-84 .

In local option violations where the quarterly court and justices of the peace have concurrent jurisdiction, the quarterly court should try the case if that was the court before which the defendant was first brought. OAG 67-39 .

The justice court has no authority, where a second or third offense is involved, to reduce the charge to a first offense. OAG 70-623 .

The justices’ courts only have jurisdiction of the first offense under this section. OAG 70-623 .

This section provides a mandatory jail sentence and a fine for natural persons pleading guilty to or who are convicted of a violation of KRS 242.230 , but the justice court may, under KRS 439.550 , probate the jail sentence, provided that the requirements of the latter statute are met. OAG 70-623 .

Since the quarterly court has no jurisdiction in “second offense” cases, the quarterly court has no jurisdiction or authority to pass on any preliminary motion in such a case. OAG 71-119 .

The quarterly court has no jurisdiction of second offense cases involving violations of KRS ch. 242. OAG 71-119 .

An inferior court may probate a defendant as a first or second offender under subsection (1) of this section by suspending judgment as to the fine and the jail sentence provided that all the stautory conditions of KRS 439.550 are met. OAG 72-221 .

This section limits the jurisdiction of inferior courts to the first offenses arising under this chapter. OAG 72-677 (modifying OAG 72-221 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, §§ 9.36A — 9.38.

CHAPTER 243 Alcoholic Beverages — Licenses and Taxes

243.010. Definitions for chapter and for KRS 243.720 to 243.850. [Repealed.]

Compiler’s Notes.

This section (2554b-98, 4281c-1, 4281c-28: amend. Acts 1944, ch. 154, §§ 11, 12; 1980, ch. 188, § 228, effective July 15, 1980; 1982, ch. 390, § 11, effective June 1, 1982; 1996, ch. 95, § 1, effective July 15, 1996) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

243.015. Definitions for chapter.

As used in this chapter, unless the context otherwise requires, the words and terms defined in KRS 241.010 have the meaning given to them in KRS 241.010 .

History. Enact. Acts 2000, ch. 435, § 7, effective July 14, 2000.

Licenses to Traffic in Alcoholic Beverages

243.020. License required — Federal license presumptions — Operator of unlicensed place not to permit drinking — Alcoholic beverages not purchased from licensee disallowed on licensed premises — Licenses permitted in moist territory.

  1. A person shall not do any act authorized by any kind of license with respect to the manufacture, storage, sale, purchase, transporting, or other traffic in alcoholic beverages unless the person holds or is an independent contractor, agent, servant, or employee of a person who holds the kind of license that authorizes the act, or is a third party utilized by a direct shipper licensee as set forth in KRS 243.027 .
  2. The holding of any permit from the United States government to traffic in alcoholic beverages without the corresponding requisite state and local licenses shall in all cases raise a rebuttable presumption that the holder of the United States permit is unlawfully trafficking in alcoholic beverages.
  3. Except as permitted by KRS 243.033 , 243.036 , 243.155 , 243.157 , and 243.260 , a person, conducting a place of business patronized by the public, who is not a licensee authorized to sell alcoholic beverages, shall not permit any person to sell, barter, loan, give away, or drink alcoholic beverages on the premises of the place of business.
  4. A licensee shall not permit any consumer to possess, give away, or drink alcoholic beverages on the licensed premises that are not purchased from the licensee.
  5. In a moist territory, the only types of licenses that may be issued are those that directly correspond with the types of sales approved by the voters through moist elections within the territory, unless otherwise specifically authorized by statute.

History. 2554b-150, 2554b-153, 2554b-165, 2554b-194: amend. Acts 1978, ch. 194, § 9, effective June 17, 1978; 1996, ch. 44, § 4, effective July 15, 1996; 1998, ch. 121, § 8, effective July 15, 1998; 2013, ch. 121, § 44, effective June 25, 2013; 2017 ch. 62, § 29, effective June 29, 2017; 2019 ch. 201, § 3, effective April 9, 2019; 2020 ch. 80, § 14, effective July 15, 2020; 2021 ch. 13, § 4, effective March 12, 2021.

NOTES TO DECISIONS

1.Constitutionality.

The provisions of the alcoholic beverage control law forbidding the transportation of liquor by carriers other than licensed common carriers, and forbidding distillers to deliver to an unauthorized carrier, are not invalid under the commerce clause, or the due process and equal protection clauses, of the federal constitution, as applied to a contract motor carrier, licensed as such under federal law, desiring to transport liquor from Kentucky to other states in interstate commerce. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (U.S. 1939).

Licensees, inasmuch as they benefit by the law under which the licenses are issued, cannot question its constitutionality. Stein v. Kentucky State Tax Com., 266 Ky. 469 , 99 S.W.2d 443, 1936 Ky. LEXIS 687 ( Ky. 1936 ).

The right to sell liquor is not a privilege which a state is forbidden to abridge, nor does the regulation of the sale of liquor, of itself, deny equal protection or due process. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

2.Application.

One charged with trafficking in liquor in local option territory must be prosecuted under the local option law, KRS 242.010 to 242.990 . Stroud v. Commonwealth, 291 Ky. 588 , 165 S.W.2d 172, 1942 Ky. LEXIS 289 ( Ky. 1942 ).

This section is general in the scope of its application. Miller v. Commonwealth, 300 Ky. 215 , 187 S.W.2d 837, 1945 Ky. LEXIS 812 ( Ky. 1945 ).

The alcoholic beverage control law is directed to those who are engaged in commerce, and require a license before they may engage in the liquor business. Blair v. Commonwealth, 334 S.W.2d 924, 1960 Ky. LEXIS 244 ( Ky. 1960 ).

3.Possession.

Neither this section nor KRS 242.230 makes mere possession of intoxicating liquor an offense, but possession must be to traffic therein in some way. Roberts v. Commonwealth, 284 Ky. 31 , 143 S.W.2d 856, 1940 Ky. LEXIS 439 ( Ky. 1940 ).

The possession of an excess quantity of liquor on unlicensed business premises raises prima facie a presumption of illegally keeping and storing liquor which, in the absence of opposing or explanatory evidence, is deemed sufficient to establish guilt. Henry v. Commonwealth, 312 Ky. 491 , 228 S.W.2d 32, 1950 Ky. LEXIS 684 ( Ky. 1950 ).

It is not the purpose of the section to prohibit the possession of beverage liquors for consumption. Henry v. Commonwealth, 312 Ky. 491 , 228 S.W.2d 32, 1950 Ky. LEXIS 684 ( Ky. 1950 ).

4.Storage.

No license is required for the keeping or storing of alcoholic beverages off business premises. Henry v. Commonwealth, 312 Ky. 491 , 228 S.W.2d 32, 1950 Ky. LEXIS 684 ( Ky. 1950 ).

5.Transportation.

Legislature, under police power, could forbid anyone to transport liquor within state without first obtaining permit from alcoholic beverage control board. Commonwealth v. Williams, 287 Ky. 489 , 153 S.W.2d 985, 1941 Ky. LEXIS 569 ( Ky. 1941 ).

On trial for transporting alcoholic beverages without a license, defendant, who was not the owner of the car, is entitled to instruction on his theory of the case, that he had no knowledge of the liquor being in the car. Patrick v. Commonwealth, 286 Ky. 265 , 150 S.W.2d 901, 1941 Ky. LEXIS 262 ( Ky. 1941 ).

The legislature did not intend to require every person in both wet and dry territory to obtain a transporter’s license before he could carry the liquor which he had legally purchased, to his home or anywhere else. Blair v. Commonwealth, 334 S.W.2d 924, 1960 Ky. LEXIS 244 ( Ky. 1960 ).

6.Jurisdiction.

Where sole charge against truck operator was transportation of alcoholic beverages without a transporter’s license, in violation of this section, and there was no allegation in the record that the place where the offense occurred was in local option territory, the provisions of the local option law with reference to confiscation of property used in illegal liquor traffic could not be invoked, nor could jurisdiction of quarterly court to try the offense be determined by provisions of local option law. Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ).

Quarterly court did not have jurisdiction of prosecution in which it was sought to impose fine upon defendant for transporting beer without a transporter’s license, and to forfeit defendant’s truck and cargo, since value of truck and cargo sought to be forfeited must be considered as part of the penalty, thus making total penalty in excess of the limit of criminal jurisdiction of the quarterly court fixed by KRS 25.010 (repealed). Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ).

7.Indictment.

An indictment for an offense under this section must allege the names of the purchaser or state that their names are known to the grand jury. Dillon v. Commonwealth, 328 S.W.2d 147, 1959 Ky. LEXIS 92 ( Ky. 1959 ).

8.Evidence.

Testimony of field agents that they bought whiskey at establishment, and owner’s admission that he had federal permit but not corresponding state and local licenses, was sufficient to establish guilt of trafficking in whiskey, and authorize revocation of beer license. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

Evidence which did not show that accused had possession of intoxicating liquor for any of the purposes prohibited by either this section or KRS 242.230 , was insufficient as matter of law to show violation of such sections. Roberts v. Commonwealth, 284 Ky. 31 , 143 S.W.2d 856, 1940 Ky. LEXIS 439 ( Ky. 1940 ).

9.Presumption of Trafficking.

Where the proof introduced before the board rebutted the statutory presumption that applicant was unlawfully trafficking in alcoholic beverages, the objection raised to evidence the issuance of these licenses was proven to be without merit. O'Sullivan v. Portwood, 309 S.W.2d 773, 1958 Ky. LEXIS 365 ( Ky. 1958 ).

10.Instructions.

Instruction that the holding of a federal permit to traffic in alcoholic beverages, without holding a state permit, raises a prima facie presumption that the state law is being violated, was prejudicial and constituted reversible error, since it is improper to instruct the jury on the weight of the evidence. Mabe v. Commonwealth, 279 Ky. 432 , 130 S.W.2d 805, 1939 Ky. LEXIS 288 ( Ky. 1939 ).

11.Hearing for Unsuccessful Applicants.

An applicant for a liquor license does not have a legitimate claim or entitlement to a license before it is issued; thus nonsuccessful applicants are not entitled to a due process-type hearing before the administrator or board. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

Cited:

Reeves v. Bell, 285 Ky. 300 , 147 S.W.2d 711, 1941 Ky. LEXIS 378 ( Ky. 1941 ); Commonwealth v. Kiddy, 292 Ky. 34 , 165 S.W.2d 969, 1942 Ky. LEXIS 27 ( Ky. 1942 ); Stroud v. Commonwealth, 295 Ky. 694 , 175 S.W.2d 368, 1943 Ky. LEXIS 333 ( Ky. 1943 ); Crab Orchard Distilling Co. v. Commonwealth, 304 Ky. 483 , 201 S.W.2d 203, 1947 Ky. LEXIS 667 ( Ky. 1947 ); Morehead v. Commonwealth, 308 Ky. 391 , 214 S.W.2d 610, 1948 Ky. LEXIS 950 ( Ky. 1948 ); Dunbar v. Alcoholic Beverage Control Board, 309 Ky. 70 , 216 S.W.2d 42, 1948 Ky. LEXIS 1071 ( Ky. 1948 ); Bickett v. Palmer-Ball, 470 S.W.2d 341, 1971 Ky. LEXIS 27 6 ( Ky. 1971 ); Jack Walker Trucking Service, Inc. v. Strong, 488 S.W.2d 689, 1972 Ky. LEXIS 50 ( Ky. 1972 ); Commonwealth, Alcoholic Beverage Control Board v. Lexington Johnnie’s, Inc., 553 S.W.2d 694, 1977 Ky. LEXIS 478 ( Ky. 1977 ).

Opinions of Attorney General.

Where a woman purchased 10 cases of beer for her personal use out of local option territory and was stopped by state police on her way back into local option territory and searched, the statute would not apply. OAG 63-436 .

The serving of wine by a hospital to a patient in his room at the evening meal is not within the prohibition of subsection (3) of this section. OAG 68-379 .

Subsection (4) of this section applies only to the possession of distilled spirits or wine on business premises and does not prohibit or restrict the possession or manufacture of alcoholic beverages for personal consumption. OAG 69-588 .

The proprietor of a place of business located in dry territory open to the public cannot permit patrons to consume alcoholic beverages on his premises. OAG 70-686 .

This chapter concerns itself with the regulation and sale of alcoholic beverages in a wet territory. OAG 72-216 .

KRS 243.700 (repealed) prohibited the playing of poker for personal winnings on premises licensed to sell alcoholic beverages and any license issued under KRS 243.020 to 243.670 must be revoked or suspended for that cause. OAG 75-127 .

A private country club located in “dry” territory may not establish a bar and sell alcoholic beverages solely to its members. OAG 75-208 .

An employee of a beer distributor who is the joint survivorship owner with his wife of real property where she, as licensee, operates a saloon and package liquor store, but who is not an employee of his wife as licensee, is not prohibited by Regulation 804 KAR 5:020 from going upon the premises to make repairs, paint or for some other lawful purpose. OAG 75-623 .

Where an applicant complies with the requirements of this chapter, and the regulations promulgated thereunder by the alcoholic beverage control board, a license may be properly issued. OAG 78-665 .

A county fiscal court could enact an ordinance prohibiting the sale and consumption of alcoholic beverages on licensed business premises in that county. OAG 80-599 .

Where a proper license has been correctly issued, a person may consume alcoholic beverages on the premises where purchased. OAG 83-464 .

There is no statute or administrative regulation which prohibits the sale or consumption of alcoholic beverages, under a license issued pursuant to KRS Chapter 243, on premises owned by the county and leased to an individual for the purpose of operating a restaurant. OAG 83-464 .

Research References and Practice Aids

Cross-References.

Alcoholic beverages — Administration and control, KRS ch. 241.

Alcoholic beverages — Local option, KRS ch. 242.

Alcoholic beverages — Prohibitions, restrictions and regulations, KRS ch. 244.

Alcoholism, KRS ch. 222.

Cash receipts to be paid into state treasury, KRS 41.070 .

Entertainment places, KRS ch. 231.

Excise taxes, KRS ch. 138.

License and excise taxes, amount realized from to go into general fund, KRS 47.010 .

License taxes, KRS ch. 137.

Privilege or franchise, every grant of subject to revocation or alteration, Const., § 3.

Public health, KRS Title XVIII.

Revenue and taxation, KRS Title XI.

243.025. Fees to be used for administration and enforcement of alcoholic beverage laws.

  1. All of the fees paid into the State Treasury for state licenses shall be credited to a revolving trust and agency account, as provided in KRS 45.253 , for the Department of Alcoholic Beverage Control.
  2. All fees associated with the department’s server training program shall be collected on a cost recovery basis and shall be credited to the revolving trust and agency account established under subsection (1) of this section.
  3. These moneys shall be used solely for the administration and enforcement of KRS Chapters 241 to 244. The moneys in the account shall not lapse at the close of the fiscal year.

HISTORY: Enact. Acts 1994, ch. 312, § 1, effective July 15, 1994; 1998, ch. 518, § 3, effective April 13, 1998; 2004, ch. 20, § 3, effective July 13, 2004; 2010, ch. 24, § 561, effective July 15, 2010; 2017 ch. 62, § 30, effective June 29, 2017.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. V, H, 1 at 941.

243.027. KRS 243.027 to 243.029 supersedes any conflicting provision of KRS Chapters 241 to 244 — Licensing of direct shippers of alcoholic beverages — Duties of direct shipper licensees — Administrative regulations — Use of third parties to ship — Shipping of samples.

  1. KRS 243.027 to 243.029 shall supersede any conflicting statute in KRS Chapters 241 to 244.
  2. A direct shipper license shall authorize the holder to ship alcoholic beverages to consumers. The department shall issue a direct shipper license to a successful applicant that:
    1. Pays an annual license fee of one hundred dollars ($100);
    2. Is a manufacturer located in this state or any other state or an alcoholic beverage supplier licensed under KRS 243.212 or 243.215 ; and
    3. Holds a current license, permit, or other authorization to manufacture or supply alcoholic beverages in the state where the applicant is located. If an applicant is located outside of Kentucky, proof of its current license, permit, or other authorization as issued by its home state shall be sufficient proof of its eligibility to hold a direct shipper license in Kentucky.
    1. A manufacturer applicant shall only be authorized to ship alcoholic beverages that are sold under a brand name owned or exclusively licensed to the manufacturer, provided the alcoholic beverages were: (3) (a) A manufacturer applicant shall only be authorized to ship alcoholic beverages that are sold under a brand name owned or exclusively licensed to the manufacturer, provided the alcoholic beverages were:
      1. Produced by the manufacturer;
      2. Produced for the manufacturer under a written contract with another manufacturer; or
      3. Bottled for or by the manufacturer.
    2. An applicant licensed under KRS 243.212 or 243.215 shall only be authorized to ship alcoholic beverages for which it is the primary source of supply.
  3. The department shall establish the form for a direct shipper license application through the promulgation of an administrative regulation. These requirements shall include only the following:
    1. The address of the manufacturer or supplier; and
    2. If the applicant is located outside this state, a copy of the applicant’s current license, permit, or other authorization to manufacture, store, or supply alcoholic beverages in the state where the applicant is located.
  4. For purposes of this section, the holder of a direct shipper license may utilize the services of a third party to fulfill shipments, subject to the following:
    1. The third party shall not be required to hold any alcoholic beverage license, but no licensed entity shall serve as a third party to fulfill shipments other than the holder of a storage license or transporter’s license;
    2. The third party may operate from the premises of the direct shipper licensee or from another business location; and
    3. The direct shipper licensee shall be liable for any violation of KRS 242.250 , 242.260 , 242.270 , or 244.080 that may occur by the third party.
  5. A direct shipper licensee shall:
    1. Agree that the Secretary of State shall serve as its registered agent for service of process. The licensee shall agree that legal service on the agent constitutes legal service on the direct shipper licensee;
    2. Maintain the records required under KRS 243.027 to 243.029 and provide the department and the Department of Revenue access to or copies of these records;
    3. Allow the department or the Department of Revenue to perform an audit of the direct shipper licensee’s records or an inspection of the direct shipper licensee’s licensed premises upon request. If an audit or inspection reveals a violation, the department or the Department of Revenue may recover reasonable expenses from the licensee for the cost of the audit or inspection;
    4. Register with the Department of Revenue, and file all reports and pay all taxes required under KRS 243.027 to 243.029 ; and
    5. Submit to the jurisdiction of the Commonwealth of Kentucky for any violation of KRS 242.250 , 242.260 , 242.270 , or 244.080 or for nonpayment of any taxes owed.
    1. Each direct shipper licensee shall submit to the department and the Department of Revenue a quarterly report for that direct shipper license showing: (7) (a) Each direct shipper licensee shall submit to the department and the Department of Revenue a quarterly report for that direct shipper license showing:
      1. The total amount of alcoholic beverages shipped into the state per consumer;
      2. The name and address of each consumer;
      3. The purchase price of the alcoholic beverages shipped and the amount of taxes charged to the consumer for the alcoholic beverages shipped; and
      4. The name and address of each common carrier.
    2. The Department of Revenue shall create a form through the promulgation of an administrative regulation for reporting under paragraph (a) of this subsection.
    3. The department shall provide a list of all active direct shipper licensees to licensed common carriers on a quarterly basis to reduce the number of unlicensed shipments in the Commonwealth.
  6. A direct shipper licensee shall submit a current copy of its alcoholic beverage license from its home state along with the one hundred dollar ($100) license fee every year upon renewal of its direct shipper license.
  7. Notwithstanding any provision of this section to the contrary, a manufacturer located and licensed in Kentucky may ship by a common carrier holding a Kentucky transporter’s license samples of alcoholic beverages produced by the manufacturer in quantities not to exceed one (1) liter of any particular product in one (1) calendar year of distilled spirits or wine, or ninety-six (96) ounces of any particular product in one (1) calendar year of malt beverages, to the following:
    1. Marketing or media representatives twenty-one (21) years of age or older;
    2. Distilled spirits, wine, or malt beverage competitions or contests;
    3. Wholesalers or distributors located outside of Kentucky;
    4. Federal, state, or other regulatory testing labs; and
    5. Third-party product formulation and development partners.

Such samples shall be marked by affixing across the product label, a not readily removed disclaimer with the words “Sample-Not for Sale” and the name of the manufacturer.

HISTORY: 2020 ch. 80, § 1, effective July 15, 2020; 2021 ch. 13, § 1, effective March 12, 2021.

243.028. Limitations on shipments of alcoholic beverages by direct shipper licensees — Notice and labeling requirements — Recipient age verification and signature required — Penalty for consumer who attempts illegal receipt — Shipping mode requirements.

  1. A direct shipper licensee may sell or ship to a consumer all types of alcoholic beverages that the licensee is authorized to sell, with the following aggregate limits:
    1. Distilled spirits, in quantities not to exceed ten (10) liters per consumer per month;
    2. Wine, in quantities not to exceed ten (10) cases per consumer per month; and
    3. Malt beverages, in quantities not to exceed ten (10) cases per consumer per month.
  2. The direct shipper licensee shall notify the consumer placing the order that the shipment shall not be left unless the recipient of the shipment provides a valid identification document at the time verifying that the recipient is at least twenty-one (21) years of age. All alcoholic beverage containers shipped to the consumer shall be conspicuously labeled with the words “CONTAINS ALCOHOL: SIGNATURE OF PERSON AGE 21 OR OLDER REQUIRED FOR DELIVERY”.
  3. At the time of delivery, the recipient of the shipment shall present to the individual delivering the package a valid identification document. Prior to transferring possession of the package, the individual delivering the package shall visually inspect the document and verify the identity of the recipient and, by visual examination or by using age verification technology, that the recipient is at least twenty-one (21) years of age.
  4. Before transferring possession of the package, the individual delivering the package shall obtain the signature of the recipient of the shipment. The individual who receives and signs for the alcoholic beverages is not required to be the consumer who purchased the alcoholic beverages.
  5. A consumer who intentionally causes shipment to an address deemed unlawful shall, for the first offense, be guilty of a violation punishable by a fine of two hundred fifty dollars ($250), and for each subsequent offense, be guilty of a violation punishable by a fine of five hundred dollars ($500). In this instance, the direct shipper licensee and the common carrier shall be held harmless.
  6. A direct shipper licensee may not sell or ship alcoholic beverages to a consumer from its licensed premises if the consumer’s address is located in an area in which alcoholic beverages may not be sold or received.
  7. Shipments made pursuant to this section shall be made through a common carrier.
  8. If a common carrier is unable to complete delivery, then the alcoholic beverages shall be returned to the consignor.

HISTORY: 2020 ch. 80, § 2, effective July 15, 2020; 2021 ch. 13, § 2, effective March 12, 2021.

243.029. Taxes on sales of alcoholic beverages owed by direct shipper licensees.

  1. For purposes of this section, “taxes” associated with the purchase of alcoholic beverages includes any applicable:
    1. Sales tax;
    2. Use tax;
    3. Excise tax;
    4. Wholesale tax equivalent as established in KRS 243.884 ;
    5. Regulatory license fees; and
    6. Other assessments.
  2. For purposes of this section and for other tax purposes, each sale and delivery of alcoholic beverages under a direct shipper license is a sale occurring at the address of the consumer. For each tax remittance or collected group of tax remittances, the direct shipper licensee shall include its federal tax identification number.
  3. Except for the regulatory license fee imposed under KRS 243.075 , the applicable taxes shall be collected by the direct shipper licensee from the consumer. The regulatory license fee and all other applicable taxes shall be separately stated on the invoice, bill of sale, or similar document given to the consumer.
  4. The amount of the taxes to be paid by the direct shipper licensee under this section shall be calculated based on the sale of the alcoholic beverages occurring at the location identified as the consumer’s address on the shipping label.
  5. For taxes owed by a direct shipper licensee under this section, the direct shipper licensee shall meet the standards of the destination state, including filing a return that contains its license number and federal tax identification number.

HISTORY: 2020 ch. 80, § 3, effective July 15, 2020; 2021 ch. 13, § 5, effective March 12, 2021; 2021 ch. 156, § 26, effective July 1, 2021.

Legislative Research Commission Notes.

(7/1/2021). This statute was amended by 2021 Ky. Acts. chs. 13 and 156, which do not appear to be in conflict and have been codified together.

243.030. Distilled spirits and wine licenses — Kinds — Fees.

The following licenses that authorize traffic in distilled spirits and wine may be issued by the distilled spirits administrator. Licenses that authorize traffic in all alcoholic beverages may be issued by both the distilled spirits administrator and malt beverages administrator. The licenses and their accompanying fees are as follows:

  1. Distiller’s license:
    1. Class A, per annum  . . . . . $3,090.00
    2. Class B (craft rectifier), per annum  . . . . . $1,000.00
  2. Rectifier’s license:
    1. Class A, per annum  . . . . . $2,580.00
    2. Class B (craft distillery), per annum  . . . . . $825.00
  3. Winery license, per annum  . . . . . $1,030.00
  4. Small farm winery license, per annum  . . . . . $110.00
    1. Small farm winery off-premises retail license, per annum  . . . . . $30.00
  5. Wholesaler’s license, per annum  . . . . . $2,060.00
  6. Quota retail package license, per annum  . . . . . $570.00
  7. Quota retail drink license, per annum  . . . . . $620.00
  8. Transporter’s license, per annum  . . . . . $210.00
  9. Special nonbeverage alcohol license, per annum  . . . . . $60.00
  10. Special agent’s or solicitor’s license, per annum  . . . . . $30.00
  11. Bottling house or bottling house storage license, per annum  . . . . . $1,030.00
  12. Special temporary license, per event  . . . . . $100.00
  13. Special Sunday retail drink license, per annum  . . . . . $520.00
  14. Caterer’s license, per annum  . . . . . $830.00
  15. Special temporary distilled spirits and wine auction license, per event  . . . . . $100.00
  16. Extended hours supplemental license, per annum  . . . . . $2,060.00
  17. Hotel in-room license, per annum  . . . . . $210.00
  18. Air transporter license, per annum  . . . . . $520.00
  19. Sampling license, per annum  . . . . . $110.00
  20. Replacement or duplicate license  . . . . . $25.00
  21. Entertainment destination center license:
    1. When the licensee is a city, county, urban-county government, consolidated local government, charter county government, or unified local government, per annum  . . . . . $2,577.00
    2. All other licensees, per annum  . . . . . $7,730.00
  22. Limited restaurant license, per annum  . . . . . $780.00
  23. Limited golf course license, per annum  . . . . . $720.00
  24. Small farm winery wholesaler’s license, per annum  . . . . . $110.00
  25. Qualified historic site license, per annum  . . . . . $1,030.00
  26. Nonquota type 1 license, per annum  . . . . . $4,120.00
  27. Nonquota type 2 license, per annum  . . . . . $830.00
  28. Nonquota type 3 license, per annum  . . . . . $310.00
  29. Distilled spirits and wine storage license, per annum  . . . . . $620.00
  30. Out-of-state distilled spirits and wine supplier’s license, per annum  . . . . . $1,550.00
  31. Limited out-of-state distilled spirits and wine supplier’s license, per annum  . . . . . $260.00
  32. Authorized public consumption license, per annum  . . . . . $250.00
  33. Direct shipper license, per annum  . . . . . $100.00
  34. A nonrefundable fee of sixty dollars ($60) shall be charged to process each new transitional license pursuant to KRS 243.045 .
  35. Other special licenses the board finds necessary for the proper regulation and control of the traffic in distilled spirits and wine and provides for by administrative regulation. In establishing the amount of license taxes that are required to be fixed by the board, it shall have regard for the value of the privilege granted.
  36. The fee for each of the first five (5) supplemental bar licenses shall be the same as the fee for the primary retail drink license. There shall be no charge for each supplemental license issued in excess of five (5) to the same licensee at the same premises.

A nonrefundable application fee of fifty dollars ($50) shall be charged to process each new application under this section, except for subsections (4), (8), (9), (10), (12), (15), (19), and (20) of this section. The application fee shall be applied to the licensing fee if the license is issued; otherwise it shall be retained by the department.

History. 2554b-114, 2554b-126, 2554b-127: amend. Acts 1948, ch. 101; 1972, ch. 335, § 1; 1976, ch. 381, § 3; 1978, ch. 194, § 10, effective June 17, 1978; 1978, ch. 432, § 2, effective June 17, 1978; 1980, ch. 395, § 2, effective July 15, 1980; 1990, ch. 54, § 3, effective July 13, 1990; 1990, ch. 219, § 2, effective July 13, 1990; 1992, ch. 196, § 2, effective July 14, 1992; 1996, ch. 44, § 3, effective July 15, 1996; 1996, ch. 95, § 3, effective July 15, 1996; 1998, ch. 518, § 1, effective April 13, 1998; 2000, ch. 69, § 2, effective March 6, 2000; 2000, ch. 182, § 1, effective July 14, 2000; 2000, ch. 435, § 8, effective July 14, 2000; 2002, ch. 346, § 217, effective July 15, 2002; 2004, ch. 20, § 4, effective July 13, 2004; 2006, ch. 79, § 2, effective July 12, 2006; 2006, ch. 179, § 7, effective January 1, 2007; 2007, ch. 99, § 3, effective June 26, 2007; 2010, ch. 24, § 562, effective July 15, 2010; 2013, ch. 121, § 45, effective June 25, 2013; 2014, ch. 22, § 3, effective July 15, 2014; 2016 ch. 80, § 4, effective July 15, 2016; 2017 ch. 62, § 31, effective June 29, 2017; 2018 ch. 21, § 1, effective July 14, 2018; 2018 ch. 21, § 1, effective July 14, 2018; 2020 ch. 80, § 5, effective July 15, 2020.

NOTES TO DECISIONS

1.Retail Drink License.

“Retail drink license,” as used in the alcoholic beverage control act, is not a generic term, and it does not include a special license. Pendennis Club v. Alcoholic Beverage Control Board, 287 Ky. 49 , 151 S.W.2d 438, 1941 Ky. LEXIS 484 ( Ky. 1941 ).

2.Distiller’s License.

A distilling company leasing the premises of another company which has paid a distiller’s license is nevertheless also liable for a distiller’s license, even though the owner of the plant actually does the distilling. Logan v. Greenbrier Distilling Co., 286 Ky. 319 , 150 S.W.2d 673, 1941 Ky. LEXIS 245 ( Ky. 1941 ).

3.Wholesaler’s License.

The license issued by the state under this section to engage in the wholesale liquor business grants to the holder of such a license the incidental right to transport such beverages as he is authorized to sell from his licensed place of business only to licensed retailers, in his own trucks, and in the manner prescribed. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

Where KRS 243.030(43) (now 243.030(24)) creates a new small farm winery wholesaler’s license, and KRS 243.154 states that a small farm winery wholesaler’s licensee may purchase, receive, store or possess wine produced by small farm winery licensees, and may sell the wine at wholesale from its licensed premises, the amended version of KRS 243.110 appears to resolve the matter of discrimination against out-of-state wineries. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

The small farm winery wholesaler’s license scheme under KRS 243.030(43) (now 243.030(24)) and KRS 243.154 and the at-cost distribution program for wholesalers under KRS 260.175 replace the self-distribution privilege under former KRS 243.155 (d); small farm wineries will be able to market their wines to retail package and retail drink license holders through a licensed wholesaler or a small farm winery wholesaler at an at-cost rate. As all small farm wineries must go through some form of wholesale mechanism to make retail package and retail drink sales, there is no constitutional violation. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

4.Fee.

Where contract between distillers for purchase of whiskey designated transaction as a lease, solely for purpose of complying with internal revenue regulations, but was not in fact a lease, and purchaser did not operate plant or exercise any control over it, he was not required to pay a permit fee. Esbeco Distilling Co. v. Shannon, 278 Ky. 689 , 129 S.W.2d 172, 1939 Ky. LEXIS 482 ( Ky. 1939 ).

5.Assignment of Permit.

A permit granted to owner of distillery is a personal privilege, and cannot be assigned to lessee. Shannon v. Esbeco Distilling Corp., 275 Ky. 51 , 120 S.W.2d 745, 1938 Ky. LEXIS 362 ( Ky. 1938 ), overruled, Logan v. Greenbrier Distilling Co., 286 Ky. 319 , 150 S.W.2d 673, 1941 Ky. LEXIS 245 ( Ky. 1941 ), overruled in part, Adams v. Littell's Adm'rs, 286 Ky. 248 , 150 S.W.2d 678, 1941 Ky. LEXIS 246 ( Ky. 1941 ).

6.Double Taxation.

To require a corporation engaged in distilling liquors to pay both the tax imposed on corporations for engaging in business, and the annual permit fee imposed on distillers, is not “double taxation.” Shannon v. Esbeco Distilling Corp., 275 Ky. 51 , 120 S.W.2d 745, 1938 Ky. LEXIS 362 ( Ky. 1938 ), overruled, Logan v. Greenbrier Distilling Co., 286 Ky. 319 , 150 S.W.2d 673, 1941 Ky. LEXIS 245 ( Ky. 1941 ), overruled in part, Adams v. Littell's Adm'rs, 286 Ky. 248 , 150 S.W.2d 678, 1941 Ky. LEXIS 246 ( Ky. 1941 ).

7.City License Tax.

The city exceeded its power by amending its ordinance and attempting to impose a license tax on duly authorized wholesale liquor dealers located in other parts of the state for the privilege of transporting into the city and delivering to licensed retailers therein, the alcoholic beverages, which, under the permits issued by the state, such wholesalers had the right to sell on their premises and transport to their customers. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

Cited:

Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (1939); Kenton Distributing Co. v. Alcoholic Beverage Control Board, 297 Ky. 666 , 181 S.W.2d 64, 1944 Ky. LEXIS 797 ( Ky. 1944 ); Crab Orchard Distilling Co. v. Commonwealth, 304 Ky. 483 , 201 S.W.2d 203, 1947 Ky. LEXIS 667 ( Ky. 1947 ); K. Whiskey Store, Inc. v. Shearer, 276 S.W.2d 457, 1955 Ky. LEXIS 424 ( Ky. 1955 ); Kentucky Beer Wholesalers’ Asso. v. George Wiedemann Brewing Co., 302 S.W.2d 606, 1957 Ky. LEXIS 204 ( Ky. 1957 ); Blair v. Commonwealth, 334 S.W.2d 924, 1960 Ky. LEXIS 244 ( Ky. 1960 ); Newport v. Tye, 335 S.W.2d 340, 1960 Ky. LEXIS 257 ( Ky. 1960 ); Kentucky Alcoholic Beverage Control Board v. Anheuser-Busch, Inc., 574 S.W.2d 344, 1978 Ky. App. LEXIS 624 (Ky. Ct. App. 1978).

Opinions of Attorney General.

The legislative body of any city in which traffic in alcoholic beverages is permitted may impose a license fee or fees for the privilege of trafficking in such beverages corresponding to the fees set out in this section and KRS 243.040 . OAG 71-137 .

An officer of a corporation holding a Kentucky wholesaler’s liquor license must have a solicitor’s license to solicit sales from licensed retailers. OAG 75-65 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Tavern and Driver by Pedestrian Struck by Intoxicated Driver on Sidewalk, Failure to Keep Control of Vehicle, Form 135.06.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Minor Against Liquor Store That Sold Liquor to Minor Who Subsequently Had One Car Accident, Form 132.04.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Third Party Against Liquor Store That Sold Liquor to Minor Who Caused Automobile Accident, Form 132.02.

243.0305. Souvenir package sales by licensed distillers — Payment of taxes — Direct transfer of souvenir packages to distillery visitors and consumers — Direct shipment to visitors — Availability of souvenir packages to Kentucky licensed wholesalers — Sampling and sale of alcoholic beverages on premises of distillery — Sale of alcoholic beverages by the drink at certain events — Sale of products in collaboration with a brewer.

  1. Any licensed Kentucky distiller that is located in wet territory or in any precinct that has authorized the limited sale of alcoholic beverages at distilleries under KRS 242.1243 and that has a gift shop or other retail outlet on its premises may conduct the activities permitted under this section as a part of its distiller’s license.
    1. For purposes of all retail drink and package sales that occur pursuant to subsection (3), (8), or (9) of this section, the distillery shall: (2) (a) For purposes of all retail drink and package sales that occur pursuant to subsection (3), (8), or (9) of this section, the distillery shall:
      1. Be permitted to transfer its products from the distillery proper to the location where those sales occur without having to transfer physical possession of those distilled spirits to a licensed wholesaler; and
      2. Effective January 1, 2022, without otherwise reporting those distilled spirits to a licensed wholesaler, report and pay all taxes required to the Department of Revenue at the time and in the manner required by the Department of Revenue in accordance with its powers under KRS 131.130(3).
      1. Effective January 1, 2022, a distiller selling distilled spirits in accordance with this subsection shall pay all wholesale sales taxes due under KRS 243.884 . For the purposes of this subsection, “wholesale sales” means a sale of distilled spirits made by a distiller under subsection (3)(b), (8), and (9) of this section, if required by KRS 243.884 . (b) 1. Effective January 1, 2022, a distiller selling distilled spirits in accordance with this subsection shall pay all wholesale sales taxes due under KRS 243.884. For the purposes of this subsection, “wholesale sales” means a sale of distilled spirits made by a distiller under subsection (3)(b), (8), and (9) of this section, if required by KRS 243.884.
      2. Effective January 1, 2022, a distiller shall pay the excise tax on distilled spirits in accordance with KRS 243.720 and 243.730 .
    2. All other distilled spirits that are produced by the distillery shall be sold and physically transferred in compliance with all other relevant provisions of KRS Chapters 241 to 244.
  2. A distiller may sell souvenir packages at retail:
    1. To consumers in accordance with KRS 243.027 to 243.029 if it holds a direct shipper license; and
    2. To distillery visitors of legal drinking age, in quantities not to exceed an aggregate of four and one-half (4-1/2) liters per purchaser per day for sales prior to January 1, 2021, and in quantities not to exceed an aggregate of nine (9) liters per purchaser per day on and after January 1, 2021.
  3. Hours of sale for souvenir packages sold to distillery visitors at retail shall be in conformity with KRS 244.290(3).
  4. Except as provided in this section, souvenir package sales to distillery visitors shall be governed by all the statutes and administrative regulations governing the retail sale of distilled spirits by the package.
  5. Souvenir packages sold to distillery visitors under subsection (3)(b) of this section shall be registered with the department pursuant to KRS 244.440 and made available to a Kentucky licensed wholesaler.
  6. Notwithstanding any provision of KRS 244.050 to the contrary, a distillery holding a sampling license may allow visitors to sample distilled spirits under the following conditions:
    1. Sampling shall be permitted only on the licensed premises during regular business hours;
    2. A distillery shall not charge for the samples; and
    3. A distillery shall not provide more than one and three-fourths (1-3/4) ounces of samples per visitor per day.
  7. Notwithstanding the provisions of KRS 243.110 , in accordance with this section, a distillery located in wet territory or in any territory that has authorized the limited sale of alcoholic beverages under an election held pursuant to KRS 242.1243 may:
    1. Hold an NQ2 retail drink license for the sale of alcoholic beverages on the distillery premises; and
    2. Employ persons to engage in the sale or service of alcohol under an NQ2 license, if each employee completes the department’s Server Training in Alcohol Regulations program within thirty (30) days of beginning employment.
  8. A distiller may sell to consumers at fairs, festivals, and other similar types of events located in wet territory alcoholic beverages by the drink, containing spirits distilled or bottled on the premises of the distillery.
  9. A distiller may offer for sale in its gift shop products that were produced in collaboration with a brewer or microbrewer except that:
    1. These packages shall not be exclusive to the distiller’s gift shop; and
    2. The distiller shall purchase the jointly branded souvenir package only from a licensed malt beverage distributor.
  10. Except as expressly stated in this section, this section does not exempt the holder of a distiller’s license from:
    1. The provisions of KRS Chapters 241 to 244;
    2. The administrative regulations of the board; and
    3. Regulation by the board at all the distiller’s licensed premises.
  11. Nothing in this section shall be construed to vitiate the policy of this Commonwealth supporting an orderly three (3) tier system for the production and sale of alcoholic beverages.

History. Enact. Acts 1996, ch. 95, § 2, effective July 15, 1996; 1998, ch. 53, § 1, effective July 15, 1998; 2003, ch. 102, § 1, effective June 24, 2003; 2013, ch. 121, § 46, effective June 25, 2013; 2016 ch. 80, § 5, effective July 15, 2016; 2018 ch. 164, § 1, effective April 13, 2018; 2020 ch. 80, § 15, effective July 15, 2020; 2020 ch. 102, § 2, effective July 15, 2020; 2021 ch. 13, § 12, effective March 12, 2021.

Legislative Research Commission Notes.

(7/15/2020). This statute was amended by 2020 Ky. Acts chs. 80 and 102, which do not appear to be in conflict and have been codified together.

(7/15/2016). A reference to “KRS 243.895 ” in this statute has been changed in codification to read “KRS 243.890 .” In 2016 Ky. Acts ch. 80, sec. 5, subsection (8)(b)2. refers to “tax collections imposed pursuant to KRS 243.710 to 243.895 .” It is obvious from the context that the citation of this range should not include the final section, KRS 243.895, which is a statute on an unrelated topic. Under the authority of KRS 7.136(1), the Reviser of Statutes has inserted the correct reference.

243.0307. Sampling license — Sampling and sale of alcoholic beverages on premises of licensed retailer.

  1. A sampling license may be issued to the holder of:
    1. A quota retail drink license;
    2. A quota retail package license;
    3. A nonquota retail malt beverage package license;
    4. An NQ1 license;
    5. An NQ2 license;
    6. An NQ4 retail malt beverage drink license; or
    7. A distiller’s license.
  2. A sampling license shall authorize the licensee to allow customers to sample, free of charge, distilled spirits, wine, and malt beverages under the following conditions:
    1. Sampling shall be permitted only on licensed premises and by licensees holding a sampling license, during regular business hours;
    2. A distillery shall provide samples as authorized by KRS 243.0305 ;
    3. All other licensees shall limit a customer to:
      1. One (1) ounce of distilled spirits samples per day;
      2. Six (6) ounces of wine samples per day; or
      3. Twelve (12) ounces of malt beverage samples per day; and
    4. A brewer, microbrewery, or out-of-state malt beverage supplier may conduct a sampling of malt beverages as permitted by this section at the licensed premises of a retailer licensee holding a sampling license.
  3. Retailers holding a sampling license shall:
    1. Notify the Department of Alcoholic Beverage Control at least seven (7) days in advance of conducting a free sampling event; and
    2. Limit a sampling event to a period not to exceed four (4) consecutive hours between 12 noon and 8 p.m.
  4. In addition to free sampling, a quota retail package licensee holding a sampling license may also sell sample distilled spirits and wine under the following conditions:
    1. Paid samples may be sold only on licensed premises and by licensees holding a sampling license, during regular business hours; and
    2. A licensee shall limit a customer to purchased samples totaling no more than:
      1. Two (2) ounces of distilled spirits per day; and
      2. Nine (9) ounces of wine per day.
  5. A quota retail package licensee holding both a sampling license and a nonquota retail malt beverage package license may also sell samples of malt beverages under the following conditions:
    1. Paid samples may be sold only on licensed premises and by licensees holding a sampling license, during regular business hours;
    2. A licensee shall limit a customer to no more than sixteen (16) ounces of malt beverages per day; and
    3. The retail price of a sample shall not be less than a licensee’s purchase cost of the sample.
  6. No customer shall be allowed to receive a combination of free and purchased samples totaling more than:
    1. Two (2) ounces of distilled spirits per day; and
    2. Nine (9) ounces of wine per day.
  7. Free and paid samples provided under this section shall not constitute drink sales.

HISTORY: 2017 ch. 62, § 28, effective June 29, 2017; 2020 ch. 102, § 12, effective July 15, 2020.

243.031. Winery licenses. [Repealed]

History. Enact. Acts 1976, ch. 381, § 1; 1990, ch. 54, § 4, effective July 13, 1990; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1976, ch. 381, § 1; 1990, ch. 54, § 4, effective July 13, 1990) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

243.032. Restaurant wine license. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 432, § 1, effective June 17, 1978; 2012, ch. 125, § 3, effective July 12, 2012) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.033. Caterer’s license.

  1. A caterer’s license may be issued as a supplementary license to a caterer that holds a quota retail package license, a quota retail drink license, an NQ1 license, an NQ2 license, or a limited restaurant license.
  2. The caterer’s license may be issued as a primary license to a caterer in any wet territory or in any moist territory under KRS 242.1244 for the premises that serves as the caterer’s commissary and designated banquet hall. No primary caterer’s license shall authorize alcoholic beverage sales at a premises that operates as a restaurant. The alcoholic beverage stock of the caterer shall be kept under lock and key at the licensed premises during the time that the alcoholic beverages are not being used in conjunction with a catered function.
  3. The caterer’s license shall authorize the caterer to:
    1. Purchase and store alcoholic beverages in the manner prescribed in KRS 243.088 , 243.250 , and 244.260 ;
    2. Transport, sell, serve, and deliver alcoholic beverages by the drink at locations away from the licensed premises or at the caterer’s designated banquet hall in conjunction with the catering of food and alcoholic beverages for a customer and the customer’s guests, in:
      1. Cities and counties established as moist territory under KRS 242.1244 if the receipts from the catering of food at any catered event are at least seventy percent (70%) of the gross receipts from the catering of both food and alcoholic beverages;
      2. Wet cities and counties in which quota retail drink licenses are not available if the receipts from the catering of food at any catered event are at least fifty percent (50%) of the gross receipts from the catering of both food and alcoholic beverages; or
      3. All other wet territory if the receipts from the catering of food at any catered event are at least thirty-five percent (35%) of the gross receipts from the catering of both food and alcoholic beverages;
    3. Receive and fill telephone orders for alcoholic beverages in conjunction with the ordering of food for a catered event; and
    4. Receive payment for alcoholic beverages served at a catered event on a by-the-drink, cash bar, or by-the-event basis. The caterer may bill the customer for by-the-function sales of alcoholic beverages in the usual course of the caterer’s business.
  4. A caterer licensee shall not cater alcoholic beverages at locations for which retail alcoholic beverage licenses or special temporary licenses have been issued. A caterer licensee may cater a fundraising event for which a special temporary alcoholic beverage auction license has been issued under KRS 243.036 .
  5. A caterer licensee shall not cater alcoholic beverages on Sunday except in territory in which the Sunday sale of alcoholic beverages is permitted under the provisions of KRS 244.290 and 244.480 .
  6. A caterer licensee shall not cater alcoholic beverages at an event hosted by the caterer licensee or hosted as a joint venture of the caterer licensee.
  7. The location at which alcoholic beverages are sold, served, and delivered by a caterer, pursuant to this section, shall not constitute a public place for the purpose of KRS Chapter 222. If the location is a multi-unit structure, only the unit or units at which the function being catered is held shall be excluded from the public place provisions of KRS Chapter 222.
  8. The caterer licensee shall post a copy of the licensee’s caterer’s license at the location of the function for which alcoholic beverages are catered.
  9. All restrictions and prohibitions applying to a quota retail drink licensee and an NQ4 retail malt beverage drink licensee not inconsistent with this section shall apply to the caterer licensee.
  10. The caterer licensee shall maintain records as set forth in KRS 244.150 and in administrative regulations promulgated by the board.
  11. Notwithstanding subsection (3)(b) of this section, a caterer may serve alcoholic beverages to guests who are twenty-one (21) years of age or older at a private event in dry territory if:
    1. The alcoholic beverages were lawfully purchased in a wet or moist territory:
      1. By an individual; or
      2. At the caterer’s licensed premises in wet or moist territory; and
    2. The alcoholic beverages are not sold in dry territory to guests at the private residence or private event regardless of whether the venue is a public place.

HISTORY: Enact. Acts 1992, ch. 196, § 1, effective July 14, 1992; 2016 ch. 80, § 6, effective July 15, 2016; 2017 ch. 62, § 33, effective June 29, 2017; 2019 ch. 201, § 4, effective April 9, 2019.

243.034. Business authorized by limited restaurant license within wet territory or certain moist precincts — Prohibition against sale of alcohol without meal — Package sales prohibited.

  1. A limited restaurant license may be issued to an establishment meeting the definition criteria established in KRS 241.010(36) as long as the establishment is within:
    1. Any wet territory; or
    2. Any moist precinct that has authorized the sale of alcoholic beverages under KRS 242.1244 .
  2. A limited restaurant license shall authorize the licensee to purchase, receive, possess, and sell alcoholic beverages at retail by the drink for consumption on the licensed premises or off-premises consumption pursuant to KRS 243.081 . The licensee shall purchase alcoholic beverages only from licensed wholesalers or distributors. The license shall not authorize the licensee to sell alcoholic beverages by the package.
  3. The holder of a limited restaurant license shall maintain at least seventy percent (70%) of its gross receipts from the sale of food and maintain the minimum applicable seating requirement required for the type of limited restaurant license.
  4. A limited restaurant as defined by KRS 241.010(36)(a) shall:
    1. Only sell alcoholic beverages incidental to the sale of a meal; and
    2. Not have an open bar and shall not sell alcoholic beverages to any person who has not purchased or does not purchase a meal.

History. Enact. Acts 2013, ch. 121, § 37, effective June 25, 2013; 2014, ch. 22, § 5, effective July 15, 2014; 2016 ch. 80, § 7, effective July 15, 2016; 2017 ch. 62, § 34, effective June 29, 2017; 2020 ch. 80, § 6, effective July 15, 2020; 2021 ch. 20, § 2, effective March 15, 2021.

243.0341. Proposal of ordinance authorizing by the drink sales of alcoholic beverages in restaurants and dining facilities containing seating for at least fifty persons — Qualifications — Conditions — Limited effect of ordinance.

  1. Notwithstanding any other provision of law, any city or county that conducted an election under KRS 242.1244(2) prior to January 1, 2016, for by the drink sales of alcoholic beverages in restaurants and dining facilities seating one hundred (100) persons or more or any city with limited sale precincts created pursuant to KRS 242.1292 may elect to act under this section.
  2. Upon a determination by the legislative body of a city or county that:
    1. An economic hardship exists within the city or county; and
    2. Expanded sales of alcoholic beverages by the drink could aid in economic growth;

      the city or county may, after conducting a public hearing that is noticed to the public in accordance with the KRS Chapter 424, adopt an ordinance authorizing by the drink sales of alcoholic beverages in restaurants and dining facilities containing seating for at least fifty (50) persons and meeting the requirements of subsection (3) of this section.

  3. The ordinance enacted by a city or county pursuant to subsection (2) of this section shall authorize the sale of alcoholic beverages under the following limitations:
    1. Sales shall only be conducted in restaurants and other dining facilities meeting the requirements of KRS 241.010(36)(a); and
    2. The provisions of KRS 243.034 shall apply to any restaurant or dining facility operating under a license issued pursuant to this section.
  4. A city or county acting under this section may allow limited restaurant sales as defined in KRS 241.010(36).
  5. The enactment of an ordinance under this section shall not:
    1. Modify the city’s or county’s ability to issue a limited restaurant license to restaurants or other dining facilities meeting the requirements of KRS 241.010(36)(b); or
    2. Affect, alter, or otherwise impair any license previously issued to a restaurant or dining facility meeting the requirements of KRS 241.010(36)(b).

HISTORY: 2016 ch. 80, § 3, effective July 15, 2016; 2017 ch. 62, § 35, effective June 29, 2017; 2020 ch. 80, § 7, effective July 15, 2020.

243.035. Bottling house or bottling house storage license.

The distilled spirits administrator may issue a bottling house or bottling house storage license only to persons who are authorized under this chapter to store or warehouse distilled spirits or wine. The bottling house or bottling house storage license shall authorize the licensee to bottle and store distilled spirits on the premises designated in the license. The holder of a bottling house or bottling house storage license may also hold a distilled spirits and wine storage license.

HISTORY: Enact. Acts 1944, ch. 154, § 31; 1998, ch. 518, § 7, effective April 13, 1998; 2013, ch. 121, § 48, effective June 25, 2013; 2017 ch. 62, § 36, effective June 29, 2017.

243.036. Special temporary distilled spirits and wine auction license.

  1. A special temporary alcoholic beverage auction license may be issued to a charitable or nonprofit organization.
  2. A special temporary alcoholic beverage auction license shall authorize the holder to:
    1. Purchase, transport, receive, possess, store, sell, and deliver alcoholic beverages to be sold by auction or raffle or consumed at charity or nonprofit events;
    2. Purchase, transport, receive, possess, store, sell, and deliver limited specially labeled bottles of alcoholic beverages to be sold at charity or nonprofit events;
    3. Obtain alcoholic beverages from distillers, rectifiers, wineries, small farm wineries, brewers, microbreweries, wholesalers, distributors, retailers, or any other person, by gift or donation, for the purpose of charity or nonprofit events; and
    4. Receive payment for alcoholic beverages sold at events.
  3. Each alcoholic beverage auction or raffle conducted by a charitable organization shall be subject to all restrictions and limitations contained in KRS Chapters 241 to 244 and the administrative regulations issued under those chapters and shall be authorized only on the days and only during the hours that the sale of alcoholic beverages is otherwise authorized in the county or municipality.
  4. The location at which the alcoholic beverages are auctioned, raffled, or consumed under this section shall not constitute a public place for the purpose of KRS Chapter 222. Charitable or nonprofit events may be conducted on licensed or unlicensed premises. The charitable organization possessing a special temporary alcoholic beverage auction license shall post a copy of the license at the location of the event.
  5. A special temporary alcoholic beverage auction license shall not be issued for any period longer than thirty (30) days.
  6. Notwithstanding any other provision of KRS Chapters 241 to 244, a distiller, rectifier, winery, small farm winery, brewer, microbrewery, wholesaler, distributor, or retailer may donate, give away, or deliver any of its products to a charitable or nonprofit organization possessing a special temporary alcoholic beverage auction license under this section.
  7. All restrictions and prohibitions applying to an alcoholic beverage retail package and alcoholic beverage by the drink license, not inconsistent with this section, shall apply to a special temporary alcoholic beverage auction license.

HISTORY: Enact. Acts 1996, ch. 44, § 1, effective July 15, 1996; 1998, ch. 518, § 8, effective April 13, 1998; 2010, ch. 24, § 563, effective July 15, 2010; 2013, ch. 121, § 49, effective June 25, 2013; 2016 ch. 80, § 8, effective July 15, 2016; 2017 ch. 62, § 37, effective June 29, 2017.

243.037. Supplemental bar license — Main bar and service bars — Fees.

  1. Except as where specifically authorized by statute, a retailer licensed to sell distilled spirits or wine by the drink shall only be permitted to sell or serve distilled spirits and wine by the drink at one (1) main bar, counter, or similar contrivance at the licensed premises.
  2. A retailer may have necessary service bars, if they are not located in any room in which the members or guests or patrons of the place are invited or permitted to come. No distilled spirits or wine shall be served at service bars.
  3. A supplemental bar license shall authorize the licensee to sell and serve distilled spirits and wine by the drink at retail from an additional location other than the main bar. A supplemental bar license is a nonquota license and shall not be transferable to other premises.
  4. The

    fee for a supplemental license shall be the same as the fee for the primary license authorizing retail distilled spirits and wine drink sales for each of up to five (5) supplemental bar licenses. There shall be no fee for each supplemental license issued in excess of five (5) to the same licensee at the same premises.

  5. A license authorizing retail malt beverage sales, by the drink or by the package, authorizes the licensee to sell and serve malt beverages at any location on the licensed premises without obtaining a supplemental bar license.

HISTORY: Enact. Acts 2004, ch. 20, § 1, effective July 13, 2004; 2006, ch. 179, § 8, effective January 1, 2007; 2013, ch. 121, § 50, effective June 25, 2013; 2017 ch. 62, § 38, effective June 29, 2017.

Legislative Research Commission Note.

(6/25/2013). 2013 Ky. Acts ch. 121, sec. 50, made changes to subsection (3) of this statute. It is apparent from consultation with the drafter, examination of the bill folder, and from context that the second use of the phrase “sell and serve malt beverages” should have been deleted from subsection (3), now subsection (5). The Reviser of Statutes has deleted the phrase “may sell and serve malt beverages” under the authority of KRS 7.136 .

243.038. Agreement of golf course to comply with the provisions of KRS Chapter 344.

  1. The Department of Alcoholic Beverage Control shall not issue a license to an applicant authorized to apply for a license to sell alcoholic beverages by the drink under KRS 243.039 unless the applicant and the golf course, if different from the applicant, agree to voluntarily comply with the provisions of KRS Chapter 344, whether or not the applicant and the golf course would otherwise be covered by the provisions of KRS Chapter 344.
  2. The department shall revoke or suspend any license issued under KRS 243.039 if the department or the Kentucky Commission on Human Rights makes a finding that the applicant or the golf course, if different from the applicant, has violated a requirement specified in this section.

History. Repealed, reenact., and amend., Acts 2013, ch. 121, § 12, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 242.1232 .

243.039. Business authorized by limited golf course license within wet territory or certain moist precincts — Package sales prohibited.

  1. A limited golf course license may be issued to an establishment that is a nine (9) or an eighteen (18) hole golf course that meets United States Golf Association criteria as a regulation golf course as long as the establishment is within:
    1. Any wet territory; or
    2. Any moist precinct that has specifically authorized the sale of distilled spirits, wine, and malt beverages at that establishment under KRS 242.123 .
  2. A limited golf course license shall authorize the licensee to purchase, receive, possess, and sell distilled spirits, wine, and malt beverages at retail by the drink for consumption on the licensed premises. The licensee shall purchase distilled spirits, wine, and malt beverages only from licensed wholesalers or distributors. The license shall not authorize the licensee to sell distilled spirits, wine, and malt beverages by the package.

History. Enact. Acts 2013, ch. 121, § 38, effective June 25, 2013.

243.040. Malt beverage licenses — Kinds — Fees.

The following kinds of malt beverage licenses may be issued by the malt beverages administrator, the fees for which shall be:

  1. Brewer’s license, per annum  . . . . . $2,580.00
  2. Microbrewery license, per annum  . . . . . $520.00
  3. Distributor’s license, per annum  . . . . . $520.00
  4. Nonquota retail malt beverage package license, per annum  . . . . . $210.00
  5. Out-of-state malt beverage supplier’s license, per annum  . . . . . $1,550.00
  6. Malt beverage storage license, per annum  . . . . . $260.00
  7. Replacement or duplicate license, per annum  . . . . . $25.00
  8. Limited out-of-state malt beverage supplier’s license, per annum  . . . . . $260.00
  9. Nonquota type 4 malt beverage drink license, per annum  . . . . . $210.00
  10. Direct shipper license, per annum  . . . . . $100.00
  11. The holder of a nonquota retail malt beverage package license may obtain a Nonquota type 4 malt beverage drink license for a fee of fifty dollars ($50). The holder of a Nonquota type 4 malt beverage drink license may obtain a nonquota retail malt beverage package license for a fee of fifty dollars ($50).
  12. A nonrefundable fee of sixty dollars ($60) shall be charged to process each new transitional license pursuant to KRS 243.045 .
  13. Other special licenses as the state board finds to be necessary for the administration of KRS Chapters 241 to 244 and for the proper regulation and control of the trafficking in malt beverages, as provided for by administrative regulations promulgated by the state board.

A nonrefundable application fee of fifty dollars ($50) shall be charged to process each new application for a license under this section. The application fee shall be applied to the licensing fee if the license is issued, or otherwise the fee shall be retained by the department.

History. 2554b-197: amend. Acts 1942, ch. 168, § 18; 1976, ch. 368, § 1; 1978, ch. 194, § 11, effective June 17, 1978; 1980, ch. 395, § 3, effective July 15, 1980; 1984, ch. 60, § 2, effective July 13, 1984; 1998, ch. 518, § 2, effective April 13, 1998; 1998, ch. 522, § 25, effective July 15, 1998; 2000, ch. 435, § 9, effective July 14, 2000; 2004, ch. 20, § 6, effective July 13, 2004; 2006, ch. 79, § 3, effective July 12, 2006; 2007, ch. 99, § 4, effective June 26, 2007; 2010, ch. 24, § 564, effective July 15, 2010; 2013, ch. 121, § 51, effective June 25, 2013; 2017 ch. 62, § 39, effective June 29, 2017; 2020 ch. 80, § 8, effective July 15, 2020; 2020 ch. 102, § 5, effective July 15, 2020.

Legislative Research Commission Notes.

(7/15/2020). This statute was amended by 2020 Ky. Acts chs. 80 and 102, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Double Taxation.

After payment of occupational tax in advance, a subsequent levying of an increased tax for the remainder of the year is unlawful, and, if involuntarily paid, may be recovered. Falls City Brewing Co. v. Talbott, 265 Ky. 541 , 97 S.W.2d 57, 1936 Ky. LEXIS 529 ( Ky. 1936 ) (decided under prior law).

Payment of corporate license tax, occupational tax and production tax, when none of them operate retroactively, does not constitute double taxation. Falls City Brewing Co. v. Talbott, 265 Ky. 541 , 97 S.W.2d 57, 1936 Ky. LEXIS 529 ( Ky. 1936 ) (decided under prior law).

2.Regulation by City of Second Class.

The city legislative body of a second-class city has been given specific authority by KRS 243.070 to impose license fees for the privilege of trafficking in alcoholic beverages and that privilege is broad enough to include the right to regulate the nature of the premises from which beer could be sold. Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 1976 Ky. LEXIS 46 ( Ky. 1976 ).

3.Cross-Licensing.

The legislature in this section dealt directly with the problem of incompatibility of licenses, which established a legislative intent not to prohibit cross-licensing in the areas not expressly prescribed; therefore, the Kentucky alcoholic beverage control board exceeded its authority by issuing a regulation prohibiting interlocking interests between malt beverage wholesalers, distributors and manufacturers. Kentucky Alcoholic Beverage Control Board v. Anheuser-Busch, Inc., 574 S.W.2d 344, 1978 Ky. App. LEXIS 624 (Ky. Ct. App. 1978).

Cited:

Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ); Gross v. Commonwealth, 288 S.W.2d 353, 1956 Ky. LEXIS 259 ( Ky. 1956 ); Blair v. Commonwealth, 334 S.W.2d 924, 1960 Ky. LEXIS 244 ( Ky. 1960 ); Newport v. Tye, 335 S.W.2d 340, 1960 Ky. LEXIS 257 ( Ky. 1960 ).

243.042. Qualified historic site license.

  1. A qualified historic site license may be issued to any establishment meeting the criteria established in KRS 241.010 as long as the establishment is within:
    1. Any wet territory; or
    2. Any precinct that has authorized the sale of alcoholic beverages under KRS 242.1242 .
  2. A qualified historic site license shall authorize the licensee to:
    1. Sell alcoholic beverages by the drink at one (1) or more permanent or nonpermanent locations on the premises over which the licensee, by lease or ownership, has exclusive control without obtaining additional supplemental bar licenses prescribed by KRS 243.037 ;
    2. Sell alcoholic beverages by the drink to patrons at public or private functions held on the premises; and
    3. Purchase and store alcoholic beverages in the manner prescribed in KRS 243.088 , 243.250 , and 244.260 .

HISTORY: Enact. Acts 2007, ch. 99, § 5, effective June 26, 2007; 2012, ch. 125, § 11, effective July 12, 2012; 2013, ch. 121, § 52, effective June 25, 2013; 2014, ch. 22, § 6, effective July 15, 2014; 2017 ch. 62, § 40, effective June 29, 2017.

243.045. Issuance of transitional license by State administrator or administrators — Limitations on use.

  1. A transitional license may be issued by the state administrator or administrators during the time a transfer of an ongoing business is being processed under the following conditions:
    1. The purchaser shall file an application for a permanent license with the appropriate local alcoholic beverage authority and with the department;
    2. The purchaser shall advertise its intention to apply for a license pursuant to KRS 243.360 ; and
    3. The purchaser shall pay all application fees for the permanent license.
  2. If the above requirements are met, the state administrator or administrators, as appropriate, may issue a transitional license with a term of up to sixty (60) days, plus one (1) thirty (30) day renewal license, to the purchaser for a processing fee set forth in KRS 243.030 to 243.040 . All transitional licenses immediately expire upon the issuance to the purchaser of one (1) or more permanent licenses.
  3. Upon completion of the sale of the business, the purchaser shall not operate the business on the seller’s license.
  4. The transitional license shall not be transferable or used for an application to move a business from one (1) location to another location.
  5. The transitional license shall entitle the holder to the same privileges and restrictions of the permanent license or licenses for which the holder applied under subsection (1)(a) of this section.

HISTORY: Enact. Acts 2006, ch. 79, § 1, effective July 12, 2006; 2010, ch. 24, § 565, effective July 15, 2010; 2017 ch. 62, § 41, effective June 29, 2017.

243.050. Extended hours supplemental license — Sunday retail drink license.

  1. The state administrators may issue an extended hours supplemental license for the retail sale of alcoholic beverages by the drink to the holder of an NQ1 retail drink license, a qualified historic site license, or a license located in a commercial airport. The board may, by administrative regulation or special conditions of an extended hours supplemental license, establish the days when the supplemental license will be valid, including Sundays, and establish any restrictions on the use of the license to ensure that it will be primarily for the benefit of holders of NQ1 retail drink licenses, qualified historic site licenses, and visitors at large commercial airports.
    1. A licensee located in territory which has authorized Sunday retail distilled spirits and wine drink sales under KRS 244.290 , either by local option election or by local government ordinance, shall obtain a Sunday retail drink license in order to sell distilled spirits and wine on Sunday. (2) (a) A licensee located in territory which has authorized Sunday retail distilled spirits and wine drink sales under KRS 244.290 , either by local option election or by local government ordinance, shall obtain a Sunday retail drink license in order to sell distilled spirits and wine on Sunday.
    2. A retail licensee holding a Sunday retail drink license is authorized to remain open and sell distilled spirits and wine by the drink for consumption on the premises only during those times and hours permitted by local government ordinance.
    3. A licensee located in territory that has authorized Sunday retail distilled spirits and wine package sales under KRS 244.290 or retail malt beverage package or drink sales under KRS 244.480 is not required to hold a Sunday retail drink license to authorize these sales.

HISTORY: 2554b-115; amend. Acts 1976, ch. 380, § 1; 1982, ch. 340, § 3, effective July 15, 1982; 1998, ch. 522, § 26, effective July 15, 1998; 2000, ch. 69, § 1, effective March 6, 2000; 2000, ch. 435, § 10, effective July 14, 2000; 2002, ch. 346, § 218, effective July 15, 2002; 2007, ch. 99, § 6, effective June 26, 2007; 2010, ch. 24, § 566, effective July 15, 2010; repealed and reenact., Acts 2013, ch. 121, § 53, effective June 25, 2013; 2014, ch. 22, § 7, effective July 15, 2014; 2017 ch. 62, § 42, effective June 29, 2017.

Opinions of Attorney General.

Since the fee formerly imposed by this section is $100, a city cannot levy a license fee of more than $200 per annum on a malt beverage distributor under KRS 243.070 . OAG 70-454 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Tavern and Driver by Pedestrian Struck by Intoxicated Driver on Sidewalk, Failure to Keep Control of Vehicle, Form 135.06.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Minor Against Liquor Store That Sold Liquor to Minor Who Subsequently Had One Car Accident, Form 132.04.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Third Party Against Liquor Store That Sold Liquor to Minor Who Caused Automobile Accident, Form 132.02.

243.055. Hotel in-room service license.

  1. As used in this section, the following definitions shall apply:
    1. “Hotel” means any hotel, motel, inn, or other establishment which offers overnight accommodations to the public for hire;
    2. “In-room service” means the delivery of alcoholic beverages in unbroken packages by an employee of the hotel to a registered guest’s room when the alcoholic beverages have been ordered by a guest and when the guest shall be billed for the cost of the alcoholic beverages at the time of delivery, with all sales of the alcoholic beverages being completed upon delivery; and, additionally, the provision of a cabinet or other facility located in a hotel guest’s room which contains alcoholic beverages and which is provided upon written request of the guest and which is accessible by lock and key or remote control device only to the guest, with the sale of the alcoholic beverages contained therein being final at the time requested, except for a credit which may be given to the guest for any unused portion. The licensee may stock a cabinet or other facility located in a hotel guest’s room pursuant to this section, with fifty (50) milliliter containers of distilled spirits.
  2. The department may issue a hotel in-room service license to any hotel which is licensed to sell distilled spirits, wine, and malt beverages upon the payment of the fee set forth in KRS 243.030 . The license shall authorize the licensee to sell distilled spirits, wine, and malt beverages by in-room service. The sale of alcoholic beverages by in-room service shall be subject to all restrictions and limitations contained in KRS Chapters 241 to 244, and the administrative regulations issued under those chapters, and shall be authorized only on the days and only during the hours as the sale of alcoholic beverages is otherwise authorized in the county or municipality. All alcoholic beverages sold pursuant to this section shall be considered by the drink sales and shall be subject to all state and local taxes imposed on alcoholic beverages and shall be purchased from a licensed wholesaler and distributor.

History. Enact. Acts 1992, ch. 228, § 1, effective July 14, 1992; 1998, ch. 518, § 9, effective April 13, 1998; 2010, ch. 24, § 567, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Louisville/Jefferson County Metro Gov’t v. Hotels.Com, L.P., 590 F.3d 381, 2009 U.S. App. LEXIS 28189 (6th Cir. 2009).

243.060. County and consolidated local government licenses — Kinds — Fees — Restrictions on increase of fees.

  1. The fiscal court of any county or a consolidated local government in which traffic in alcoholic beverages is permitted under KRS Chapter 242 may only issue the following alcoholic beverage licenses and corresponding maximum fees. The license fees are subject to the provisions of subsections (2) to (4) of this section, and shall not exceed the following:
    1. Quota retail package license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,200.00
      2. In all other counties  . . . . . 1,000.00
    2. Quota retail drink license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,600.00
      2. In all other counties  . . . . . $1,000.00
    3. Nonquota type 2 retail drink license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,800.00
      2. In all other counties  . . . . . $1,000.00
    4. Nonquota type 3 retail drink license, per annum  . . . . . $300.00
    5. Special temporary license, per event:
      1. In counties containing a consolidated local government  . . . . . $266.66
      2. In all other counties  . . . . . $166.66
    6. Special Sunday retail drink license, per annum  . . . . . $300.00
    7. Nonquota retail malt beverage package license, per annum  . . . . . $400.00
    8. Nonquota type 4 retail malt beverage drink license, per annum  . . . . . $400.00
    9. Limited restaurant license, per annum:
      1. In counties containing a consolidated local government  . . . . . $2,000.00
      2. In all other counties  . . . . . $1,400.00
    10. Limited golf course license, per annum:
      1. In counties containing a consolidated local government  . . . . . $2,000.00
      2. In all other counties  . . . . . $1,400.00
    11. Authorized public consumption license, per annum  . . . . . $250.00
    12. Qualified historic site license, per annum  . . . . . $1,030.00
  2. The fee for the following license types may not be increased by more than five percent (5%) above the January 1, 2013, fee for the current license or the former license type listed beside it, during any five (5) year period. The fees for the licenses described in this subsection are still subject to the maximum amounts listed for those licenses in subsection (1) of this section:
    1. Quota retail package license: retail package liquor license;
    2. Quota retail drink license: retail drink license;
    3. Nonquota type 2 retail drink license: restaurant drink license;
    4. Nonquota retail malt beverage package license: retail malt beverage license;
    5. Nonquota type 4 retail malt beverage drink license: retail malt beverage license;
    6. Limited restaurant license; and
    7. Limited golf course license.
  3. The fee for each of the first five (5) supplemental bar licenses shall be the same as the fee for the primary drink license. There shall be no charge for each supplemental license issued in excess of five (5) to the same licensee at the same premises.
  4. The holder of a nonquota retail malt beverage package license may obtain a Nonquota type 4 malt beverage drink license for a fee of fifty dollars ($50). The holder of a Nonquota type 4 malt beverage drink license may obtain a nonquota retail malt beverage package license for a fee of fifty dollars ($50).
  5. A county shall not issue county licenses or impose fees under this section to any person who holds a city license issued under KRS 243.070 .

HISTORY: 2554b-112, 2554b-221: amend. Acts 1972, ch. 335, § 2; 1978, ch. 432, § 3, effective June 17, 1978; 1998, ch. 518, § 4, effective April 13, 1998; 2002, ch. 346, § 219, effective July 15, 2002; 2004, ch. 20, § 7, effective July 13, 2004; 2013, ch. 121, § 54, effective June 25, 2013; 2016 ch. 80, § 9, effective July 15, 2016; 2017 ch. 62, § 43, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Brown v. Baumer, 301 Ky. 315 , 191 S.W.2d 235, 1945 Ky. LEXIS 719 ( Ky. 1945 ).

Opinions of Attorney General.

A county cannot collect license fees from package store owners in a city of the first four (4) classes for the authority for issuing such licenses rests exclusively with the city authorities to the absolute exclusion of the county authorities. OAG 61-31 .

Where the city imposed a license tax on dealers at the maximum rate allowed by statute, the county was precluded from levying a license tax on any dealers within the city. OAG 61-31 .

An establishment which sells alcoholic beverages in the county outside an incorporated area can be required to have both a permit for a place of entertainment under KRS ch. 231 and an alcoholic beverage license under this section. OAG 67-46 .

The fiscal court could cite a dealer in alcoholic beverages who has failed to pay the county license fees before the alcoholic beverage control board. OAG 69-339 .

Research References and Practice Aids

Cross-References.

Effect of the construction of KRS 68.180 to 68.195 on KRS 243.060 , KRS 68.195 .

243.070. City and consolidated local government licenses — Kinds — Fees — Restriction on increase of fees.

  1. The legislative body of any city or a consolidated local government in which traffic in alcoholic beverages is permitted under KRS Chapter 242 may only issue the following alcoholic beverage licenses and corresponding maximum fees. The license fees are subject to the provisions of subsections (2), (3), and (4) of this section, and shall not exceed the amounts specified in this subsection:
    1. Distiller’s license, per annum  . . . . . $500.00
    2. Rectifier’s license:
      1. Class A, per annum  . . . . . $3,000.00
      2. Class B (craft rectifier), per annum  . . . . . $960.00
    3. Wholesaler’s distilled spirits and wine license, per annum  . . . . . $3,000.00
    4. Quota retail package license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,200.00
      2. In all other counties  . . . . . $1,000.00
    5. Quota retail drink license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,600.00
      2. In all other counties  . . . . . $1,000.00
    6. Special temporary license, per event:
      1. In counties containing a consolidated local government  . . . . . $266.66
      2. In all other counties  . . . . . $166.66
    7. Nonquota type 1 retail drink license, per annum  . . . . . $2,000.00
    8. Nonquota type 2 retail drink license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,800.00
      2. In all other counties  . . . . . $1,000.00
    9. Nonquota type 3 retail drink license, per annum  . . . . . $300.00
    10. Special temporary alcoholic beverage auction license, per event  . . . . . $100.00
    11. Special Sunday retail drink license, per annum  . . . . . $300.00
    12. Extended hours supplemental license, per annum  . . . . . $2,000.00
    13. Caterer’s license, per annum  . . . . . $800.00
    14. Bottling house or bottling house storage license, per annum  . . . . . $1,000.00
    15. Brewer’s license, per annum  . . . . . $500.00
    16. Microbrewery license, per annum  . . . . . $500.00
    17. Malt beverage distributor’s license, per annum  . . . . . $400.00
    18. Nonquota retail malt beverage package license, per annum  . . . . . $200.00
    19. Nonquota type 4 retail malt beverage drink license, per annum  . . . . . $200.00
    20. Limited restaurant license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,800.00
      2. In all other counties  . . . . . $1,200.00
    21. Limited golf course license, per annum:
      1. In counties containing a consolidated local government  . . . . . $1,800.00
      2. In all other counties  . . . . . $1,200.00
    22. Authorized public consumption license, per annum  . . . . . $250.00
    23. Qualified historic site license, per annum  . . . . . $1,030.00
  2. The fee for the following license types may not be increased by more than five percent (5%) above the January 1, 2013, fee for the current license or the former license type listed beside it, during any five (5) year period. The fees for the licenses described in this subsection are still subject to the maximum amounts listed for those licenses in subsection (1) of this section:
    1. Quota retail package license: retail package liquor license;
    2. Quota retail drink license: retail drink license;
    3. Nonquota type 1 retail drink license: convention center or convention hotel complex license;
    4. Nonquota type 2 retail drink license: restaurant drink license;
    5. Nonquota retail malt beverage package license: retail malt beverage license;
    6. Nonquota type 4 retail malt beverage drink license: retail malt beverage license;
    7. Limited restaurant license; and
    8. Limited golf course license.
  3. The fee for each of the first five (5) supplemental bar licenses shall be the same as the fee for the primary drink license. There shall be no charge for each supplemental license issued in excess of five (5) to the same licensee at the same premises.
  4. The holder of a nonquota retail malt beverage package license may obtain a Nonquota type 4 malt beverage drink license for a fee of fifty dollars ($50). The holder of a Nonquota type 4 malt beverage drink license may obtain a nonquota retail malt beverage package license for a fee of fifty dollars ($50).

HISTORY: 2554b-113: amend. Acts 1972, ch. 335, § 3; 1978, ch. 384, § 99, effective June 17, 1978; 1978, ch. 432, § 4, effective June 17, 1978; 1984, ch. 60, § 3, effective July 13, 1984; 1994, ch. 109, § 1, effective July 15, 1994; 1996, ch. 95, § 4, effective July 15, 1996; 1998, ch. 518, § 5, effective April 13, 1998; 2000, ch. 69, § 3, effective March 6, 2000; 2000, ch. 435, § 11, effective July 14, 2000; 2002, ch. 346, § 220, effective July 15, 2002; 2004, ch. 20, § 8, effective July 13, 2004; 2013, ch. 121, § 55, effective June 25, 2013; 2016 ch. 80, § 10, effective July 15, 2016; repealed and reenacted 2017, ch. 62, § 44, effective June 29, 2017.

NOTES TO DECISIONS

1.Construction.

This section in placing a limit on city license fees means all license fees, whether imposed for the purpose of regulation or for the purpose of raising revenue. George Wiedemann Brewing Co. v. Newport, 321 S.W.2d 404, 1959 Ky. LEXIS 282 ( Ky. 1959 ).

2.Licenses.

Municipalities are limited in their power to issue licenses for liquor traffic to ones mentioned in subsections referred to in this section, and license to transport is not included. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

Since this section authorizes a city legislative body to impose license fees for the privilege of selling alcoholic beverages by the drink at retail, and since KRS 244.290 authorizes the city to establish the hours of sale, there is no violation of the statutes by reason of the fact that a city issues two types of licenses to carry on the same retail drink business at different operating hours. Newport v. Tye, 335 S.W.2d 340, 1960 Ky. LEXIS 257 ( Ky. 1960 ).

3.— Quotas Prohibited.

This section merely permits cities to impose license fees for the privilege of “manufacturing and trafficking in alcoholic beverages;” it does not authorize cities to impose quotas on the number of licenses issued. Whitehead v. Estate of Bravard, 719 S.W.2d 720, 1986 Ky. LEXIS 289 ( Ky. 1986 ).

4.Tax on Distributors.

A distributor’s license issued by the state does not authorize sales at any other place than the licensed premises. Therefore a city other than the one in which the distributor’s licensed premises are located may impose a license tax on the distributor for the privilege of selling beer in the city. Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Russell v. Morris, 292 Ky. 594 , 167 S.W.2d 321, 1942 Ky. LEXIS 141 ( Ky. 1942 ).

5.— Refusal to Grant.

Until a city has regulated number of liquor dispensaries by ordinance, it cannot refuse to grant license to any applicant who conforms to present ordinances where applicant has obtained license from state board. Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ).

6.— Nonresident.

Municipality may not tax nonresident liquor wholesaler, jobber, or distributor who delivers his products within municipality in own trucks, notwithstanding municipality might impose license tax on wholesaler located within its jurisdiction. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

7.— Recovery of Fee.

Where state board refused package license to applicant because his premises were not located within city, but subsequently issued license after applicant had prevailed upon city to pass annexation ordinance bringing his premises within city, applicant thereby received a benefit from the passage of the ordinance which would prevent him, after annexation ordinance was held void, from recovering liquor license taxes paid to city during period annexation ordinance was thought to be in force. Breeden v. Dry Ridge, 293 Ky. 657 , 170 S.W.2d 24, 1943 Ky. LEXIS 693 ( Ky. 1943 ).

8.Regulation of Premises.

The city legislative body of a second class city has been given specific authority by this section to impose license fees for the privilege of trafficking in alcoholic beverages and that privilege is broad enough to include the right to regulate the nature of the premises from which beer could be sold. Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 1976 Ky. LEXIS 46 ( Ky. 1976 ).

Cited:

Newport v. Tye, 335 S.W.2d 340, 1960 Ky. LEXIS 257 ( Ky. 1960 ).

Opinions of Attorney General.

Where a retail liquor licensee had paid for a county alcoholic beverage license for the coming year when the property on which his business was located was annexed by a third-class city, the city was entitled to impose a license fee on the dealer for the same period of time but the fee paid the city should be credited against the county fee and the credit refunded to the licensee. OAG 66-355 .

An occupational tax for alcoholic beverage control licenses imposed by a city of the fourth class would have to be limited to amounts specified in this section. OAG 70-520 .

A city may levy a motor vehicle license tax on vehicles delivering alcoholic beverages within the city where the ordinance is based on the use of the city streets. OAG 72-416 .

If the city of Williamsburg is voted wet, it may utilize this section in imposing city license fees for the privilege of trafficking in alcoholic beverages and the limitations written into this section apply for both regulatory and revenue purposes; the city could not impose a local sales tax for the reason that the state, in KRS Chapter 139, has preempted this field by establishing a license tax on the sale of liquor administered by the state on a statewide basis for state revenue purposes. OAG 73-307 .

There would be no bar to the city board of commissioners providing for a reduction in the city occupational license tax on retail liquor dealers from $410 to $205, retroactive to July 1, 1973. OAG 73-577 .

A city may not impose a restaurant wine license fee since the licenses set forth in this section which a city may issue, do not include the imposition of a city restaurant wine license, thus any fee placed upon restaurants which hold state licenses would be impermissible under this section. OAG 81-137 .

A fifth-class city has the authority to enact an ordinance imposing license fees on the manufacturing and trafficking of alcoholic beverages; the administration of such licenses is the responsibility of the county alcoholic beverage administrator. OAG 84-117 .

243.072. Economic hardship determinations for regulatory ordinances by a city with population of 3,000 to 7,999 — Administrative regulations — Exemption from population requirements. [Repealed]

HISTORY: Enact. Acts 2013, ch. 121, § 31, effective June 25, 2013; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2013, ch. 121, § 31, effective June 25, 2013) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

243.075. Eligible city or county may impose regulatory license fee up to five percent on gross receipts of each establishment’s sale of alcoholic beverages — Annual levies — Credits — Applicability of county regulatory license fee if city levies license fee — Enactment of fee within two years following election — Administrative regulations — Use of revenue received from regulatory license fee — Penalties for violation — Party suing city or county for violation responsible for attorney fees if city or county found not to be in violation — Regulatory fee imposed before 2019 permitted to continue at existing rate — Applicability to direct shipper licensee — Report to department.

    1. A city with a population of less than twenty thousand (20,000) based upon the most recent federal decennial census, or a county that does not contain a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census, or a county that contains a city authorized to impose a fee under subsection (9) of this section, that is wet through a local option election held under KRS Chapter 242 is authorized to impose a regulatory license fee not to exceed five percent (5%) upon the gross receipts of the sale of alcoholic beverages of each establishment located in the city or county licensed to sell alcoholic beverages. (1) (a) A city with a population of less than twenty thousand (20,000) based upon the most recent federal decennial census, or a county that does not contain a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census, or a county that contains a city authorized to impose a fee under subsection (9) of this section, that is wet through a local option election held under KRS Chapter 242 is authorized to impose a regulatory license fee not to exceed five percent (5%) upon the gross receipts of the sale of alcoholic beverages of each establishment located in the city or county licensed to sell alcoholic beverages.
    2. The regulatory license fee may be levied at the beginning of each budget period at a percentage rate that is reasonably estimated to fully reimburse the local government for the estimated costs of any additional policing, regulatory, or administrative expenses related to the sale of alcoholic beverages in the city and county.
    3. The regulatory license fee shall be in addition to any other taxes, fees, or licenses permitted by law, except:
      1. A credit against a regulatory license fee shall be allowed in an amount equal to any licenses or fees imposed by the city or county pursuant to KRS 243.060 or 243.070 ; and
      2. In a county in which the city and county both levy a regulatory license fee, the county license fee shall only be applicable outside the jurisdictional boundaries of those cities which levy a license fee.
    1. A city or county that is moist through a local option election held under KRS 242.1244 may by ordinance impose a regulatory license fee upon the gross receipts of the sale of alcoholic beverages of each establishment located in the city or county and licensed to sell alcoholic beverages by the drink for consumption on the premises. (2) (a) A city or county that is moist through a local option election held under KRS 242.1244 may by ordinance impose a regulatory license fee upon the gross receipts of the sale of alcoholic beverages of each establishment located in the city or county and licensed to sell alcoholic beverages by the drink for consumption on the premises.
    2. The regulatory license fee may be levied annually at a rate that is reasonably estimated to fully reimburse the city or county for the estimated costs for any additional policing, regulatory, or administrative related expenses.
    3. The regulatory license fee shall be in addition to any other taxes, fees, or licenses permitted by law, but a credit against the fee shall be allowed in an amount equal to any licenses or fees imposed by the city or county pursuant to KRS 243.060 or 243.070 .
    4. In a county in which the city and county both levy a regulatory license fee, the county license fee shall only be applicable outside the jurisdictional boundaries of those cities which levy a license fee.
    1. For any election held after July 15, 2014, any new fee authorized under subsection (1) or (2) of this section shall be enacted by the city or county no later than two (2) years from the date of the local option election held under KRS Chapter 242. (3) (a) For any election held after July 15, 2014, any new fee authorized under subsection (1) or (2) of this section shall be enacted by the city or county no later than two (2) years from the date of the local option election held under KRS Chapter 242.
    2. Notwithstanding paragraph (a) of this subsection, any city or county that held a local option election between July 15, 2014, and July 15, 2018, may enact a regulatory licensing fee in accordance with subsection (1) of this section within two (2) years of June 29, 2021.
  1. After July 15, 2014, any fee authorized under subsections (1) and (2) of this section shall be established at a rate that will generate revenue that does not exceed the total of the reasonable expenses actually incurred by the city or county in the immediately previous fiscal year for the additional cost, as demonstrated by reasonable evidence, of:
    1. Policing;
    2. Regulation; and
    3. Administration;

      as a result of the sale of alcoholic beverages within the city or county.

    1. The Alcoholic Beverage Control Board shall promulgate administrative regulations which set forth the process by which a city or county, in the first year following the discontinuance of prohibition, may estimate any additional policing, regulation, and administrative expenses by a city or county directly and solely related to the discontinuance of prohibition. This subsection shall apply to any discontinuance of prohibition occurring after the promulgation of administrative regulations required by this subsection. (5) (a) The Alcoholic Beverage Control Board shall promulgate administrative regulations which set forth the process by which a city or county, in the first year following the discontinuance of prohibition, may estimate any additional policing, regulation, and administrative expenses by a city or county directly and solely related to the discontinuance of prohibition. This subsection shall apply to any discontinuance of prohibition occurring after the promulgation of administrative regulations required by this subsection.
    2. After the first year, the regulatory license fee for each subsequent year shall conform to the requirements of subsection (4) of this section.
  2. The revenue received from the imposition of the regulatory license fee authorized under subsections (1) and (2) of this section shall be:
    1. Deposited into a segregated fund of the city or county;
    2. Spent only in accordance with the requirements of subsections (1) and (2) of this section; and
    3. Audited under an annual audit performed pursuant to KRS 43.070 , 64.810 , and 91A.040 .
  3. Any city or county found by a court to have violated the provisions of this section shall:
    1. Provide a refund as determined by the court to any licensee that has been harmed in an amount equal to its prorated portion of the excess revenues collected by the city or county that are directly attributable to a violation occurring after July 15, 2014;
    2. Be responsible for the payment of the reasonable attorney fees directly incurred by a party to a litigation in an amount ordered by the court upon its finding of an intentional and willful violation of this section by a city or county occurring after July 15, 2014; and
    3. Upon the finding by a court of a second intentional and willful violation of the provisions of this section, lose the ability to impose the regulatory fee provided by this section for a period of five (5) years and, upon the finding by a court of a third intentional and willful violation, forfeit the right to impose the regulatory license fee authorized by this section.
  4. Any party bringing suit against a city or county for an alleged violation of this section occurring after July 15, 2014, shall be responsible for the payment of the reasonable attorney fees of the city or county in an amount determined by the court upon a finding by the court that the city or county did not violate this section.
    1. Any city that does not meet the population requirements of subsection (1) of this section, and any county that has a city exceeding the population requirements of subsection (1) of this section, that imposed a regulatory license fee pursuant to this section as of January 1, 2019, shall be deemed to meet the requirements for doing so set out in this section and may continue to impose the regulatory license fee previously established pursuant to this section. (9) (a) Any city that does not meet the population requirements of subsection (1) of this section, and any county that has a city exceeding the population requirements of subsection (1) of this section, that imposed a regulatory license fee pursuant to this section as of January 1, 2019, shall be deemed to meet the requirements for doing so set out in this section and may continue to impose the regulatory license fee previously established pursuant to this section.
    2. Any city or county that is authorized to impose the regulatory license fee under subsection (1) of this section, or under paragraph (a) of this subsection, that imposed the regulatory license fee at a rate higher than five percent (5%) prior to June 27, 2019, may continue to impose the regulatory license fee at a rate that exceeds five percent (5%). The rate shall continue to be calculated annually pursuant to the requirements of this section and shall not exceed the rate that was imposed by the city or county on January 1, 2019.
  5. A direct shipper licensee shall be subject to and remit the regulatory license fee imposed by this section as though it were an establishment located in a city or county licensed to sell alcoholic beverages. This fee shall be considered a tax as defined in KRS 243.029 .
  6. Any city or county imposing a regulatory license fee under this section shall file with the department a report showing the applicable fee amount and remittance address for each affected license type in its jurisdiction on or before August 1, 2020. Any adoption of this fee after July 15, 2020, or modification of the applicable fee amount or remittance address for each affected licensee shall be reported to the department within thirty (30) days of adoption by the city or county imposing the fee. Within twenty (20) days after receipt of the information, the department shall compile and publish the information so that it is readily available to the public.

History. Enact. Acts 1982, ch. 434, § 16, effective July 15, 1982; 1998, ch. 121, § 38, effective July 15, 1998; 2000, ch. 435, § 18, effective July 14, 2000; 2013, ch. 121, § 56, effective June 25, 2013; 2014, ch. 22, § 9, effective July 15, 2014; ch. 39, § 1, effective July 15, 2014; 2014, ch. 92, § 297, effective January 1, 2015; 2017 ch. 62, § 45, effective June 29, 2017; 2019 ch. 53, § 1, effective June 27, 2019; 2020 ch. 80, § 9, effective July 15, 2020; 2021 ch. 48, § 1, effective June 29, 2021; 2021 ch. 156, § 27, effective July 1, 2021.

Legislative Research Commission Notes.

(7/1/2021). This statute was amended by 2021 Ky. Acts. chs. 48 and 156, which do not appear to be in conflict and have been codified together.

(1/1/2015). This statute was amended by 2014 Ky. Acts chs. 22, 39, and 92. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 92, which was last enacted by the General Assembly, prevails under KRS 446.250 .

243.080. Credit for local licenses on state retail licenses. [Repealed.]

Compiler’s Notes.

This section (2554b-116: amend. Acts 1978, ch. 432, § 5, effective June 17, 1978; 1980, ch. 395, § 4, effective July 15, 1980) was repealed by Acts 1994, ch. 312, § 2, effective July 15, 1994. For present law see KRS 243.025 .

243.081. Retail sale of alcoholic beverages on a delivery, to-go, or take-out basis — Prohibitions — Requirements — Exemptions regarding delivery vehicle signage — Application of other laws.

  1. If authorized under its licensing statute, a license holder with the privilege of selling alcoholic beverages by the drink at retail shall be permitted to sell alcoholic beverages by the drink in a sealed container, and by the package in sealed original containers, on a delivery, to-go, or take-out basis, as follows:
    1. The sale of alcoholic beverages pursuant to this section shall be in conjunction with the purchase of a prepared meal and only in quantities that a reasonable person would purchase with a meal;
    2. Deliveries, if applicable, shall be made in a vehicle operated and owned by the licensee, the licensee’s employee, or an independent contractor or agent; and
    3. Any person delivering alcoholic beverages shall be at least twenty-one (21) years of age.
  2. All licensees and their employees and independent contractors are prohibited from:
    1. Selling alcohol in bulk quantities;
    2. Completing sales in dry territories; or
    3. Delivering:
      1. Into dry territory;
      2. To a minor under twenty-one (21) years of age; or
      3. To an intoxicated person.
    1. For purposes of this section, alcoholic drinks to go shall be: (3) (a) For purposes of this section, alcoholic drinks to go shall be:
      1. Placed in a bag or other container that is secured in a manner that makes it visibly apparent if the container has been subsequently opened or tampered with; and
      2. Transported in a locked glove compartment or the trunk or other area that is not a passenger area under KRS 189.530(5).
    2. The department may, but is not required to, promulgate an administrative regulation that sets forth the:
      1. Conditions under which sales may take place;
      2. Days and times that sales may take place; and
      3. The requirements for transportation of alcoholic drinks to go under this section.
  3. For purposes of this section, vehicles used for deliveries shall be exempt from displaying the name and license number of the retail licensee selling the alcoholic beverages being delivered.
  4. Except as provided in this section, sales of alcoholic beverages shall be subject to all of the statutes and administrative regulations relating to the retail sale of alcoholic beverages.

HISTORY: 2021 ch. 20, § 1, effective March 15, 2021.

243.082. Nonquota type 1 or NQ1 retail drink license — Issuance to a convention center or convention hotel complex, horse racetrack, automobile racetrack, railroad system, commercial airline system or charter flight system, or state park — Privileges, duties, and restrictions for eligible entities.

  1. A “Nonquota type 1” or “NQ1” retail drink license may be issued to an applicant operating as, or in:
    1. A convention center or a convention hotel complex;
    2. A horse racetrack;
    3. An automobile racetrack;
    4. A railroad system;
    5. A commercial airlines system or charter flight system; or
    6. A state park.
  2. Any licensee holding an NQ1 retail drink license located in a qualifying convention center or a convention hotel complex, horse racetrack, an automobile racetrack, or state park may purchase, receive, possess, and sell alcoholic beverages at retail by the drink for consumption on the licensed premises. The license shall permit all alcoholic beverage sales on the premises without additional supplemental licenses. The licensee shall purchase alcoholic beverages only from licensed wholesalers or distributors. The holder of an NQ1 retail drink license under this section shall store alcoholic beverages in the manner prescribed in KRS 244.260 .
  3. A qualifying convention center or a convention hotel complex holding an NQ1 retail drink license may also hold a supplemental hotel in-room service license.
  4. A qualifying railroad system holding an NQ1 retail drink license may purchase, receive, possess, and sell alcoholic beverages at retail by the drink or by the package, upon any train that includes a dining car and is operated by the licensee in the state. Sales shall be made only while the train is in motion. A railroad system holding an NQ1 retail drink license may sell alcoholic beverages in unbroken packages smaller than two hundred (200) milliliters of distilled spirits and one hundred (100) milliliters of wine and may purchase alcoholic beverages from nonresidents.
  5. A qualifying commercial airlines system or charter flight system holding an NQ1 retail drink license may purchase, receive, possess, and sell alcoholic beverages at retail by the drink, and by miniature bottle, for consumption upon regularly scheduled or charter flights of the licensee, in and out of Kentucky. The license shall authorize the licensee to store alcoholic beverages for retail sale at a location or locations, if operating from more than one (1) airport in Kentucky, as designated on the license application.
  6. An NQ1 retail drink license may be issued to any qualifying applicant within a state park meeting the criteria established in KRS 241.010 so long as the state park is located, in whole or in part, within:
    1. Any wet territory; or
    2. Any precinct that has authorized the sale of alcoholic beverages under KRS 242.022 .

HISTORY: Enact. Acts 2013, ch. 121, § 40, effective June 25, 2013; 2014, ch. 20, § 3, effective July 15, 2014; ch. 22, § 10, effective July 15, 2014; 2017 ch. 62, § 46, effective June 29, 2017.

243.083. Restrictions on issuance of NQ2 retail drink licenses to certain restaurants or hotel dining facilities. [Repealed.]

Compiler's Notes.

This section (Enact Act 1978, ch. 432, § 8, effective June 1978; 2012, ch. 125, § 2, effective July 12, 2012; Repealed, reenacted, renumbered, and amended, 2013, ch. 121, § 18, effective June 25, 2015) was repealed by Acts 2014, ch. 22, § 26, effective July 15, 2014.

243.084. Nonquota type 2 or NQ2 retail drink license — Issuance to certain hotels, certain restaurants, airports, or riverboats — Privileges, duties, and restrictions for eligible entities.

  1. A “Nonquota type 2” or “NQ2” retail drink license may be issued to an applicant operating as, or in:
    1. A hotel that:
      1. Contains at least fifty (50) sleeping units; and
      2. Receives from its total food and alcoholic beverage sales at least fifty percent (50%) of its gross receipts from the sale of food;
    2. A restaurant;
    3. An airport;
    4. A riverboat;
    5. A distiller; or
    6. A business located within, or adjacent to, an entertainment destination center licensed premises.
  2. A holder of an NQ2 retail drink license may purchase, receive, possess, and sell alcoholic beverages at retail by the drink for consumption on the licensed premises or off-premises consumption pursuant to KRS 243.081 . The licensee shall purchase alcoholic beverages only from licensed wholesalers or distributors. A distiller may purchase its own products for retail drink sales under KRS 243.0305 . The holder of an NQ2 retail drink license shall store alcoholic beverages in the manner prescribed in KRS 244.260 .
    1. To qualify for an NQ2 license, a riverboat shall have a regular or alternative place of mooring in a wet county or city of this state. (3) (a) To qualify for an NQ2 license, a riverboat shall have a regular or alternative place of mooring in a wet county or city of this state.
    2. If a riverboat moors or makes landfall in a location other than its regular or alternate regular place of mooring, all alcoholic beverages shall be kept locked.
    3. A riverboat licensed under this subsection shall not take on or discharge passengers when mooring or making landfall in dry option territory.

History. Enact. Acts 2013, ch. 121, § 41, effective June 25, 2013; 2014, ch. 22, § 11, effective July 15, 2014; 2017 ch. 62, § 47, effective June 29, 2017; 2021 ch. 20, § 3, effective March 15, 2021.

243.086. Nonquota type 3 or NQ3 retail drink license — Issuance to private club, dining car or bed and breakfast — Varying restrictions and authorizations for eligible entities.

  1. A “Nonquota type 3” or “NQ3” retail drink license may be issued to an applicant operating as, or in:
    1. A private club;
    2. A dining car; or
    3. A bed and breakfast.
  2. The holder of an NQ3 retail drink license may purchase, receive, possess, and sell alcoholic beverages at retail by the drink for consumption on the licensed premises. The licensee shall purchase alcoholic beverages only from licensed wholesalers or distributors. The holder of an NQ3 retail drink license shall store alcoholic beverages in the manner prescribed in KRS 244.260 .
  3. A qualifying private club holding an NQ3 retail drink license shall exclude the general public from the licensed premises.
  4. A qualifying bed and breakfast holding an NQ3 retail drink license shall only sell alcoholic beverages by the drink to paid overnight guests of the licensee.

History. Enact. Acts 2013, ch. 121, § 42, effective June 25, 2013; 2016 ch. 80, § 11, effective July 15, 2016; 2017 ch. 62, § 48, effective June 29, 2017; 2020 ch. 102, § 17, effective July 15, 2020.

243.088. Nonquota type 4 or NQ4 retail malt beverage drink license — Issuance to holders of quota retail drink license, microbrewery license, small farm winery license, or other businesses selling for consumption on premises — Permitted activities — Sales at service stations.

  1. A “Nonquota type 4” or “NQ4” retail malt beverage drink license may be issued to the holder of a quota retail drink license, microbrewery license, small farm winery license, or any other business wishing to sell malt beverages by the drink for consumption on the premises only.
  2. An NQ4 retail malt beverage drink license shall authorize the licensee to:
    1. Sell malt beverages at retail by the drink from only the licensed premises for consumption at the licensed premises only; and
    2. Purchase malt beverages only from a distributor.
  3. The holder of an NQ4 retail malt beverage drink license may also hold a nonquota retail malt beverage package license.
  4. A nonquota retail malt beverage drink license shall not be issued to any premises from which gasoline and lubricating oil are sold or from which the servicing and repair of motor vehicles is conducted, unless there is maintained in inventory on the premises for sale at retail not less than five thousand dollars ($5,000) of food, groceries, and related products valued at cost. For purposes of this subsection, the term “food and groceries” has the meaning provided in KRS 243.280 . This section shall not apply to any licensed premises that sells no fuel other than marine fuel.

History. Enact. Acts 2013, ch. 121, § 43, effective June 25, 2013.

243.089. Authorized public consumption license issued in wet territory to commercial quadricycle business.

  1. An “authorized public consumption” license or “APC” license may be issued in wet territory to an applicant operating as, or in a commercial quadricycle business.
  2. The following qualifications are required before an APC license may be issued to a commercial quadricycle business for the operation of quadricycles on a public highway:
    1. The applicant shall have a business office;
    2. The applicant shall maintain general liability insurance of at least two million dollars ($2,000,000). No license shall be issued or renewed without written documentation of this insurance;
    3. The applicant shall possess a permit issued by the local government that has jurisdiction to grant rights to the applicant to operate its business on public roadways and highways within a specific designated operational area as its premises; and
    4. If the local government that has jurisdiction for the premises as described in paragraph (c) of this subsection chooses to issue permits under this section, that local government shall adopt an ordinance for operation of a commercial quadricycle business that contains:
      1. Hours of operation;
      2. Local licensing requirements;
      3. Any additional insurance requirements;
      4. Standards for the approval of authorized travel routes;
      5. Safety and equipment standards;
      6. Local inspection requirements;
      7. Standards for vehicle operation; and
      8. Standards for loading and unloading passengers.
  3. A holder of an APC license that operates as a commercial quadricycle business:
    1. May permit patrons to bring unopened packages of alcoholic beverages onto the licensed premises and open and drink them in nondescriptive plastic cups after boarding, and while riding, the quadricycle;
    2. Shall not permit patrons to bring or possess any glass containers of alcoholic beverages on the quadricycle;
    3. Shall not permit patrons to bring opened packages or drinks of alcoholic beverages from retail premises on the quadricycle;
    4. Shall only permit patrons to drink and consume alcoholic beverages in nondescriptive plastic cups while riding the quadricycle; and
    5. Shall not sell, permit, offer for sale, or provide or offer any samples of alcoholic beverages.
  4. An employee driver of a commercial quadricycle business holding an APC license shall:
    1. Be certified by the department’s server training in alcohol regulations (STAR) education program;
    2. Not consume or be under the influence of alcoholic beverages or controlled substances while driving and operating a quadricycle; and
    3. Not be convicted of any criminal offense or violation related to alcoholic beverages or controlled substances for a minimum period of two (2) years prior to employment.
  5. Any local licensing fee imposed under KRS 243.060 or 243.070 for an APC license shall not exceed the amount imposed under KRS 243.030 for an APC license.
  6. This section does not exempt the holder of an APC license from KRS Chapters 241 to 244 or any administrative regulation promulgated by the board, except as expressly stated in this section.

HISTORY: 2016 ch. 80, § 2, effective July 15, 2016.

243.090. Date licenses expire — Reduction in fee for licenses less than six months — Renewals not to affect proceedings for violations — Term of renewals — Denial of renewal to delinquent taxpayer.

  1. All licenses issued by the department, except special event licenses, temporary licenses, or licenses listed in subsection (5) of this section, shall be valid for a period of no more than a year. The board shall promulgate administrative regulations establishing the year-round system for renewal of licenses. The system shall be designed to distribute the workload as uniformly as possible within the offices of the local administrators and the Department of Alcoholic Beverage Control.
    1. Except for licenses listed in paragraph (b) of this subsection, all licenses issued after January 1, 2017, by a local administrator shall be valid for a period of no more than a year and shall be renewable upon the date established by the department for the expiration of state licenses issued for premises located in that county or city. During the first year following July 15, 2016, if the new date for renewal for the licensee does not occur on the date established by the department for the expiration of the licensee’s state license, the local administrator shall either: (2) (a) Except for licenses listed in paragraph (b) of this subsection, all licenses issued after January 1, 2017, by a local administrator shall be valid for a period of no more than a year and shall be renewable upon the date established by the department for the expiration of state licenses issued for premises located in that county or city. During the first year following July 15, 2016, if the new date for renewal for the licensee does not occur on the date established by the department for the expiration of the licensee’s state license, the local administrator shall either:
      1. Prorate the cost of the renewed license by proportionally reducing the cost of the renewed license if the new date for the renewal occurs prior to the expiration of a previous license; or
      2. Provide a prorated provisional local license to cover any period of time between the expiration of the previous license and the new date for renewal if the new date for renewal occurs after the expiration of the licensee’s previous license.
    2. Paragraph (a) of this subsection shall not apply to licenses issued by a consolidated local government, special event licenses, temporary licenses, or licenses listed in subsection (5) of this section.
  2. When any person applies for a new license authorized under KRS Chapters 241 to 244, the person shall be charged, if the license is issued, the full fee for the respective license if six (6) months or more remain before the license is due to be renewed and one-half (1/2) the fee if less than six (6) months remain before the license is due to be renewed. No abatement of license fees shall be permitted to any person who held a license of the same kind for the same premises in the preceding license period and who was actually doing business under the license during the last month of the preceding license period.
  3. The renewal by the department of any alcoholic beverage license shall not be construed to waive or condone any violation that occurred prior to the renewal and shall not prevent subsequent proceedings against the licensee.
  4. All alcoholic beverage producers, wholesalers, or distributors may obtain or renew their licenses for either a one (1) year term or a two (2) year term.
  5. The department may deny license renewal if the licensee is a delinquent taxpayer as defined in KRS 131.1815 .

HISTORY: 2554b-114, 2554b-117, 2554b-197: amend. Acts 1954, ch. 69; 1998, ch. 518, § 6, effective April 13, 1998; 2010, ch. 24, § 568, effective July 15, 2010; 2013, ch. 121, § 57, effective June 25, 2013; 2016 ch. 80, § 12, effective July 15, 2016; 2017 ch. 62, § 49, effective June 29, 2017.

243.100. Persons who may not be licensed — Evasion of license disqualification by certain persons — Direct shipper exemption.

An individual shall not become a licensee if the individual:

    1. Has been convicted of any felony until five (5) years have passed from the date of conviction, release from custody or incarceration, parole, or termination of probation, whichever is later; (1) (a) Has been convicted of any felony until five (5) years have passed from the date of conviction, release from custody or incarceration, parole, or termination of probation, whichever is later;
    2. Has been convicted of any misdemeanor involving a controlled substance that is described in or classified pursuant to KRS Chapter 218A in the two (2) years immediately preceding the application;
    3. Has been convicted of any misdemeanor directly or indirectly attributable to the use of alcoholic beverages in the two (2) years immediately preceding the application;
    4. Is under the age of twenty-one (21) years; or
    5. Has had any license relating to the regulation of the manufacture, sale, and transportation of alcoholic beverages revoked for cause or has been convicted of a violation of any statute within KRS Chapters 241 to 244, until the expiration of two (2) years from the date of the revocation or conviction.
  1. A partnership, limited partnership, limited liability company, corporation, governmental agency, or other business entity recognized by law shall not be licensed if:
    1. Each principal owner, partner, member, officer, and director does not qualify under subsection (1)(a), (b), (c), (d), and (e) of this section;
    2. It has had any license relating to the regulation of the manufacture, sale, and transportation of alcoholic beverages revoked for cause or has been convicted of a violation of any statute within KRS Chapters 241 to 244, until the expiration of two (2) years from the date of the revocation or conviction; or
    3. Any principal owner, partner, member, officer, or director, or any business entity in which they were directly or indirectly interested, has had any license revoked for cause or has been convicted of a violation of any statute within KRS Chapters 241 to 244, until the expiration of the later of two (2) years from the date of the revocation or two (2) years from the date of conviction.
  2. The provisions of subsection (1)(a) and (b) shall apply to anyone applying for a new license under this chapter after July 15, 1998, but shall not apply to those who renew a license that was originally issued prior to July 15, 1998, or an application for a supplemental license where the original license was issued prior to July 15, 1998.
  3. A person shall not evade license disqualification by applying for a license through or under the name of a different person. The state administrators shall examine the ownership, membership, and management of all license applicants, and shall deny the application if a disqualified person has a direct or indirect interest in the applicant’s business. The department may issue administrative subpoenas and summonses to determine ownership of an applicant or to investigate alleged violations by a licensee.
  4. A direct shipper license applicant shall be exempt from the requirements of this section, and shall instead follow the requirements set forth in KRS 243.027 .

History. 2554b-154: amend. Acts 1944, ch. 154, § 12a; 1978, ch. 194, § 12, effective June 17, 1978; 1998, ch. 522, § 7, effective July 15, 1998; 2014, ch. 20, § 4, effective July 15, 2014; 2017 ch. 61, § 3, effective June 29, 2017; 2017 ch. 62, § 50, effective June 29, 2017; 2020 ch. 102, § 4, effective July 15, 2020; 2021 ch. 13, § 19, effective March 12, 2021.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate the commerce clause, due process clause or the equal protection clause of the federal constitution. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (U.S. 1939).

2.Refusal to Renew.

The fact that alcoholic beverage control board, after finding wholesaler guilty of violating O.P.A. ceilings in sale of whiskey, merely suspended his license for 25 days instead of revoking the license, did not bar the board, on ground of res adjudicata or double punishment, from refusing subsequent application of wholesaler for renewal of his license for the following year, particularly where there was evidence that suspension was given at request of federal officials prosecuting licensee and confederates in federal court, and the proceedings in the federal court subsequently developed the serious extent of the licensees’ violations. Brown v. Baumer, 301 Ky. 315 , 191 S.W.2d 235, 1945 Ky. LEXIS 719 ( Ky. 1945 ).

Conviction of a misdemeanor involving traffic in alcoholic beverages, if more than two (2) years old would not be a ground requiring the refusal or revocation of a license. Brown v. Carey, 442 S.W.2d 566, 1969 Ky. LEXIS 270 ( Ky. 1969 ).

3.False Statement.

A false material statement in the application would make the board’s action in granting a license a nullity. Brown v. Carey, 442 S.W.2d 566, 1969 Ky. LEXIS 270 ( Ky. 1969 ).

Cited:

Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); Ni-Be, Inc. v. Moberly, 425 S.W.2d 567, 1968 Ky. LEXIS 425 ( Ky. 1968 ).

Opinions of Attorney General.

The department of alcoholic beverage control should follow the guidelines established under this section, in its issuance of licenses, rather than those of KRS 335B.010 to 335B.070 . OAG 78-603 .

There is no conflict between the provisions of KRS Chapter 335B and this section, as amended in 1978 as regards to their licensing and public employment qualifications. OAG 78-603 .

The definitions and qualification provisions of KRS 335B.010 to 335B.070 do not apply to applicants for licenses to do business in alcoholic beverages. OAG 78.603.

By enacting this section it was the intent of the legislature that an alien not personally hold an alcoholic beverage license, or direct the activities of a licensed business and even though alien shareholders are not precluded it must be recognized that stock ownership can reach a point that the shareholder’s interest becomes de facto control; in this sense the alcoholic beverage control board may consider the alien’s status in determining whether a license should be granted or denied. OAG 79-197 .

The alcoholic beverage control board may consider the ownership of a corporation’s stock in granting or denying a license application. OAG 79-197 .

This section establishes specific conditions pursuant to which an alcoholic beverage license may not be issued, and its provisions are mandatory. OAG 79-197 .

Research References and Practice Aids

Cross-References.

Persons who may not be employed by licensees, KRS 244.090 .

243.105. Residence requirements for individual wholesaler. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 207, §§ 1 to 3; repealed and reen. Acts 1958, ch. 59, § 1) was repealed by Acts 1998, ch. 135, § 1, effective July 15, 1998.

243.106. Residence requirements for joint enterprise wholesaler. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 59, § 2, effective June 19, 1958) was repealed by Acts 1998, ch. 135, § 1, effective July 15, 1998.

243.107. Grandfather provisions as to wholesaler residence requirements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 59, § 3, effective June 19, 1958) was repealed by Acts 1998, ch. 135, § 1, effective July 15, 1998.

243.110. Incompatible licenses.

  1. Except as provided in subsection (3) of this section, each kind of license listed in KRS 243.030 shall be incompatible with every other kind listed in that section and no person or entity holding a license of any of those kinds shall apply for or hold a license of another kind listed in KRS 243.030 .
    1. Each kind of license listed in KRS 243.040(1), (3), or (4) shall be incompatible with every other kind listed in KRS 243.040(1), (3), or (4), and no person holding a license of any of those kinds shall apply for or hold a license of any other kind listed in KRS 243.040(1), (3), or (4). (2) (a) Each kind of license listed in KRS 243.040(1), (3), or (4) shall be incompatible with every other kind listed in KRS 243.040(1), (3), or (4), and no person holding a license of any of those kinds shall apply for or hold a license of any other kind listed in KRS 243.040(1), (3), or (4).
    2. A brewery holding a license listed in KRS 243.040(5) or (8) shall not apply for or hold a license listed in KRS 243.040(3) or (4).
    1. The holder of a quota retail package license may also hold a quota retail drink license, an NQ1 retail drink license, an NQ2 retail drink license, an NQ3 retail drink license, or a special nonbeverage alcohol license. (3) (a) The holder of a quota retail package license may also hold a quota retail drink license, an NQ1 retail drink license, an NQ2 retail drink license, an NQ3 retail drink license, or a special nonbeverage alcohol license.
    2. The holder of a transporter’s license may also hold a distilled spirits and wine storage license.
    3. The holder of a distiller’s license may also hold a rectifier’s license, a special nonbeverage alcohol license, a winery license, or a small farm winery license.
    4. A commercial airline system or charter flight system retail license, a commercial airline system or charter flight system transporter’s license, and a retail drink license if held by a commercial airline or charter flight system may be held by the same licensee.
    5. A Sunday retail drink license and supplemental license may be held by the holder of a primary license.
    6. The holder of a distiller’s, winery, small farm winery, brewer, microbrewery, distilled spirits and wine supplier’s, or malt beverage supplier’s license may also hold a direct shipper license.
  2. Any person may hold two (2) or more licenses of the same kind.
  3. A person or entity shall not evade the prohibition against applying for or holding licenses of two (2) kinds by applying for a second license through or under the name of a different person or entity. The state administrator shall examine the ownership, membership, and management of applicants, and shall deny the application for a license if the applicant is substantially interested in a person or entity that holds an incompatible license.

History. 2554b-128, 2554b-130: amend. Acts 1976, ch. 380, § 2; 1976, ch. 381, § 4; 1996, ch. 95, § 5, effective July 15, 1996; 1998, ch. 121, § 10, effective July 15, 1998; 2006, ch. 179, § 9, effective January 1, 2007; 2013, ch. 121, § 58, effective June 25, 2013; 2015 ch. 26, § 1, effective June 24, 2015; 2017 ch. 62, § 51, effective June 29, 2017; 2020 ch. 80, § 16, effective July 15, 2020; 2020 ch. 102, § 18, effective July 15, 2020; 2021 ch. 13, § 6, effective March 12, 2021.

Legislative Research Commission Notes.

(7/15/2020). This statute was amended by 2020 Ky. Acts chs. 80 and 102, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Construction.

“Retail drink license” as used in the first sentence of subsection (2) of this section is not a generic term, and does not include a special license. Pendennis Club v. Alcoholic Beverage Control Board, 287 Ky. 49 , 151 S.W.2d 438, 1941 Ky. LEXIS 484 ( Ky. 1941 ).

Where KRS 243.030(43) (now 243.030(54)) creates a new small farm winery wholesaler’s license, and KRS 243.154 states that a small farm winery wholesaler’s licensee may purchase, receive, store or possess wine produced by small farm winery licensees, and may sell the wine at wholesale from its licensed premises, the amended version of KRS 243.110 appears to resolve the matter of discrimination against out-of-state wineries. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

2.Compatible Licenses.

Holder of package license may also hold retail drink license. Pendennis Club v. Alcoholic Beverage Control Board, 287 Ky. 49 , 151 S.W.2d 438, 1941 Ky. LEXIS 484 ( Ky. 1941 ).

If the Legislature had intended that a brewer’s license and a distributor’s license should be inconsistent with each other, then it would have stated so. Kentucky Beer Wholesalers' Asso. v. George Wiedemann Brewing Co., 302 S.W.2d 606, 1957 Ky. LEXIS 204 ( Ky. 1957 ).

A brewer may hold a brewer’s license and a malt beverage distributor’s license at the same time. Kentucky Beer Wholesalers' Asso. v. George Wiedemann Brewing Co., 302 S.W.2d 606, 1957 Ky. LEXIS 204 ( Ky. 1957 ).

3.— Private Club.

The holder of a special private club license may not be granted a retail package license nor a retail drink license. Pendennis Club v. Alcoholic Beverage Control Board, 287 Ky. 49 , 151 S.W.2d 438, 1941 Ky. LEXIS 484 ( Ky. 1941 ).

Cited:

Blair v. Commonwealth, 334 S.W.2d 924, 1960 Ky. LEXIS 244 ( Ky. 1960 ); Kentucky Alcoholic Beverage Control Board v. Anheuser-Busch, Inc., 574 S.W.2d 344, 1978 Ky. App. LEXIS 624 (Ky. Ct. App. 1978).

Opinions of Attorney General.

The ownership of 2% of the stock of a distillery corporation does not constitute such a “substantial interest” within the meaning of this section that the stockholder is precluded from being an officer of a licensed Kentucky liquor wholesaler or from holding a Kentucky solicitor’s license. OAG 75-65 .

243.115. Removal of partially consumed bottle of wine from restaurant licensed under KRS 243.030.

  1. A restaurant licensed under KRS 243.030 may permit a patron of the restaurant to remove one (1) opened container of wine from the restaurant’s premises for consumption off the premises if the patron has purchased and partially consumed the bottle of wine with a meal on the restaurant’s premises.
  2. A partially consumed bottle of wine that is removed from the premises shall be securely resealed by the restaurant licensee or its employee before the bottle is removed from the premises. The partially consumed bottle of wine shall be placed in a bag or other container that is secured in a manner that makes it visibly apparent if the container has been subsequently opened or tampered with, and the licensee shall provide a dated receipt for the wine to the patron.

History. Enact. Acts 2006, ch. 76, § 1, effective July 12, 2006.

243.117. Placement of resealed bottle of wine during transport.

If a patron removes a resealed bottle of wine from the premises of a restaurant as provided for in KRS 243.115 , any resealed bottle of wine that is transported in a motor vehicle shall be placed in a locked glove compartment or the trunk or other area that is not a passenger area under KRS 189.530(5).

History. Enact. Acts 2006, ch. 76, § 2, effective July 12, 2006.

243.120. Business authorized by distiller’s, rectifier’s, or winery license — Class A and Class B distiller’s and rectifier’s licenses — Distiller’s sale of distilled spirits by the drink.

  1. A distiller’s, rectifier’s, or winery license shall authorize the licensee to engage in the business of distiller, rectifier, or winery at the premises specifically designated in the license, to maintain aging warehouses, and to transport for himself or herself only any alcoholic beverage which he or she is authorized under the license to manufacture or sell. The licensee shall transport alcoholic beverages only by a vehicle operated by himself or herself, which has affixed to its sides at all times a sign of form and size prescribed by the state board, containing among other things the name and license number of the licensee.
      1. A licensee holding a distiller’s license, Class A license, or Class B license shall distill no less than six hundred (600) gallons in one (1) year at the distillery’s licensed premises. (2) (a) 1. A licensee holding a distiller’s license, Class A license, or Class B license shall distill no less than six hundred (600) gallons in one (1) year at the distillery’s licensed premises.
      2. A licensee that engages in the distilling process for the exclusive purpose of providing training and education, conducting research, or teaching about the distilling process, aging, or bottling of distilled spirits shall be exempt from subparagraph 1. of this paragraph, so long as the licensee does not produce spirits for sale to the general public.
    1. Distillers that produce more than fifty thousand (50,000) gallons of distilled spirits per calendar year at the premises shall obtain a distiller’s license, Class A.
    2. Distillers that produce fifty thousand (50,000) gallons or less of distilled spirits per calendar year at the premises shall obtain a distiller’s license, Class B (craft distillery).
    1. Rectifiers that rectify more than fifty thousand (50,000) gallons of distilled spirits per calendar year at the premises shall obtain a rectifier’s license, Class A. (3) (a) Rectifiers that rectify more than fifty thousand (50,000) gallons of distilled spirits per calendar year at the premises shall obtain a rectifier’s license, Class A.
    2. Rectifiers that rectify fifty thousand (50,000) gallons or less of distilled spirits per calendar year at the premises shall obtain a rectifier’s license, Class B (craft rectifier).
    1. A distiller that is located in wet territory, or in any precinct that has authorized the limited sale of alcoholic beverages at distilleries under KRS 242.1243 , may sell distilled spirits by the drink or by the package at retail to consumers in accordance with KRS 243.0305 . (4) (a) A distiller that is located in wet territory, or in any precinct that has authorized the limited sale of alcoholic beverages at distilleries under KRS 242.1243 , may sell distilled spirits by the drink or by the package at retail to consumers in accordance with KRS 243.0305 .
    2. Any distilled spirits sold under this subsection shall be taxed and distributed in the same manner as sales under KRS 243.0305(2).
    3. Except as provided in this subsection, sales under this subsection shall be governed by all of the statutes and administrative regulations governing the retail sale of distilled spirits by the drink.
  2. Nothing in this section shall be construed to:
    1. Vitiate the policy of this Commonwealth supporting an orderly three (3) tier system for the production and sale of alcoholic beverages; or
    2. Allow delivery or shipment of alcohol into dry or moist territory.

History. 2554b-118: amend. Acts 1942, ch. 168, §§ 1, 10; 1950, ch. 176, § 8; 1986, ch. 14, § 1, effective July 15, 1986; 1998, ch. 121, § 11, effective July 15, 1998; 2000, ch. 289, § 2, effective July 14, 2000; 2013, ch. 121, § 59, effective June 25, 2013; 2014, ch. 22, § 12, effective July 15, 2014; 2016 ch. 80, § 13, effective July 15, 2016; 2018 ch. 164, § 2, effective April 13, 2018; 2020 ch. 102, § 3, effective July 15, 2020; 2021 ch. 13, § 16, effective March 12, 2021; 2021 ch. 35, § 1, effective June 29, 2021.

Legislative Research Commission Notes.

(6/29/2021). This statute was amended by 2021 Ky. Acts chs. 13 and 35, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Transportation License.

License issued under KRS 243.030 , empowers holder to transport such beverages as he is authorized to sell from his licensed place of business only to licensed retailers, in his own trucks as described in this section. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

This section and KRS 243.160 do not provide for license to individual to transport alcoholic beverages independent of license to deal in them as manufacturer, wholesaler, or distributor. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

Cited:

Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (1939); Russell v. Morris, 292 Ky. 594 , 167 S.W.2d 321, 1942 Ky. LEXIS 141 ( Ky. 1942 ); Crab Orchard Distilling Co. v. Commonwealth, 304 Ky. 483 , 201 S.W.2d 203, 1947 Ky. LEXIS 667 ( Ky. 1947 ).

Opinions of Attorney General.

A person holding both a distiller’s license and a rectifier’s license can continue to rectify, bottle, warehouse, and sell distilled spirits to wholesalers without holding a distiller’s license after such licensee has ceased the manufacture of whiskey. OAG 71-350 .

A rectifier may refine, purify, or mix different kinds of whiskey and sell such products to wholesalers in retail containers. OAG 71-350 .

Research References and Practice Aids

Cross-References.

Distiller who manufactures in quantities of not less than three (3) gallons, for delivery into territory where sale legal, not affected by local option law, KRS 242.300 .

243.130. Transactions permitted to brewers, distillers, rectifiers, and wineries.

  1. Sales and deliveries of distilled spirits and wine may be made at wholesale, and from the licensed premises only:
    1. By distillers to rectifiers, wineries, holders of special nonbeverage alcohol licenses so far as they may make the purchases, or other distillers;
    2. By rectifiers to wineries or to distillers if distilled spirits sold to distillers are packaged in retail containers;
    3. By wineries to rectifiers or other wineries, or to the holders of special nonbeverage alcohol licenses;
    4. By distillers, rectifiers, or wineries to wholesalers; or
    5. By distillers, rectifiers, or wineries for export out of the state.
  2. No distiller, rectifier, or winery shall sell or contract to sell, give away, or deliver any alcoholic beverages to any person who is not authorized by the law of the state of the person’s residence, and of the United States government if located in the United States, to receive and possess those alcoholic beverages. Except as provided in KRS 243.027 to 243.029 and KRS 243.0305 , no distiller, rectifier, or winery shall sell or contract to sell, give away, or deliver any of its products to any retailer or consumer in Kentucky.
  3. Employees of distillers, rectifiers, and wineries may sample the products produced by that manufacturer for purposes of education, quality control, and product development.
  4. Distillers may purchase distilled spirits only from other licensed distillers in this state or in another state or province, but distillers may purchase from rectifiers licensed in Kentucky, distilled spirits which are packaged in retail containers.
  5. Rectifiers may purchase malt, distilled spirits and wine only from licensed brewers, distillers or wineries in Kentucky, or from nonresident brewers, distillers or wineries authorized by the law of the state of their residence and by the United States government, if the brewers, distillers or wineries are located in or outside the United States, to make the sales.
  6. Wineries may purchase distilled spirits or wine only from licensed distillers or wineries in Kentucky, or from nonresident distillers or wineries authorized by law of the state of their residence, and by the United States government if located in the United States, to make the sales.
  7. Nothing shall prohibit the purchase or sale of warehouse receipts by any person, but this subsection does not authorize the owner of a warehouse receipt to accept delivery of any distilled spirits unless the owner is a person who is permitted by law to receive the distilled spirits.
  8. Nothing in this section shall be construed to:
    1. Vitiate the policy of this Commonwealth supporting an orderly three (3) tier system for the production and sale of alcoholic beverages; or
    2. Allow delivery or shipment of alcohol into dry or moist territory.

History. 2554b-119: amend. 2013, ch. 121, § 60, effective June 25, 2013; 2017 ch. 62, § 52, effective June 29, 2017; 2018 ch. 164, § 3, effective April 13, 2018; 2020 ch. 80, § 17, effective July 15, 2020; 2021 ch. 13, § 17, effective March 12, 2021.

NOTES TO DECISIONS

1.Promotional Activities.

Although this section specifically prohibited promotional activities for the sale of alcoholic beverages on the part of distillers, rectifiers and vintners and KRS 244.050 prohibited similar activities by any retail licensee but there was no statute prohibiting such activities on the part of brewers and beer distributors, the alcoholic beverage control board was not authorized to adopt a regulation prohibiting the promotion of alcoholic beverage brands by brewers and distributors in retail stores for enactment of specific statutory legislation in the field as to distillers, rectifiers, vintners and retail licensees dispels any notion that the Legislature impliedly delegated to the board power to legislate similarly to brewers and beer distributors. Oertel Brewing Co. v. Portwood, 320 S.W.2d 317, 1959 Ky. LEXIS 234 ( Ky. 1959 ).

Cited:

Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (1939); Burke v. Stitzel-Weller Distillery, 284 Ky. 676 , 145 S.W.2d 861, 1940 Ky. LEXIS 565 ( Ky. 1940 ); Roppel v. Shearer, 321 S.W.2d 36, 1959 Ky. LEXIS 254 ( Ky. 1959 ).

Research References and Practice Aids

Cross-References.

Distiller who manufactures in quantities of not less than three gallons, for delivery into territory where sale legal, not affected by local option law, KRS 242.300 .

243.140. Business authorized by blender’s license. [Repealed.]

Compiler’s Notes.

This section (2554b-114: amend. Acts 1970, ch. 94, § 2) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.150. Business authorized by brewer’s license — Sale and service of malt beverages — Sampling by employees.

  1. A brewer’s license shall authorize the licensee to engage in the business of a brewer at the premises specifically designated in the license, and to transport for itself only any malt beverage which the licensee is authorized by its license to manufacture or sell, but the licensee shall transport any malt beverages in accordance with the requirements provided by KRS 243.120 for distillers.
  2. A brewer may sell any malt beverage produced under its license to:
    1. A licensed wholesaler from the licensed premises;
    2. Any of its employees for home consumption;
    3. Charitable or fraternal organizations holding group meetings, picnics, or outings;
    4. A customer, strictly limited to the following types of sales on the premises of a brewery located in wet territory:
      1. By the drink sales for consumption on the premises only, to be conducted in a taproom or similar space that is located at the licensed brewery; and
      2. Package sales for off-premises consumption only by using a refillable, resealable growler; and
    5. Consumers, if the brewer holds a direct shipper license under KRS 243.027 to 243.029 .
  3. A licensed brewer may buy malt beverages from another licensed brewer in this state or nonresident brewer authorized by the law of the state of its residence, and by the United States government if located in the United States, to make these sales;
  4. Employees of a licensed brewer may sample the products produced by that manufacturer for purposes of education, quality control, and product development.
  5. A brewer may serve on the licensed premises of its brewery complimentary samples of malt beverages produced at the brewery in an amount not to exceed sixteen (16) ounces per patron per day, if the brewery is located in wet territory.

History. 2554b-198: amend. Acts 1960, ch. 205, § 1; 1996, ch. 72, § 3, effective July 15, 1996; 2013, ch. 63, § 1, effective June 25, 2013; 2016 ch. 80, § 14, effective July 15, 2016; 2017 ch. 62, § 53, effective June 29, 2017; 2020 ch. 80, § 18, effective July 15, 2020.

NOTES TO DECISIONS

1.Sale from Premises.

The meaning of this section is that a brewer may sell malt beverage produced under his license from the beverage premises without obtaining an additional license. Kentucky Beer Wholesalers' Asso. v. George Wiedemann Brewing Co., 302 S.W.2d 606, 1957 Ky. LEXIS 204 ( Ky. 1957 ).

2.Regulation of Sale.

This section relates to business authorized by holder of brewer’s license and KRS 243.180 relates to the license of distributors of malt beverages; retailers are not mentioned in either section, and since there is a vast distinction by the statutes between a retailer of malt beverages and a distributor, who is a wholesaler, the alcoholic beverage control board has no authority under either section to enact regulation prohibiting both the retail sale of malt beverages by telephone or mail, and delivery at any place beyond the premises of licensee. Roppel v. Shearer, 321 S.W.2d 36, 1959 Ky. LEXIS 254 ( Ky. 1959 ).

243.154. Business authorized by small farm winery wholesaler’s license — Licensed premises on small farm winery.

  1. A small farm winery wholesaler’s license shall authorize the licensee:
    1. To purchase, receive, store, or possess wine produced by small farm winery licensees;
    2. To sell the wine at wholesale from the licensed premises only; and
    3. To transport from the licensed premises for himself or herself only any wine produced by small farm winery licensees that the small farm winery wholesaler’s license authorizes him or her to sell.
  2. A small farm winery wholesaler licensed under this section shall:
    1. Transport the wine in the manner provided for manufacturers in KRS 243.120 ; and
    2. Transport the wine from a small farm winery’s licensed premises or another wholesaler’s premises to the small farm winery wholesaler’s premises.
  3. A small farm winery wholesaler licensed under this section shall not purchase, receive, store, possess, sell, or transport wine or distilled spirits, except as provided in this section, and shall comply with all provisions of the Kentucky Revised Statutes applicable to wholesalers licensed under KRS 243.030 , to the extent the provisions are not inconsistent with this section.
  4. A small farm winery wholesaler licensed under this section shall be allowed to have its licensed premises on or in the licensed premises of a small farm winery.

History. Enact. Acts 2006, ch. 179, § 15, effective January 1, 2007; 2013, ch. 121, § 61, effective June 25, 2013.

NOTES TO DECISIONS

1.Constitutionality.

Where KRS 243.030(43) (now 243.030(54)) creates a new small farm winery wholesaler’s license, and KRS 243.154 states that a small farm winery wholesaler’s licensee may purchase, receive, store or possess wine produced by small farm winery licensees, and may sell the wine at wholesale from its licensed premises, the amended version of KRS 243.110 appears to resolve the matter of discrimination against out-of-state wineries. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

The small farm winery wholesaler’s license scheme under KRS 243.030(43) (now 243.030(54)) and KRS 243.154 and the at-cost distribution program for wholesalers under KRS 260.175 replace the self-distribution privilege under former KRS 243.155 (d); small farm wineries will be able to market their wines to retail package and retail drink license holders through a licensed wholesaler or a small farm winery wholesaler at an at-cost rate. As all small farm wineries must go through some form of wholesale mechanism to make retail package and retail drink sales, there is no constitutional violation. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

243.155. Small farm winery license — Eligibility and application process — Business authorized by license — Direct shipment of wine — Custom crushing services — Off-premise retail sales outlet in wet territory — Other permitted licenses — Renewal of license — Sampling by employees.

  1. Any in-state or out-of-state small farm winery may apply for a small farm winery license. In addition to all other licensing requirements, an applicant for a small farm winery license shall submit with its application a copy of the small farm winery’s federal basic permit and proof documenting its annual wine production. An out-of-state winery shall submit additional documentation evidencing its resident state. As part of the application process, an out-of-state winery shall publish its notice of intent, as required by KRS 243.360 , in the Kentucky newspaper of highest circulation. The board shall promulgate administrative regulations establishing the form the documentation of proof of production shall take.
  2. A small farm winery license shall authorize the licensee to perform the following functions without having to obtain separate licenses, except that each small farm winery off-premises retail site shall be separately licensed:
    1. Engage in the business of a winery under the terms and conditions of KRS 243.120 and 243.130 . The manufacture of wine at the small farm winery shall not be less than two hundred fifty (250) gallons, and shall not exceed five hundred thousand (500,000) gallons, in one (1) year;
    2. Bottle wines produced by that small farm winery and other licensed small farm wineries;
    3. Enter into an agreement with another licensed small farm winery under which it crushes, processes, ferments, bottles, or any combination of these services, the grapes, fruits, or other agricultural products of the other small farm winery for a production year. The resulting wine shall be considered the product of the small farm winery that provides the fruit. The small farm winery providing the custom crushing services may exclude the wine produced under this paragraph from its annual production gallonage;
    4. If the licensed small farm winery or off-premises retail site premises is located in wet territory or in a precinct that has authorized alcoholic beverage sales by the small farm winery under KRS 242.124 :
      1. Serve complimentary samples of wine produced by it in amounts not to exceed six (6) ounces per patron per day; and
      2. Sell by the drink for on-premises consumption or off-premises consumption pursuant to KRS 243.081 , or by the package wine produced by it or by another licensed small farm winery, at retail to consumers;
    5. Sell by the drink or by the package, at fairs, festivals, and other similar types of events, wine produced by it or by another licensed small farm winery, at retail to consumers if all sales occur in a wet territory;
    6. Sell and transport wine produced by it to consumers, licensed small farm winery off-premises retail sites, wholesale license holders, and small farm winery license holders;
    7. Consume on the premises wine produced by the small farm winery or a licensed small farm winery and purchased by the drink or by the package at the licensed premises, if the small farm winery is located in wet territory; and
    8. A small farm winery may sell wine at retail to consumers in accordance with KRS 243.027 to 243.029 if it holds a direct shipper license.
  3. If the requirements of KRS 242.1241 or 244.290(5) relating to Sunday sales on the licensed premises of a small farm winery are met, a small farm winery within that territory may sell alcoholic beverages on Sunday only in accordance with this section during the hours and times as permitted in the local ordinance for that locality.
  4. A small farm winery license holder may also hold an NQ2 retail drink license or an NQ4 retail malt beverage drink license if:
    1. The small farm winery is located in wet territory or in a precinct that has authorized alcoholic beverage sales by the small farm winery under KRS 242.124 ; and
    2. The issuance of these licenses is in connection with the establishment and operation of a restaurant, hotel, inn, bed and breakfast, conference center, or any similar business enterprise designed to promote viticulture, enology, and tourism.
  5. This section shall not exempt the holder of a small farm winery license from the provisions of KRS Chapters 241 to 244, nor from the administrative regulations of the board, nor from regulation by the board at all premises licensed by the small farm winery, except as expressly stated in this section.
  6. Nothing contained in this section shall exempt a licensed out-of-state winery from obeying the laws of its resident state.
  7. Upon the approval of the department, a small farm winery license may be renewed after the licensee submits to the department the winery’s federal basic permit and proof of its annual wine production.
  8. An employee of a small farm winery may sample the products produced by that small farm winery for purposes of education, quality control, and product development.

History. Enact. Acts 1976, ch. 381, § 2; 1982, ch. 244, § 2, effective July 15, 1982; 1988, ch. 433, § 2, effective July 15, 1988; 1990, ch. 54, § 5, effective July 13, 1990; 1994, ch. 451, § 1, effective July 15, 1994; 1996, ch. 148, § 1, effective July 15, 1996; 1998, ch. 357, § 1, effective July 15, 1998; 2000, ch. 167, § 1, effective July 14, 2000; 2005, ch. 142, § 1, effective June 20, 2005; 2006, ch. 179, § 1, effective January 1, 2007; 2010, ch. 24, § 569, effective July 15, 2010; 2013, ch. 121, § 62, effective June 25, 2013; 2014, ch. 115, § 3, effective July 15, 2014; 2016 ch. 80, § 15, effective July 15, 2016; 2017 ch. 62, § 54, effective June 29, 2017; 2018 ch. 164, § 4, effective April 13, 2018; 2020 ch. 80, § 19, effective July 15, 2020; 2020 ch. 102, § 10, effective July 15, 2020; 2021 ch. 20, § 4, effective March 15, 2021.

NOTES TO DECISIONS

1.Constitutionality.

Statutory scheme under former KRS 243.155(1)(d) and (f) and KRS 243.156(1)(d) and (h) (repealed effective January 1, 2007) did not evenhandedly apply the exception to the three-tier system of alcohol regulation; on the contrary, it expressly favored in-state wineries. Accordingly, it was infirm under the United States Supreme Court’s decision in Granholm v. Heald, 544 U.S. 460, 125 S. Ct. 1885, 161 L. Ed. 2d 796, 2005 U.S. LEXIS 4174 (2005).Huber Winery v. Wilcher, 488 F. Supp. 2d 592, 2006 U.S. Dist. LEXIS 60237 (W.D. Ky. 2006 ).

In-person requirement of former KRS 243.155(1)(f)(1) and KRS 243.156(1)(h)(1) (repealed effective January 1, 2007) was not narrowly tailored to achieving the “core values” of U.S. Const. amend. XXI. Huber Winery v. Wilcher, 488 F. Supp. 2d 592, 2006 U.S. Dist. LEXIS 60237 (W.D. Ky. 2006 ).

Allowing in-state wineries to ship directly to consumers in certain circumstances while prohibiting out-of-state wineries from doing the same has no differential effect on the shipment of wine into dry territories; the statutory scheme under former KRS 241.010(22) and (45), KRS 243.155(2) and KRS 243.156 (repealed effective January 1, 2007) discriminates based upon where the wine originates, not upon where it ends up; therefore, the in-state eligibility requirements are not narrowly tailored towards achieving temperance in dry territories. Huber Winery v. Wilcher, 488 F. Supp. 2d 592, 2006 U.S. Dist. LEXIS 60237 (W.D. Ky. 2006 ).

There is no facial discrimination against out-of-state wineries under KRS 241.010(44) (now 241.010(52)) and 243.155 as the 50,000 gallon limit applies equally to in-state and out-of-state wineries; further, the limit does not violate Granholm v. Heald, 544 U.S. 460, 125 S. Ct. 1885, 161 L. Ed. 2d 796, 2005 U.S. LEXIS 4174 (2005), inasmuch as there is no showing that the provision burdens out-of-state producers or shippers simply to give a competitive advantage to in-state businesses. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

The Commerce Clause does not require that out-of-state wineries be granted the exact same economic advantages as in-state wineries; however, the in-person requirement as it operates under KRS 243.155(2)(g) and KRS 244.165(2)(a) is protectionist and cannot stand. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

The in-person requirement in KRS 243.155(2)(g) and KRS 244.165(2)(a) is unconstitutional as it discriminates in practical effect against out-of-state small farm wineries and has not been shown to advance the legitimate local purposes asserted that cannot be adequately served by reasonable nondiscriminatory alternatives. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

The limit in KRS 243.155(2)(g) and 244.165(2)(c) of shipments to two cases of wine per customer per visit to the winery is evenhanded, as nothing on the face of the statute favors in-state over out-of-state wineries with respect to the two-case limit. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

Twenty-first Amendment’s grant of virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system renders the two-case limitation for small farm wineries under KRS 243.155 and KRS 244.165 easily justified. Cherry Hill Vineyards, LLC v. Hudgins, 488 F. Supp. 2d 601, 2006 U.S. Dist. LEXIS 93266 (W.D. Ky. 2006 ), aff'd, 553 F.3d 423, 2008 FED App. 0458P, 2008 U.S. App. LEXIS 26086 (6th Cir. Ky. 2008 ).

2.Local Opposition.

Local opposition to a farm winery operation was not, in and of itself, enough to block the issuance of a license pursuant to former KRS 243.156 ; an order directing the issuance of a license was proper where the requirements for a farm winery license were met and residents pointed to nothing showing that the order to grant the license was clearly erroneous. White v. Payne, 189 S.W.3d 154, 2006 Ky. App. LEXIS 74 (Ky. Ct. App. 2006).

3.Standing.

Where out of state wineries challenged the constitutionality of Kentucky’s scheme for regulating the manufacture, sale and delivery of wine, plaintiffs satisfied each element of standing because they had suffered an injury in fact, they traced their injury to the challenged statutes, and a favorable decision would redress plaintiffs’ injury. Huber Winery v. Wilcher, 2006 U.S. Dist. LEXIS 107831 (W.D. Ky. Feb. 6, 2006).

243.156. Business authorized by farm winery license — Off-premise retail sales outlet in wet territory — Use of Kentucky products — Other permitted licenses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 54, § 1, effective July 13, 1990; 1994, ch. 451, § 2, effective July 15, 1994; 1996, ch. 148, § 2, effective July 15, 1996; 1998, ch. 121, § 12, effective July 15, 1998; 1998, ch. 357, § 2, effective July 15, 1998; 2000, ch. 167, § 2, effective July 14, 2000; 2005, ch. 142, § 2, effective June 20, 2005) was repealed by Acts 2006, ch. 179, § 16, effective January 1, 2007.

243.157. Business authorized by a microbrewery license — Functions licensee permitted to perform — Microbrewery to pay wholesale and excise taxes on sales of malt beverages — Sampling by employees.

  1. A microbrewery license shall authorize the licensee to perform the following functions:
    1. Engage in the business of a brewer under the terms and conditions of KRS 243.150 , provided that production of malt beverages at the microbrewery shall not exceed fifty thousand (50,000) barrels in one (1) year;
    2. Serve on the premises complimentary samples of malt beverages produced by the microbrewery in amounts not to exceed sixteen (16) ounces per patron, provided the microbrewery is located in wet territory or a precinct that has authorized the sale of alcoholic beverages at microbreweries under KRS 242.1239 ;
    3. Sell malt beverages produced on the premises of the microbrewery to licensed distributors;
    4. Sell malt beverages produced on the premises of the microbrewery for on- and off-premises purposes in accordance with subsection (3)(b) and (c) of this section, pursuant to the following:
      1. Without restriction on the amount of malt beverages sold by the drink for on-premises consumption provided the microbrewery is located in wet territory or a precinct that has authorized the sale of alcoholic beverages at microbreweries under KRS 242.1239 ; and
      2. With a restriction on the amount of malt beverages sold for off-premises consumption, in an aggregate amount not to exceed thirty-one (31) gallons per person per day that shall not include more than three (3) cases in case format;
    5. Sell:
      1. Unlimited amounts of malt beverages by the drink; and
      2. Not more than one (1) case of packaged malt beverages; produced on the premises of the microbrewery to consumers at fairs, festivals, and other similar types of events located in wet territory, in accordance with subsection (3)(b)2. and (c)2. of this section; and
    6. Sell and deliver up to two thousand five hundred (2,500) barrels of malt beverages annually to any retail license holder, provided that:
      1. Any products sold and delivered under this paragraph that are not otherwise registered by a licensed distributor shall be registered with the department by the microbrewery; and
      2. The microbrewer notifies the distributor of any self-distribution delivery by electronic or other means.
  2. A microbrewery license shall not be deemed to be incompatible with any other license except for a distributor’s license under the provisions of KRS 243.180 .
  3. In accordance with the provisions of this section, a microbrewery license holder may:
    1. Hold retail drink and package licenses both on and off the premises of the microbrewery. The holder of a microbrewery license is exempt from the provisions of KRS 244.570 and 244.590 as applied to any retail licenses held by the microbrewery license holder, and from any other sections which would restrict the co-ownership of the microbrewery license and any retail licenses described in this section;
    2. Sell malt beverages produced on the premises of the microbrewery for on-premises purposes without having to transfer physical possession of those malt beverages to a licensed distributor provided:
      1. The microbrewery possesses a retail drink license for those premises; and
      2. The microbrewery reports and pays all taxes required by subsection (5)(a) and (b) of this section to the Department of Revenue at the time and in the manner required by the Department of Revenue in accordance with its powers under KRS 131.130(3); and
    3. Sell malt beverages produced on the premises of the microbrewery for off-premises purposes without having to transfer physical possession of those malt beverages to a licensed distributor provided that:
      1. The microbrewery possesses a retail package license for those premises; and
      2. The microbrewery reports and pays all taxes required by subsection (5)(a) and (b) of this section to the Department of Revenue at the time and in the manner required by the Department of Revenue in accordance with its powers under KRS 131.130(3).
  4. The provisions of subsection (3)(b) and (c) of this section shall apply only to malt beverages that are produced by the microbrewery at its licensed premises and:
    1. Offered for sale by the microbrewery at that same premises under the microbrewery’s retail drink or package license; or
    2. Offered for sale by the microbrewery at a fair, festival, or other similar type of event as authorized under subsection (1)(e) of this section. All other malt beverages produced by the microbrewery which are offered for retail sale shall be sold and physically transferred to a licensed distributor in compliance with all other relevant provisions of KRS Chapters 241 to 244, and a licensed microbrewery shall not otherwise affect sales of malt beverages directly to retail customers except as provided in subsection (3)(b) and (c) of this section under KRS 243.027 to 243.029 if the microbrewery holds a direct shipper license.
    1. A microbrewery selling malt beverages in accordance with subsection (1)(f) or (3)(b) and (c) of this section shall pay all wholesale sales taxes due under KRS 243.884 . For the purposes of this subsection, “wholesale sales” means a sale of malt beverages made by a microbrewery under subsection (1)(f) or (3)(b) and (c) of this section, as applicable. (5) (a) A microbrewery selling malt beverages in accordance with subsection (1)(f) or (3)(b) and (c) of this section shall pay all wholesale sales taxes due under KRS