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. “Barrel-aged and batched cocktail” means an alcoholic beverage that is:
    1. Composed of:
      1. Distilled spirits that have been dispensed from their original sealed container; and
      2. Other ingredients or alcoholic beverages;
    2. Placed into a barrel or container on the premises of a retail licensee; and
    3. Dispensed from the barrel or container as a retail sale by the drink;
  5. “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;
  6. “Board” means the State Alcoholic Beverage Control Board created by KRS 241.030 ;
  7. “Bottle” means any container which is used for holding alcoholic beverages for the use and sale of alcoholic beverages at retail;
  8. “Brewer” means any person who manufactures malt beverages or owns, occupies, carries on, works, or conducts any brewery, either alone or through an agent;
  9. “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;
  10. “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;
  11. “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;
  12. “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;
  13. “Cider” means any fermented fruit-based beverage containing seven percent (7%) or more alcohol by volume and includes hard cider and perry cider;
  14. “City administrator” means city alcoholic beverage control administrator;
  15. “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: (17) (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 ;
  16. “Commissioner” means the commissioner of the Department of Alcoholic Beverage Control;
  17. “Consumer” means a person, persons, or business organization 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; and
    4. Receives the alcoholic beverages in territory where the alcoholic beverages may be lawfully sold or received;
  18. “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;
  19. “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;
  20. “County administrator” means county alcoholic beverage control administrator;
  21. “Department” means the Department of Alcoholic Beverage Control;
  22. “Dining car” means a railroad passenger car that serves meals to consumers on any railroad or Pullman car company;
  23. “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;
  24. “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;
  25. “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;
  26. “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;
  27. “Distributor” means any person who distributes malt beverages for the purpose of being sold at retail;
  28. “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;
  29. “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;
  30. “Horse racetrack” means a facility licensed to conduct a horse race meeting under KRS Chapter 230;
  31. “Hotel” means a hotel, motel, or inn for accommodation of the traveling public, designed primarily to serve transient patrons;
  32. “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;
  33. “License” means any license issued pursuant to KRS Chapters 241 to 244;
  34. “Licensee” means any person to whom a license has been issued, pursuant to KRS Chapters 241 to 244;
  35. “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 ;
  36. “Local administrator” means a city alcoholic beverage administrator, county alcoholic beverage administrator, or urban-county alcoholic beverage control administrator;
  37. “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;
  38. “Manufacture” means distill, rectify, brew, bottle, and operate a winery;
  39. “Manufacturer” means a winery, distiller, rectifier, or brewer, and any other person engaged in the production or bottling of alcoholic beverages;
  40. “Minor” means any person who is not twenty-one (21) years of age or older;
  41. “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;
  42. “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;
  43. “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;
  44. “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;
  45. “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;
  46. “Private selection event” means a private event with a licensed distiller during which participating consumers, retail licensees, wholesalers, distributors, or a distillery’s own representatives select a single barrel or a blend of barrels of the distiller’s products to be specially packaged for the participants;
  47. “Private selection package” means a bottle of distilled spirits sourced from the barrel or barrels selected by participating consumers, retail licensees, wholesalers, distributors, microbreweries that hold a quota retail drink or quota retail package license, or a distillery’s own representatives during a private selection event;
  48. “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;
  49. “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;
  50. “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;
  51. “Repackaging” means the placing of alcoholic beverages in any retail container irrespective of the material from which the container is made;
  52. “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;
  53. “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;
  54. “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;
  55. “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;
  56. “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;
  57. “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;
  58. “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;
  59. “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;
  60. “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;
  61. “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;
  62. “State administrator” or “administrator” means the distilled spirits administrator or the malt beverages administrator, or both, as the context requires;
  63. “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;
  64. “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;
  65. “Territory” means a county, city, district, or precinct;
  66. “Urban-county administrator” means an urban-county alcoholic beverage control administrator;
  67. “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;
  68. “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;
  69. “Vintage distilled spirit” means:
    1. A private selection package; or
    2. 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;
    1. “Vintage distilled spirits seller” means a non-licensed person at least twenty-one (21) years of age who is: (72) (a) “Vintage distilled spirits seller” means a non-licensed person at least twenty-one (21) years of age who is:
      1. An administrator, executor, receiver, or other fiduciary who receives and sells vintage distilled spirits in execution of the person’s fiduciary capacity;
      2. A creditor who receives or takes possession of vintage distilled spirits as security for, or in payment of, debt, in whole or in part;
      3. A public officer or court official who levies on vintage distilled spirits under order or process of any court or magistrate to sell the vintage distilled spirits in satisfaction of the order or process; or
      4. Any other person not engaged in the business of selling alcoholic beverages.
    2. “Vintage distilled spirits seller” does not mean:
      1. A person selling alcoholic beverages as part of an approved KRS 243.630 transfer; or
      2. A person selling alcoholic beverages as authorized by KRS 243.540 ;
  70. “Warehouse” means any place in which alcoholic beverages are housed or stored;
  71. “Weak cider” means any fermented fruit-based beverage containing more than one percent (1%) but less than seven percent (7%) alcohol by volume;
  72. “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)?”;
  73. “Wholesale sale” means a sale to any person for the purpose of resale;
  74. “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;
  75. “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
  76. “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; 2022 ch. 39, § 1, effective March 24, 2022.

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, per any recipient, of any individual product in one (1) calendar year of distilled spirits or wine, or ninety-six (96) ounces, per any recipient, of any individual product in one (1) calendar year of malt beverages, to any of 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;
    5. Third-party product formulation and development partners; and
    6. Persons or entities engaged in a private selection event pursuant to Section 6 of this Act. 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; 2022 ch. 39, § 3, effective March 24, 2022.

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. A direct shipper licensee that sells alcoholic beverages under its direct shipper license for shipment to a consumer shall charge the consumer all applicable taxes and shall sell the alcoholic beverages with all applicable taxes included in the selling price. The total amount of the applicable taxes shall be identified on the consumer’s invoice and shall specifically state the amount of the applicable sales tax included in the invoice.
  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; 2022 ch. 39, § 4, effective March 24, 2022.

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
    3. Off-premises retail sales outlet, per annum $300.00
  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. Limited nonquota package license, per annum $300.00
  35. A nonrefundable fee of sixty dollars ($60) shall be charged to process each new transitional license pursuant to KRS 243.045 .
  36. 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.
  37. 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; 2022 ch. 39, § 5, effective March 24, 2022.

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), (4), (7), (9), (10), or (12) of this section, the distillery shall: (2) (a) For purposes of all retail drink and package sales that occur pursuant to subsection (3), (4), (7), (9), (10), or (12) of this section, the distillery shall:
      1. Be permitted to transfer its products from the distillery proper to the location where those retail sales occur without having to transfer physical possession of those distilled spirits to a licensed wholesaler; and
      2. Without otherwise reporting those distilled spirits to a licensed wholesaler, Report those retail sales 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);
    2. 1 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), (4), (7), (9), (10), and (12) of this section, if required by KRS 243.884 , excluding sales made by a distiller under subsection (4)(a)3. and (b) of this section that utilize a licensed wholesaler; and 2 A distiller shall Pay the excise tax on distilled spirits in accordance with KRS 243.720 and 243.730 .
    3. 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 its own private selection packages and 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 nine (9) liters per purchaser per day.
  3. A distiller may conduct private selection events and sell private selection packages at retail, as follows:
    1. Distillers may sell private selection packages to consumers who participated in a private selection event only by:
      1. Shipping the private selection packages in accordance with KRS 243.027 to 243.029 if the distiller holds a direct shipper license, but these sales and shipments shall be exempt from the quantity limitations established in KRS 243.028(1);
      2. Selling the private selection packages to the participating consumers directly from the distillery premises, but these sales shall be exempt from the quantity limitations established in subsection (3)(b) of this section; or
      3. Selling the private selection packages through a wholesaler and to a licensed retailer of the consumer’s choice. The distillery and wholesaler’s cooperation in facilitating the sale of the private selection packages to the retailer of the consumer’s choice shall not be deemed a violation of Section 12 of this Act.
    2. Except as provided in KRS 243.036 , distillers may sell private selection packages to retail licensees that participated in a private selection event only through a licensed wholesaler.
    3. A distillery shall make available for purchase not less than seventy percent (70%) of its annual private selection packages to licensed wholesalers and shall maintain records of such transactions in accordance with KRS 244.150 .
    4. Distillers may sell private selection packages to wine and distilled spirits wholesalers, malt beverage distributors, and microbreweries that hold a quota retail drink or quota retail package license that participated in a private selection event if the private selection packages resulting from the event are sold only through a licensed retailer.
  4. Hours of sale for souvenir packages sold at retail and private selection packages sold at retail shall be in conformity with KRS 244.290(3).
  5. Except as provided in this section, souvenir package and private selection 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.
  6. Souvenir packages sold to distillery visitors under subsection (3)(b) of this section, which are not made available to wholesalers licensed in Kentucky or elsewhere, shall be registered by the licensed distiller with the department and shall be sold exclusively to in-person distillery visitors in quantities not to exceed three (3) liters per person per day.
  7. 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, except in connection with a private selection event.
  8. 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.
  9. A distiller may sell to consumers at fairs, festivals, and other similar types of events located in wet territory. A distiller may:
    1. Sell alcoholic beverages by the drink, containing spirits distilled or bottled on the premises of the distillery;
    2. Sell by the package in quantities not to exceed nine (9) liters per person, per day; and
    3. Serve complimentary samples not to exceed one and three-fourths (1-3/4) ounces per person, per day.
  10. 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 or a microbrewery pursuant to KRS 243.157(1)(f). A microbrewery selling and delivering the jointly branded souvenir package directly to a distiller under this subsection shall provide notice to the distributor of any self-distribution delivery by electronic or other means.
  11. A distiller that sells souvenir packages and serves complimentary samples in accordance with this section at any of its licensed premises may, for each such premises, maintain one (1) separately licensed off-premises retail sales outlet and engage in the activities and hold the licenses authorized in subsections (3), (4), (8), (9), and (11) of this section if the off-premises retail sales outlet premises are located in wet territory or in a precinct that has authorized alcoholic beverage sales by the distillery under KRS 242.1243 . The distiller shall pay the fee required under Section 5 of this Act for each off-premises retail sales outlet it maintains.
  12. 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.
  13. 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; 2022 ch. 39, § 6, effective March 24, 2022.

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(37) 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(37)(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; 2022 ch. 39, § 14, effective March 24, 2022.

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(37)(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(37).
  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(37)(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(37)(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; 2022 ch. 39, § 15, effective March 24, 2022.

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. 156, § 27, effective July 1, 2021; 2021 ch. 48, § 1, effective June 29, 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.
    7. The holder of an NQ1 retail drink license, an NQ2 retail drink license, or a limited restaurant license may also hold a limited nonquota package 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; 2022 ch. 39, § 7, effective March 24, 2022.

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. 35, § 1, effective June 29, 2021; 2021 ch. 13, § 16, effective March 12, 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 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.
    2. A microbrewery shall pay the excise tax on malt beverages in accordance with KRS 243.720(3) and 243.730 and shall be entitled to the credit set forth in KRS 243.720(3)(b).
  5. A microbrewery shall not be located in dry territory.
  6. An employee of a microbrewery may sample the products produced by that microbrewery for purposes of education, quality control, and product development.
  7. This section does not exempt the holder of a microbrewery license from the provisions of KRS Chapters 241 to 244, nor from any rules of the board as established by administrative regulations, nor from regulation by the board, except as expressly stated in this section. The provisions of this section shall not be deemed inconsistent with the provisions of KRS 244.602 .
  8. Nothing in this section shall be construed to vitiate the policy of this Commonwealth, as set forth in KRS 244.167 and 244.602 , supporting an orderly three (3) tier system for the production and sale of malt beverages.

History. Enact. Acts 1984, ch. 60, § 1, effective July 13, 1984; 1992, ch. 25, § 1, effective July 14, 1992; 2013, ch. 121, § 104, effective June 25, 2013; 2016 ch. 80, § 16, effective July 15, 2016; 2017 ch. 62, § 55, effective June 29, 2017; 2018 ch. 16, § 1, effective July 14, 2018; 2020 ch. 80, § 20, effective July 15, 2020; 2020 ch. 102, § 9, effective July 15, 2020; 2021 ch. 34, § 1, effective June 29, 2021.

Legislative Research Commission Notes.

(7/15/2020). Although 2020 Ky. Acts ch. 102, sec. 9 contained citations to “Section 4 of this Act” (codified as KRS 243.100 ) in subsection (1)(b) and (d)l. of this statute, it is clear from the context that Section 8 (codified as KRS 242.1239 ) was intended, and the Reviser of Statutes has corrected this manifest clerical or typographical error in codification under the authority of KRS 7.136 .

243.160. Business authorized by wholesaler’s license.

  1. A licensed wholesaler may purchase, receive, store, or possess distilled spirits and wine to sell at wholesale, from the licensed premises only, and to transport to and from the licensed premise only alcoholic beverages that the wholesaler’s license authorizes the licensee to sell. The wholesaler may transport:
    1. Beverages in the manner provided for manufacturers in KRS 243.120 ; and
    2. Distilled spirits and wine from a manufacturer’s warehouse or from another licensed wholesaler’s premises to the licensed wholesaler premises.
  2. The holder of a wholesaler’s license may sell and transport its products to the holder of a special nonbeverage alcohol license.

HISTORY: 2554b-120: amend. Acts 1942, ch. 168, §§ 2, 11; 1952, ch. 80, § 1, effective June 19, 1952; repealed and reenact., Acts 2013, ch. 121, § 63, effective June 25, 2013; 2017 ch. 62, § 56, effective June 29, 2017.

NOTES TO DECISIONS

1.Transportation License.

KRS 243.120 and this section do not provide for license to individual to transport alcoholic beverages independent of license to deal in them as a 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:

Burke v. Stitzel-Weller Distillery, 284 Ky. 676 , 145 S.W.2d 861, 1940 Ky. LEXIS 565 ( Ky. 1940 ).

243.170. Transactions permitted to wholesalers.

  1. A wholesaler may sell, deliver, and transport distilled spirits and wine at wholesale, and from the licensed premises only, to:
    1. Other wholesalers;
    2. Retailers; or
    3. A point out of the state to persons authorized by the law of the state of their residence, and by the United States government if located in the United States, to receive the distilled spirits and wine.
  2. A wholesaler may purchase distilled spirits and wine at wholesale from licensed distillers, rectifiers, wineries, or other wholesalers and from nonresidents authorized by the law of the states of their residence, and by the United States government if located in the United States, to make the sales. A wholesaler may not transport distilled spirits and wine from any point to its own licensed premises, except as provided in KRS 243.200 .
  3. No wholesaler shall sell or contract to sell, give away, or deliver any distilled spirits or wine to any person in Kentucky who is not licensed to receive, possess, distribute, or sell distilled spirits and wine, and no wholesaler shall sell or contract to sell, give away, or deliver any distilled spirits or wine to any consumer. This section does not permit sales or deliveries of distilled spirits in Kentucky by licensed wholesalers to nonresidents who are not licensed by their own states.
  4. A wholesaler may extend credit on distilled spirits and wine sold to retail licensees for a period not to exceed thirty (30) days from the date of invoice, with the date of invoice included in the total number of days. When the thirty (30) day period has passed without payment in full, no wholesaler shall sell to the licensee except for cash on delivery.

HISTORY: 2554b-121: amend. Acts 1972, ch. 334, § 1; 2004, ch. 123, § 1, effective July 13, 2004; 2013, ch. 121, § 64, effective June 25, 2013; 2014, ch. 22, § 13, effective July 15, 2014; 2017 ch. 62, § 57, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Burke v. Stitzel-Weller Distillery, 284 Ky. 676 , 145 S.W.2d 861, 1940 Ky. LEXIS 565 ( Ky. 1940 ).

243.180. Business authorized by distributor’s license.

  1. A distributor’s license shall authorize the licensee to:
    1. Purchase malt beverages from Kentucky breweries or from out-of-state breweries or distributors licensed to do business by the state in which they are located;
    2. Import a non-United States brand malt beverage from an importer or wholesaler registered with the Kentucky Department of Revenue;
    3. Sell his or her products to the holder of a special nonbeverage alcohol license; or
    4. Store malt beverages and to sell them only, from the licensed premises, to other distributors, to licensed retailers, to any of its employees for home consumption, and to charitable or fraternal organizations holding group meetings, picnics, or outings.
  2. A distributor shall transport malt beverages only by a vehicle owned, rented, or leased and operated by the distributor, 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. No distilled spirits or wine shall be transported on the same truck or vehicle with malt beverages, except by a common carrier, unless the owner of such truck or vehicle holds a wholesaler’s license.
  3. A distributor’s license must be obtained for each separate warehouse, agent, distributor, broker, jobber, or place of business from which orders are received or beverages are distributed unless it is a licensed brewery.

History. 2554b-199: amend. Acts 1954, ch. 178; 1960, ch. 205, § 2; 1962, ch. 165; 1978, ch. 194, § 13, effective June 17, 1978; 1986, ch. 14, § 2, effective July 15, 1986; 2005, ch. 85, § 647, effective June 20, 2005; 2013, ch. 121, § 65, effective June 25, 2013.

NOTES TO DECISIONS

1.License Tax by City.

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. Russell v. Morris, 292 Ky. 594 , 167 S.W.2d 321, 1942 Ky. LEXIS 141 ( Ky. 1942 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ).

2.Regulation of Sale.

KRS 243.150 relates to business authorized by holder of brewer’s license and this section 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 ).

Opinions of Attorney General.

A Kentucky distributor may not purchase or transport beer from a distributor or retailer having no agreement or surety bond on file with the department for alcoholic beverage control or the state department of revenue. OAG 80-629 .

243.190. Certain distributors may repackage malt beverages. [Repealed.]

Compiler’s Notes.

This section (2554b-216) was repealed by Acts 1970, ch. 94, § 7.

243.200. Transporter’s license, authority for issuance to certain motor carriers or to common carrier — Holder’s privileges, duties, and restrictions — Delivery or shipment of alcoholic beverages with adult-signature-only service — Authority to examine vehicle and cargo — When transporter’s license not required — Conveyances to be made in properly marked vehicle — Required maintenance of books and records.

  1. A transporter’s license may be issued as a primary license to a motor carrier authorized to transact business in the Commonwealth by the Transportation Cabinet or the Federal Motor Carrier Safety Administration or to another person engaged in business as a common carrier. A person holding a transporter’s license may transport alcoholic beverages to or from the licensed premises of any licensee under this chapter to an individual consumer if both the consignor and consignee in each case are authorized by the law of the states of their residence to sell, purchase, deliver, ship, or receive the alcoholic beverages.
  2. A transporter may deliver or ship to consumers over twenty-one (21) years of age in packages clearly marked “Alcoholic Beverages, adult signature (21 years of age or over) required,” and shall request adult-signature-only service from the carrier. Deliveries or shipments of alcoholic beverages shall only be made into areas of the state in which alcoholic beverages may be lawfully sold. When the shipper requests adult-signature-only service, it shall be a violation for a common carrier not to inspect government-issued identification for proof of age. No properly licensed common carrier or any o(its employees acting on behalf of a consignor in the course and scope of a delivery or shipment of alcoholic beverages to a consumer shall be liable for a violation of this subsection or any provision of KRS 242.250 , 242.260 , or 242.270 prohibiting the delivery or shipment of alcoholic beverages into areas of the state in which alcoholic beverages are not lawfully sold.
  3. Except for a common carrier that has been assigned a USDOT number issued by the Federal Motor Carrier Safety Administration, the holder of a transporter’s license shall cause each truck or vehicle to display the name of the licensee and the state license numbers in a manner prescribed by an administrative regulation promulgated by the board.
  4. Except for an application by a common carrier that has been assigned a USDOT number issued by the Federal Motor Carrier Safety Administration, an application for a transporter’s license shall include a statement that the applicant, if issued a license, shall allow any authorized investigators of the department to stop and examine the cargo of any truck or vehicle in which alcoholic beverages are being transported within the boundaries of the Commonwealth of Kentucky.
  5. A licensee may move, within the same county, alcoholic beverages from one (1) of the licensee’s licensed premises to another without a transporter’s license. A licensee may move alcoholic beverages from one (1) of the licensee’s licensed premises located in one (1) county to a licensed premises located in another county, without a transporter’s license, with prior written approval of the administrator for good cause shown. The licensee shall keep and maintain, in one (1) of its licensed premises, adequate books and records of the transactions involved in transporting alcoholic beverages from one (1) licensed premises to another in accordance with standards established in administrative regulations promulgated by the board. The records shall be available to the department and the Department of Revenue upon request.
  6. Distilled spirits and wine may be transported by any licensed retailer selling distilled spirits or wine, by the package or by the drink, from the premises of a licensed wholesaler to the licensed premises of the retail licensee. Any retailer transporting alcoholic beverages under this subsection shall do so in a vehicle marked in conformity with administrative regulations of the board. Both the wholesaler and the retailer engaging in activity under this subsection shall be responsible for maintaining records documenting the transactions.

History. Repealed and reenacted by 2017 ch. 62, § 58, effective January 1, 2018; 2554b-124, 2554b-154, 2554b-190: amend. Acts 1966, ch. 255, § 214; 1998, ch. 295, § 1, effective July 15, 1998; 2003, ch. 37, § 1, effective June 24, 2003; 2005, ch. 85, § 647, effective June 20, 2005; 2010, ch. 24, § 570, effective July 15, 2010; 2013, ch. 121, § 66, effective June 25, 2013; 2014, ch. 22, § 14, effective July 15, 2014; 2017 ch. 62, § 58, effective June 29, 2017; 2018 ch. 164, § 5, effective April 13, 2018; 2020 ch. 80, § 10, effective July 15, 2020; 2020 ch. 102, § 6, 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.

(6/29/2017). This statute was repealed and reenacted by 2017 Ky. Acts ch. 62, sec. 58 and amended by 2017 Ky. Acts ch. 177, sec. 6. Pursuant to KRS 446.260 , the repeal and reenactment in 2017 Ky. Acts ch. 62, sec. 58 prevails.

(7/15/2014). As amended by 2014 Ky. Acts ch. 22, sec. 14, subsection (9)(b) of this statute contains an erroneous reference to “residence requirements” of KRS 244.090 . Although certain licensees were previously prohibited from employing any person who “has not had an actual bona fide residence in this Commonwealth for at least one (1) year” or “is not a citizen of the United States,” the General Assembly removed the state residency requirement from that statute in 1978 Ky. Acts ch. 194, sec. 19, and the national citizenship requirement in 1998 Ky. Acts ch. 522, sec. 20. The reference to KRS 243.100 is correct.

NOTES TO DECISIONS

1.Constitutionality.

Provisions of Kentucky’s Alcohol Beverage Control Act forbidding the carriage of intoxicating liquors by carriers other than licensed common carriers and forbidding distillers to deliver to an unauthorized carrier did 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.Police Power.

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 ).

3.Transportation.

Since Legislature has attempted to regulate liquor traffic completely, right to transport alcoholic beverages in state is not inherent right, but must exist through compliance with law and as incident to character of license held by person claiming right to transport. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

4.— Licenses.

Under KRS 243.030 , 243.120 , 243.160 , 243.180 and this section, licenses to transport may be granted only to railroad and express companies, holders of transport licenses, and to manufacturers, wholesalers and distributors as an incident to their business. Commonwealth use of Hazard v. Day, 287 Ky. 176 , 152 S.W.2d 597, 1941 Ky. LEXIS 519 ( Ky. 1941 ).

5.— Routes.

Where a distilled spirit and transporter’s license did not designate any points or routes, but was conditioned upon the holding of a common carrier certificate, such license authorized transportation of distilled spirits only between the points and over the routes designated in the common carrier certificate. Medley v. Edward Torstrick Transfer Co., 267 S.W.2d 534, 1954 Ky. LEXIS 843 ( Ky. 1954 ).

It was unlawful to transport whiskey over highways not designated in license, despite contention that safe passage over such highways was prevented by snow in adjoining state, since, if impracticable to traverse designated routes, licensee must inform board and request that license be extended to route practicable for travel. Commonwealth v. Williams, 287 Ky. 489 , 153 S.W.2d 985, 1941 Ky. LEXIS 569 ( Ky. 1941 ).

6.City Street Use Tax.

The fact that liquor wholesaler held transporter’s license under this section, authorizing him to “transport” liquor, would not exempt him from a city street use tax imposed by ordinance on all trucks using city streets. Vertner Smith Co. v. Elsmere, 308 Ky. 442 , 214 S.W.2d 765, 1948 Ky. LEXIS 955 ( Ky. 1948 ).

The mere fact of operating with a permit under the control act does not in any way limit a municipality in, or deprive a municipality of, the right of regulating the use of its streets. Vertner Smith Co. v. Elsmere, 308 Ky. 442 , 214 S.W.2d 765, 1948 Ky. LEXIS 955 ( Ky. 1948 ).

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).

243.205. Business authorized by transporter’s license — Transportation of distilled spirits, wine, and malt beverages — Entities eligible for license — Reports to Department of Revenue — Restrictions upon routes traveled — Examination of cargo — Illegal trafficking — Exemption from KRS 243.100 and 244.090. [Repealed.]

Compiler's Notes

This section (Enact. Acts 2013, ch. 121, § 36, effective June 25, 2013) was repealed by Acts 2014, ch. 11, § 26, effective July 15, 2014.

243.210. Business authorized by malt beverage transporter’s license. [Repealed.]

Compiler’s Notes.

This section (2554b-202: amend. Acts 1978, ch. 194, § 14, effective June 17, 1978) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.212. Distilled spirits and wine supplier’s license authorizing importation of distilled spirits and wine — Nonresident entities eligible for license — Licenses and limited licenses — Exemption from notice requirements of KRS 243.360.

  1. An out-of-state distiller, wholesaler, rectifier, winery, small farm winery, importer for a distillery, winery, or small farm winery, or importer of a non-United States brand of distilled spirits or wine, who is the primary source of supply, may obtain a distilled spirits and wine supplier’s license for importing distilled spirits and wine into Kentucky if it is:
    1. Licensed to do business in the state in which it is located; and
    2. Registered with the Kentucky Department of Revenue.
  2. An entity listed in subsection (1) of this section who wishes to import more than fifty thousand (50,000) gallons of distilled spirits or wine shall:
    1. Apply for an out-of-state distilled spirits and wine supplier’s license on an application provided by the department;
    2. Submit documentation required by the application; and
    3. Pay the annual fee required by KRS 243.030 .
  3. An entity listed in subsection (1) of this section who wishes to import less than fifty thousand (50,000) gallons of distilled spirits or wine shall:
    1. Apply for a limited out-of-state distilled spirits and wine supplier’s license on an application provided by the department;
    2. Submit documentation required by the application; and
    3. Pay the annual fee required by KRS 243.030 .

An out-of-state applicant shall be exempt from the notice requirements of KRS 243.360 .

HISTORY: Enact. Acts 2013, ch. 121, § 35, effective June 25, 2013; 2017 ch. 62, § 59, effective June 29, 2017.

243.215. Malt beverage supplier’s license authorizing importation of malt beverages — Nonresident entities eligible for license — Licenses and limited licenses — Exemption from notice requirements of KRS 243.360.

  1. An out-of-state brewer, distributor, importer for a brewer, or importer of a non-United States brand of malt beverage, who is the primary source of supply, may obtain a malt beverage supplier’s license for importing a malt beverage product into Kentucky if it is:
    1. Licensed to do business in the state in which it is located; and
    2. Registered with the Kentucky Department of Revenue.
  2. An entity listed in subsection (1) of this section who wishes to import more than twenty-five thousand (25,000) barrels or seven hundred seventy-five thousand (775,000) gallons of malt beverage shall:
    1. Apply for an out-of-state malt beverage supplier’s license on an application provided by the department;
    2. Submit documentation required by the application; and
    3. Pay the annual fee required by KRS 243.040 .
  3. An entity listed in subsection (1) of this section who wishes to import less than twenty-five thousand (25,000) barrels or seven hundred seventy-five thousand (775,000) gallons of malt beverage shall:
    1. Apply for a limited out-of-state malt beverage supplier’s license on an application provided by the department;
    2. Submit documentation required by the application; and
    3. Pay an annual fee required by KRS 243.040 .
  4. An out-of-state applicant shall be exempt from the notice requirements of KRS 243.360 .

HISTORY: Enact. Acts 2013, ch. 121, § 34, effective June 25, 2013; 2017 ch. 62, § 60, effective June 29, 2017.

243.217. Business authorized by air transporter’s license — Commercial airline system, charter flight system, or commercial cargo system eligible for license upon payment of fee — Annual renewal.

The department may issue an air transporter’s license to a commercial airline system, a charter flight system, or a commercial cargo system, upon the payment of the required fee. This license may be renewed annually. The license shall authorize the licensee to transport distilled spirits, wine, and malt beverages, into and out of Kentucky, upon regularly scheduled or charter flights of the licensee. The license shall authorize, for the purpose of transportation, the storage of distilled spirits, wine, and malt beverages at a location or locations, if operating from more than one (1) airport in Kentucky, as designated on the license application. This license shall authorize an airline to transport if both the consignor and consignee in each case are authorized by the laws of the states of their residence to sell, purchase, ship, or receive the distilled spirits, wine, and malt beverages.

History. Enact. Acts 2013, ch. 121, § 39, effective June 25, 2013.

243.220. Premises that may not be licensed for sales at retail — Exemption.

No license shall be issued for any premises unless the applicant for the license is the owner of the premises or is in possession of the premises under a written agreement or a permit for a term of not less than the license period. A direct shipper license applicant shall be exempt from the requirements of this section, and shall instead follow the requirements as set forth in KRS 243.027 .

History. 2554b-174, 2554b-175, 2554b-177: amend. Acts 1944, ch. 154, § 13; 1974, ch. 10, § 1; 1978, ch. 194, § 15, effective June 17, 1978; 1998, ch. 121, § 13, effective July 15, 1998; 2000, ch. 289, § 5, effective July 14, 2000; 2012, ch. 125, § 4, effective July 12, 2012; 2017 ch. 62, § 61, effective June 29, 2017; 2021 ch. 13, § 7, effective March 12, 2021.

NOTES TO DECISIONS

1.Constitutionality.

In light of Larkin v. Grendel’s Den, 459 U.S. 116, 103 S. Ct. 505, 74 L. Ed. 2d 297, 1982 U.S. LEXIS 170 (1982), former subsection (3) of this section, providing that no license for the retail sale of alcoholic beverages shall be issued for any premises located within 200 feet of a building used primarily as a church or for classrooms of a school if the governing authority of the church or school files a written protest, is unconstitutional as being in violation of the establishment clause of the First Amendment. Farris v. Minit Mart Foods, Inc. No. 37, 684 S.W.2d 845, 1984 Ky. LEXIS 280 ( Ky. 1984 ).

2.Street.

“Street or avenue” as used in this section includes a public highway outside a city or town. Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ).

3.— Location of Premises.

In determining on which street premises are located, and distance contemplated in prohibiting granting of license within 200 feet of church, school or hospital, the controlling factor is not the entrance to either building nor how they face, but the land on which the buildings are located, and the distance must be measured in a straight line from and to nearest points of respective properties. Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ).

Fact that corner building was back from street, on which church was located, a sufficient distance to permit the parking of automobiles, did not prevent premises from being on same street as church. Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ).

Premises located on corner within 200 feet of church on one street was within restricted area, although single entrance to premises was located on other street. Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ).

4.Measurement.

Measurement of distance between church on one street and business premises located on a different street must be taken by turning necessary corners and including all distance between and is not to be taken as crow flies. Hunt Club, Inc. v. Moberly, 407 S.W.2d 148, 1966 Ky. LEXIS 150 ( Ky. 1966 ).

5.Option to Purchase or Lease.

The board may approve the application for the license where the applicant holds an option to purchase the premises or where the applicant holds a lease contingent upon the issuance of a license by withholding the actual issuance of the license until the requirements of the statute have been fulfilled. Angel v. Moberly, 425 S.W.2d 538, 1968 Ky. LEXIS 416 ( Ky. 1968 ).

6.Invalid Regulation.

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 this section. Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ).

Cited:

Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); Reinsperg v. Reed, 313 Ky. 683 , 233 S.W.2d 412, 1950 Ky. LEXIS 964 ( Ky. 1950 ); Barnett v. Portwood, 328 S.W.2d 164, 1959 Ky. LEXIS 102 ( Ky. 1959 ).

Research References and Practice Aids

Kentucky Law Journal.

Coldiron, Statutory Interpretation — Department of Revenue v. McIlvain, 35 Ky. L.J. 352 (1947).

243.230. Premises for which retail package, drink, and malt beverage licenses may be issued.

  1. Except as limited by subsection (2) of this section, quota retail drink licenses may be issued for premises located within urban-county governments, incorporated cities, or elsewhere in counties if those cities and counties maintain an adequate police force.
  2. Quota retail drink licenses may not be issued to premises located within a city or a county that has enacted an ordinance preventing the issuance of these licenses within the jurisdiction of the local government.

    1. Quota retail package licenses may be issued only for premises located within: (3)  (a) Quota retail package licenses may be issued only for premises located within:
      1. Incorporated cities; or
      2. Elsewhere in counties containing an urban-county government or a city with a population equal to or greater than eight thousand (8,000) if those counties maintain an adequate police force.
    2. If one (1) or more quota retail package licenses have been issued to establishments in a county that does not contain a city meeting the population requirements of paragraph (a) of this subsection prior to January 1, 2015, then that county shall continue to be treated in a manner as if the county meets the qualifications of paragraph (a) of this subsection.
  3. Notwithstanding subsection (3) of this section, the department may, after a field investigation, issue a quota retail package license to premises not located within any city if the county maintains an adequate police force under KRS 70.540 and 70.150 to 70.170 , and if:
    1. Substantial aggregations of population would otherwise not have reasonable access to a licensed vendor;
    2. The premises to be licensed under this subsection shall be used exclusively for the sale of distilled spirits and wine by the package and malt beverages, where applicable, and shall not be used in any manner, in connection with a dance hall, roadhouse, restaurant, store, or any other commercial enterprise, except as a drug store in which a registered pharmacist is employed.
  4. No quota retail package license or quota retail drink license for the sale of distilled spirits or wine shall be issued for any premises used as or in connection with the operation of any business in which a substantial part of the commercial transaction consists of selling at retail staple groceries or gasoline and lubricating oil.

HISTORY: 2554b-129, 2554b-154: amend. Acts 1944, ch. 154, § 33; 2017 ch. 62, § 62, effective June 29, 2017.

NOTES TO DECISIONS

1.Constitutionality.

The fact that residents of dry counties may have to purchase liquor at anticompetitive prices does not overcome the regulatory interests of the Commonwealth under the Twenty-First Amendment. Simms v. Farris, 657 F. Supp. 119, 1987 U.S. Dist. LEXIS 2949 (E.D. Ky. 1987 ), aff'd, 840 F.2d 18, 1988 U.S. App. LEXIS 2439 (6th Cir. Ky. 1988 ).

This section does not violate substantive due process and equal protection, since there exists a rational basis for it, namely, the need to regulate establishments serving alcoholic beverages. Simms v. Farris, 657 F. Supp. 119, 1987 U.S. Dist. LEXIS 2949 (E.D. Ky. 1987 ), aff'd, 840 F.2d 18, 1988 U.S. App. LEXIS 2439 (6th Cir. Ky. 1988 ).

This section is exempt from scrutiny under the antitrust laws by virtue of the fact that it is a proper exercise of the Commonwealth’s “core power” under the Twenty-First Amendment to the Constitution of the United States.Simms v. Farris, 657 F. Supp. 119, 1987 U.S. Dist. LEXIS 2949 (E.D. Ky. 1987 ), aff'd, 840 F.2d 18, 1988 U.S. App. LEXIS 2439 (6th Cir. Ky. 1988 ).

“Statute” (Ky. Rev. Stat. § 243.230(5) and its accompanying regulation, 804 Ky. Admin. Regs. 4:270) offends the Equal Protection Clause and, for that reason, must be struck down as unconstitutional. Maxwell's Pic-Pac, Inc. v. Dehner, 887 F. Supp. 2d 733, 2012 U.S. Dist. LEXIS 114420 (W.D. Ky. 2012 ), aff'd in part and rev'd in part, 739 F.3d 936, 2014 FED App. 15P, 2014 U.S. App. LEXIS 761 (6th Cir. Ky. 2014 ), dismissed, 2014 U.S. Dist. LEXIS 93572 (W.D. Ky. July 9, 2014).

Statute satisfied rational-basis review because the State maintained a legitimate interest in reducing access to products with high alcohol content, and it did not violate separation of powers, Ky. Const. §§ 28-29, as it granted limited discretion to the administrative board and limited the board’s authority to define the terms of the statute; the statute affected no liberty interest and did not offend a property right, avoiding procedural due-process scrutiny. Maxwell's Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 2014 FED App. 0015P, 2014 U.S. App. LEXIS 761 (6th Cir. Ky. 2014 ).

2.License Taxes.

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 ).

3.Unreasonable Access of Population.

The determination of whether “substantial aggregations of population would otherwise not have reasonable access to a licensed vendor” is a matter of factfinding and not one of the exercise of discretionary power. Angel v. Palmer-Ball, 461 S.W.2d 105, 1970 Ky. LEXIS 613 ( Ky. 1970 ).

The alcoholic beverage control board was without authority to issue a license to sell distilled spirits and wine by the package under this provision of the statute without first making a specific finding of fact that substantial aggregations of populations would not have reasonable access to a licensed vendor if such license was not issued, and a general finding of ultimate fact that “the premises * * * meet all of the requirements of the laws and regulations * * * for a * * * license” was not sufficient to authorize the issuance of the license. Pearl v. Marshall, 491 S.W.2d 837, 1973 Ky. LEXIS 608 ( Ky. 1973 ).

Where the board merely recited “substantial aggregations of population would otherwise not have reasonable access to a license vendor unless the license sought by the applicant here is issued,” the Circuit Court was correct in holding that just recitation of an ultimate fact was insufficient to withstand judicial review. Simms v. Angel, 513 S.W.2d 176, 1974 Ky. LEXIS 370 ( Ky. 1974 ).

4.Previous Application Denied.

Where one of the applicants for a license was barred by res judicata and the other was not, the license could not be granted to the unbarred applicant alone, for that was not how the application was filed. Angel v. Palmer-Ball, 461 S.W.2d 105, 1970 Ky. LEXIS 613 ( Ky. 1970 ).

Where one of the applicants had previously applied with another individual for a license for the same location and was denied, he was barred by the doctrine of res judicata on a second application. Angel v. Palmer-Ball, 461 S.W.2d 105, 1970 Ky. LEXIS 613 ( Ky. 1970 ).

A denial of an application five years earlier due to inadequate police protection and the existence of an adequate number of licensed vendors to serve the area was not res judicata as to another application by the same applicants where there was sufficient proof of changed conditions. Dink v. Palmer-Ball, 479 S.W.2d 897, 1972 Ky. LEXIS 327 ( Ky. 1972 ).

5.Aggregations of Populations.

The words “aggregations of population” of subsection (3) (now subsection (6)(a)) of this section connote a relatively fixed and stable body of people in the immediate vicinity of the rural premises involved and do not include casual transients nor the residents of an adjacent dry territory. Simms v. Angel, 513 S.W.2d 176, 1974 Ky. LEXIS 370 ( Ky. 1974 ).

The words, “aggregations of population,” as used in subsection (3) (now subsection (6)(a)) of this section do not include the residents of adjacent dry territory. Simms v. Angel, 513 S.W.2d 176, 1974 Ky. LEXIS 370 ( Ky. 1974 ).

Where the present holder of a valid retail package liquor license issued for premises situated in the rural or nonincorporated area of a county applies “to transfer” the license to another rural location in the same county and within the same general geographic area, it is within the discretionary power of the alcoholic beverage control board to approve and authorize such “transfer” if the applicant for the new license has previously shown that substantial aggregations of population would not otherwise have reasonable access to a licensed vendor. Hagan v. Knippenberg, 549 S.W.2d 509, 1976 Ky. LEXIS 151 ( Ky. 1976 ).

It is only where there is a distinction between the area being served and the area to be served that a finding that substantial aggregations of population would not otherwise have reasonable access to a vendor would be required. Hagan v. Knippenberg, 549 S.W.2d 509, 1976 Ky. LEXIS 151 ( Ky. 1976 ).

Where the record is devoid of any evidence showing that substantial aggregations of population would not have reasonable access to a vendor if application to transfer is denied, the granting of a retail package liquor license for premises not located within a city was an abuse of discretion. Higdon v. Knippenberg, 549 S.W.2d 513, 1976 Ky. LEXIS 152 ( Ky. 1976 ).

6.Malt Beverages.

The limitation of this section is applicable only to distilled spirits or wine, it does not purport to regulate the sale of malt beverages, thus the regulation of such beverage was intentionally left to the city legislative body. Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 1976 Ky. LEXIS 46 ( Ky. 1976 ).

7.Monopoly.

No truly effective monopoly was conferred on any licensee under this section, since persons desiring to obtain liquor could easily obtain it by driving into a city or to the next establishment. Simms v. Farris, 657 F. Supp. 119, 1987 U.S. Dist. LEXIS 2949 (E.D. Ky. 1987 ), aff'd, 840 F.2d 18, 1988 U.S. App. LEXIS 2439 (6th Cir. Ky. 1988 ).

Cited:

Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); Alcoholic Beverage Control Board v. Hall, 297 Ky. 432 , 180 S.W.2d 293, 1944 Ky. LEXIS 743 ( Ky. 1944 ); Barnett v. Portwood, 328 S.W.2d 164, 1959 Ky. LEXIS 102 ( Ky. 1959 ); Alcoholic Beverage Control Board v. Woosley, 367 S.W.2d 127, 1963 Ky. LEXIS 12 ( Ky. 1963 ).

Opinions of Attorney General.

Former KRS 243.032 (repealed, 2013) created a separate and distinct license known as the restaurant wine license and such a license is separate and distinct from the type of licenses anticipated by the provisions of this section and, therefore, this section is not grounds for authority to refuse to issue a restaurant wine license in a city of the fourth class which has held a local option election and which has voted to go wet. OAG 78-427 .

243.232. Sale and resale of vintage distilled spirits.

  1. A person holding a license to sell distilled spirits by the drink or by the package at retail may sell vintage distilled spirits purchased from a nonlicensed person upon written notice to the department in accordance with administrative regulations promulgated by the department.
  2. Vintage distilled spirits may be resold only:
    1. By the drink by a person holding a license to sell distilled spirits by the drink; and
    2. By the package by a person holding a license to sell distilled spirits by the package.
  3. Vintage distilled spirits may be sold or resold by the package by a person holding a limited nonquota package license.
  4. A vintage distilled spirits seller shall sell no more than twenty-four (24) vintage distilled spirits packages in any given twelve (12) month period.
  5. Prior to selling vintage distilled spirits purchased from a vintage distilled spirits seller to a consumer, a licensee shall provide notice of its purchase of the spirits to the department. The notice shall contain the following information:
    1. The name, address, state license number, and phone number of the licensee purchasing vintage distilled spirits;
    2. The name, address, and phone number of the vintage distilled spirits seller;
    3. The brand name and quantity of each vintage distilled spirits package purchased;
    4. The date of the purchase; and
    5. The number of packages that the licensee has previously purchased from the same vintage distilled spirits seller and the dates of those purchases.

HISTORY: 2017 ch. 59, § 2, effective January 1, 2018; 2022 ch. 39, § 8, effective March 24, 2022.

243.240. Business authorized by quota retail package license — Delivery of alcoholic beverages purchased on premises by consumers.

  1. A quota retail package license shall authorize the licensee to:
    1. Purchase, receive, possess, and sell distilled spirits and wine at retail in unbroken packages only, and only for consumption off the licensed premises;
    2. Deliver to the consumer, at the consumer’s request, alcoholic beverages that are purchased from the licensed premises, in quantities not to exceed four and one-half (4 1/2) liters of distilled spirits and four (4) cases of wine per consumer per day for sales prior to January 1, 2021, and in quantities not to exceed an aggregate of nine (9) liters of distilled spirits and four (4) cases of wine per consumer per day on and after January 1, 2021; and
      1. Sell distilled spirits and wine in unbroken packages only at fairs and festivals held in wet territory if the fair or festival is located in the same county as the quota retail package license holder’s licensed premises; and (c) 1. Sell distilled spirits and wine in unbroken packages only at fairs and festivals held in wet territory if the fair or festival is located in the same county as the quota retail package license holder’s licensed premises; and
      2. Notwithstanding KRS 243.0307 , sell and provide samples of distilled spirits and wine at fairs and festivals held in wet territory if the fair or festival is located in the same county as the quota retail package license holder’s licensed premises.
  2. The licensee shall purchase distilled spirits and wine in retail packages only and only from:
    1. Licensed wholesalers;
    2. Those licensees authorized to sell distilled spirits and wine by the package at retail, but only if the distilled spirits and wine have first gone through the three (3) tier system; or
    3. From a distillery souvenir gift shop.
  3. The restrictions and permissions for sales to quota retail package licensees and to consumers that are authorized under subsection (4) of Section 6 of this Act shall supersede any conflicting provisions of this section.

History. 2554b-122; 2013, ch. 121, § 68, effective June 25, 2013; 2017 ch. 62, § 63, effective June 29, 2017; 2018 ch. 164, § 6, effective April 13, 2018; 2020 ch. 80, § 11, effective July 15, 2020; 2021 ch. 13, § 20, effective March 12, 2021; 2022 ch. 39, § 9, effective March 24, 2022.

NOTES TO DECISIONS

1.Retail Drink License.

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 ).

2.Private Club License.

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:

Commonwealth v. Kiddy, 292 Ky. 34 , 165 S.W.2d 969, 1942 Ky. LEXIS 27 ( Ky. 1942 ); Howard v. Kentucky Alcoholic Beverage Control Board, 294 Ky. 429 , 172 S.W.2d 46, 1943 Ky. LEXIS 472 ( Ky. 1943 ).

243.241. Quota retail package licensee assumes business risk of subsequent increase of quota licenses in territory.

A quota retail package licensee assumes the business risk that the number of quota licenses available in a city or county may be increased at a later time.

HISTORY: 2018 ch. 154, § 7, effective April 14, 2018.

243.250. Business authorized by quota retail drink license.

A quota retail drink license shall authorize the licensee to purchase, receive, possess, and sell distilled spirits and wine at retail by the drink for consumption on the licensed premises, or off-premises consumption pursuant to KRS 243.081 . The licensee shall purchase distilled spirits and wine only from licensed wholesalers.

History. 2554b-123: amend. Acts 1970, ch. 136, § 1; 1978, ch. 194, § 16, effective June 17, 1978; 1998, ch. 522, § 8, effective July 15, 1998; 2012, ch. 125, § 6, effective July 12, 2012; 2013, ch. 121, § 69, effective June 25, 2013; 2014, ch. 22, § 16, effective July 15, 2014; 2017 ch. 62, § 64, effective June 29, 2017; 2021 ch. 20, § 5, effective March 15, 2021.

NOTES TO DECISIONS

1.Retail Drink License.

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 ).

2.Private Club License.

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:

Newport v. Tye, 335 S.W.2d 340, 1960 Ky. LEXIS 257 ( Ky. 1960 ).

243.260. Special temporary license for qualifying event — Activities permitted and prohibited.

  1. A special temporary license may be issued in wet territory to any regularly organized fair, exposition, racing association, farmers market, or other party, when in the opinion of the board a necessity for the license exists. Unless inconsistent with this section, a special temporary licensee shall have the same privileges and restrictions of a quota retail drink licensee and an NQ4 retail malt beverage drink licensee at the designated premises, not to exceed thirty (30) days.
  2. A nonprofit organization holding an NQ4 retail malt beverage drink license may be issued a special temporary license to sell distilled spirits and wine by the drink on the licensed premises for a specified and limited time, not to exceed ten (10) days. The temporary license may be issued in conjunction with any public or private event, including but not limited to weddings, receptions, reunions, or similar occasions.
  3. The holder of a special temporary license may sell, serve, and deliver alcoholic beverages by the drink, for consumption only at the designated premises and the date and times for the qualifying event.
  4. A special temporary license shall not be issued for an event held in dry or moist territory.

HISTORY: 2554b-127: amend. Acts 1990, ch. 54, § 6, effective July 13, 1990; 2017 ch. 62, § 65, effective June 29, 2017; 2022 ch. 39, § 10, effective March 24, 2022.

243.262. Licensed horse race track may be issued temporary alcoholic beverage license.

Any person in wet territory licensed by the Kentucky Racing Commission under KRS 230.300 may be issued a license by the department and may hold a special temporary license as provided in KRS 243.260 . When issued, the license shall be valid and effective only upon premises licensed by the racing commission and upon the dates and hours for which racing or intertrack wagering has been authorized by the racing commission. A temporary license may be issued for the period the racing or intertrack wagering has been authorized, even if the period exceeds thirty (30) days as provided in KRS 243.260 .

History. Repealed and reenact., Acts 2013, ch. 121, § 100, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 230.350 .

243.265. Licensed horse race track may be issued Nonquota type 1 license.

In order to promote economic development and tourism, other provisions of the Kentucky Revised Statutes notwithstanding, the department may issue an NQ1 retail drink license under KRS 243.030 to a horse racetrack that is licensed under KRS 230.300 and is located in a wet or moist city under KRS 242.1238 . The license issued under this section shall be in effect only for horse racetrack premises where live racing meets were held in 2006. Nothing in this section shall be construed as authorizing the issuance of any alcoholic beverage license on any part of the horse race track’s premises that is located outside the city’s limits.

History. Repealed and reenact., Acts 2013, ch. 121, § 101, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 230.352 .

243.270. Business authorized by special private club license. [Repealed.]

Compiler’s Notes.

This section (2554b-127: amend. Acts 1998, ch. 121, § 15, effective July 15, 1998) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.280. Business authorized by nonquota malt beverage package license — Compatible licenses — Certain premises not to be licensed.

  1. A nonquota retail malt beverage package license shall authorize the licensee to:
    1. Sell malt beverages at retail by the package from the licensed premises only for consumption off the licensed premises only; and
    2. Purchase malt beverages only from a distributor.
  2. The holder of a quota retail package license under KRS 243.240 may also obtain a license under this section.
  3. The holder of a nonquota retail malt beverage package license may also hold a NQ4 retail malt beverage drink license.
  4. A nonquota retail malt beverage package license shall not be issued to sell malt beverages at retail for 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.
  5. The term “food and groceries” means:
    1. Any food or food product intended for human consumption except alcoholic beverages, tobacco, hot foods, and hot food products prepared for immediate consumption;
    2. Seeds and plants to grow food for personal consumption.
  6. The provisions of this section shall not apply to any licensed premises which sells no fuel other than marine fuel.

History. 2554b-200: amend. Acts 1978, ch. 194, § 27, effective June 17, 1978; 1984, ch. 313, § 2, effective July 13, 1984; 1996, ch. 72, § 4, effective July 15, 1996; 1998, ch. 121, § 16, effective July 15, 1998; 2013, ch. 121, § 71, effective June 25, 2013.

NOTES TO DECISIONS

1.Regulation.

Legislature by enacting KRS 244.350 preventing package retailer of distilled spirits or wine from accepting orders by telephone or mail and forbidding him to make delivery of distilled spirits or wine and omitting such restrictions on a retailer of malt beverages in this section, plainly showed its intent was not to exercise as close supervision over the sale of malt beverages as over the sale of liquor and wine or else it would have put the same restrictions in both sections and since the legislature did not see fit to extend such restrictions to retailers of malt beverages the alcoholic beverage control board cannot do so by regulation. Roppel v. Shearer, 321 S.W.2d 36, 1959 Ky. LEXIS 254 ( Ky. 1959 ).

2.Enjoining Enforcement.

Action by licensee for declaration of rights, and to enjoin enforcement of this section and a regulation issued under it, could not be maintained where proceedings had theretofore been instituted to revoke applicant’s license for violation of the statute and regulation. Heyser v. Brown, 299 Ky. 82 , 184 S.W.2d 893, 1945 Ky. LEXIS 389 ( Ky. 1945 ).

3.Preemption of City Ordinances.

A city ordinance which prohibited the sale of alcohol from premises which sell groceries and gasoline conflicted with the statute, which expressly permits such establishments to obtain a malt beverage retailer’s license. City of Ashland v. Kentucky Alcoholic Bev. Control Bd., 982 S.W.2d 210, 1998 Ky. App. LEXIS 37 (Ky. Ct. App. 1998).

Opinions of Attorney General.

Subsection (4) of this section, added by the 1984 amendment, should not be interpreted as a grandfather clause which, in effect, exempts from the $5,000 inventory provision those retail malt beverage licensees selling gasoline and lubricating oil, whose licenses are renewed prior to the effective date of the amendment (July 13, 1984). OAG 84-272 .

The phrase “This section,” in subsection (4) of this section, must be interpreted to refer to the 1984 amendment of the statute, which added subsections (3), (4) and (5), and not the entire statute. The legislative intent of this statute is clear from subsection (2); any other construction of the term “section” in subsection (4) would essentially render subsection (2) meaningless. OAG 84-272 .

A retail malt beverage licensee, selling gasoline and lubricating oil, who has an active license on the effective date of the 1984 amendment to this section (July 13, 1984), and fails to maintain the $5,000 inventory during the 1984-1985 license year, is subject to all penalties listed in KRS 243.990(1), in addition to license revocation. OAG 84-272 .

243.290. Business authorized by malt beverage special temporary license. [Repealed.]

Compiler’s Notes.

This section (2554b-203; 2010, ch. 24, § 571, effective July 15, 2010) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.300. Business authorized by dining car and railroad licenses. [Repealed.]

Compiler’s Notes.

This section (2554b-114, 2554b-115, 2554b-125, 2554b-201: amend. Acts 1978, ch. 194, § 17, effective June 17, 1978) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.310. Business authorized by special nonbeverage alcohol vendor’s license. [Repealed.]

Compiler’s Notes.

This section (2554b-127) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.320. Business authorized by special nonbeverage alcohol license — Issuance to certain charitable, public, or private institutions — Federal ethanol permit.

  1. A special nonbeverage alcohol license shall authorize the holder to purchase alcohol for nonbeverage purposes only from the holder of a distiller’s license, wholesaler’s license, or distributor’s license and possess alcohol for use in the manufacture and sale of any of the following products, when they are unfit for beverage purposes:
    1. Denatured alcohol produced, and sold pursuant to Acts of Congress and regulations promulgated thereunder;
    2. Patent, proprietary, medicinal, pharmaceutical, antiseptic, and toilet preparations;
    3. Flavoring extracts, syrups, and food products; and
    4. Scientific, chemical, mechanical, and industrial products.
  2. KRS Chapter 242 shall not prevent the issuance of special nonbeverage alcohol licenses to persons located in dry or moist territory nor prevent licensees from exercising the privileges granted in the license.
  3. A special nonbeverage alcohol license may also be issued to any duly authorized and bona fide hospital, museum, laboratory, charitable, educational, or similar public or private institution, to a drug store employing a licensed pharmacist, or to a licensed physician. The license shall authorize the licensee to purchase or possess alcohol and to use it only for nonbeverage purposes.
  4. The holder of a special nonbeverage alcohol license may produce, possess, and use alcohol in the manufacture of nonbeverage fuel ethanol if the holder also holds a basic permit from the applicable federal agency authorizing ethanol production.

History. 2554b-127: amend. 2013, ch. 121, § 72, effective June 25, 2013; 2014, ch. 22, § 17, effective July 15, 2014.

NOTES TO DECISIONS

Cited:

Richmond v. Collins, 310 Ky. 645 , 221 S.W.2d 625, 1949 Ky. LEXIS 988 ( Ky. 1949 ).

243.330. Business authorized by special nonindustrial alcohol license. [Repealed.]

Compiler’s Notes.

This section (2554b-127) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.340. Business authorized by special agent’s or solicitor’s license — Issuance to nonresident — Form.

  1. A special agent’s or solicitor’s license may be issued to a duly authorized representative, employee, or agent of, or solicitor for a distiller, rectifier, winery, or wholesaler licensed in Kentucky or by the state of his or her residence and by the United States if a resident therein. The license shall authorize the licensee to offer for sale and to solicit orders for the sale of any alcoholic beverage sold by a distiller, rectifier, winery, or wholesaler who is licensed in Kentucky or who is a nonresident. The license shall set forth the name, address, and, unless the vendor is a nonresident, the license numbers of the vendors the agent or solicitor represents, as well as the name, address, and license number of the agent or solicitor. An agent or solicitor shall not represent any vendor or licensee whose name does not appear upon the license or the application for the license.
  2. A special agent’s or solicitor’s license may be issued to a nonresident of this state. The license shall authorize the nonresident to represent a manufacturer, winery, or wholesaler who is licensed by another state and by the federal government, if the nonresident has been issued a license by another state conferring privileges similar to a special agent’s or solicitor’s license authorized by subsection (1) of this section. If the state of residence of the applicant does not issue a similar license, the application filed with the department shall not be accepted without the approval of the alcoholic beverage control agency of the state of the applicant’s residence.

History. 2554b-127: amend. Acts 1984, ch. 164, § 1, effective July 13, 1984; 1998, ch. 121, § 17, effective July 15, 1998; 2013, ch. 121, § 73, effective June 25, 2013.

Opinions of Attorney General.

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 .

The ownership of 2% of the stock of a distillery corporation does not constitute such a “substantial interest” within the meaning of KRS 243.110 . 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 .

243.350. Business authorized by special storage or warehouse license. [Repealed.]

Compiler’s Notes.

This section (2554b-127: amend. Acts 1998, ch. 121, § 18, effective July 15, 1998) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.353. Business authorized by malt beverage storage license — Issuance of temporary storage license in case of emergency.

  1. A malt beverage storage license may be issued as a supplementary license to a distributor’s license, a nonquota retail malt beverage package license, or a Nonquota type 4 retail malt beverage drink license. A malt beverage storage license may also be issued as a primary or supplementary license in conformity with administrative regulations promulgated by the department.
  2. The holder of a malt beverage storage license may:
    1. Store malt beverages at the storage licensed premises convenient to his or her regular retail malt beverage licensed premises;
    2. Transport the malt beverages as belonging to the holder of the license to and from the warehouse by way of the nearest route to his or her regular licensed retail malt beverage premises, if the licensee sells no malt beverages except at his or her regular malt beverage licensed premises;
    3. Transport and store malt beverages belonging to the distributor to, from, and at the storage licensed premises; and
    4. Conduct business as authorized by the department through the promulgation of administrative regulations.
  3. The malt beverage administrator may issue a temporary storage license to a licensed distributor for storage of malt beverages if there is an emergency. The malt beverage administrator shall have sole discretion to determine the existence of any emergency.

History. Enact. Acts 2013, ch. 121, § 32, effective June 25, 2013; 2014, ch. 22, § 18, effective July 15, 2014.

243.355. Business authorized by distilled spirits and wine storage license — Application of federal law.

  1. A distilled spirits and wine storage license may be issued as a primary license or as a supplementary license to the holder of a distiller’s license, rectifier’s license, or quota retail package license.
  2. A distilled spirits and wine storage license may be issued to any person operating a bonded warehouse for distilled spirits, and who does not at the same time, and for the same premises, hold a federal operating permit for distilling purposes, but who possesses only a federal operating permit for a bonded warehouse for distilled spirits as defined by federal law and the Internal Revenue Code.
  3. A licensee under this section may operate a bonded warehouse or warehouses for premises specifically designated, but this license shall become void if a federal operating permit for distilling purposes is issued for the same premises, and shall remain void while the federal permit remains in effect. Upon the granting of a federal operating permit for distilling purposes, the licensee of the premises previously licensed under this section shall obtain a license as set out in KRS 243.030(1).
  4. A distilled spirits and wine storage license may be issued to persons or entities not otherwise entitled under Kentucky law to store or warehouse distilled spirits or wine, but who are so authorized by the federal government. The license shall authorize the licensee to operate a warehouse or place of storage for distilled spirits or wine on the premises specifically designated.
  5. A quota retail package licensee holding a supplemental distilled spirits and wine storage license may store distilled spirits and wine at the storage licensed premises convenient to the licensee’s regular retail package licensed premises.

HISTORY: Enact. Acts 2013, ch. 121, § 33, effective June 25, 2013; 2017 ch. 62, § 66, effective June 29, 2017.

243.360. Notice of intention to apply for license — Protest — Sufficiency of substantial compliance.

  1. All persons shall, before applying for a license, advertise by publication their intention to apply for a license in the newspaper for legal notices under KRS 424.120 for the county or city whose local administrator has local jurisdiction over the proposed premises. This requirement shall not apply to an applicant for the same license for the same premises, or an applicant for any of the following licenses:
    1. Out-of-state malt beverage supplier’s license;
    2. Limited out-of-state malt beverage supplier’s license;
    3. Out-of-state distilled spirits and wine supplier’s license;
    4. Limited out-of-state distilled spirits and wine supplier’s license;
    5. Supplemental bar license;
    6. Extended hours supplemental license;
    7. Special agent or solicitor’s license;
    8. Special nonbeverage alcohol license;
    9. Transporter’s license;
    10. Special Sunday drink license;
    11. Hotel in-room license;
    12. Sampling license;
    13. Direct shipper license; or
    14. Special temporary drink license.
  2. The notice shall contain the following information:
    1. The notice shall state: the name and address of the applicant and the name and address of each principal owner, partner, member, officer, and director if the applicant is a partnership, limited partnership, limited liability company, corporation, governmental agency, or other business entity recognized by law;
    2. The notice shall specifically state the location of the premises for which the license is sought, the type of business, and the type of license being requested; and
    3. The notice shall state the date the application will be filed and shall contain the following statement: “Any person may protest the approval of the license by writing the Department of Alcoholic Beverage Control within thirty (30) days of the date of legal publication.”
  3. Any protest received after the thirty (30) day period has expired shall not be considered a valid legal protest by the board.
  4. Substantial compliance with the information listed in subsection (2) of this section shall be sufficient to comply with this section.

History. 2554b-133: amend. Acts 1966, ch. 239, § 175; 1970, ch. 94, § 3; 1978, ch. 194, § 29, effective June 17, 1978; 1998, ch. 121, § 34, effective July 15, 1998; 1998, ch. 522, § 9, effective July 15, 1998; 2000, ch. 435, § 12, effective July 14, 2000; 2010, ch. 24, § 572, effective July 15, 2010; 2013, ch. 121, § 74, effective June 25, 2013; 2014, ch. 22, § 19, effective July 15, 2014; 2017 ch. 62, § 67, effective June 29, 2017; 2020 ch. 80, § 12, effective July 15, 2020.

NOTES TO DECISIONS

1.Purpose.

The purpose of subsection (1) of this section is to notify the public of the proposed use of specific property so that any member of the public is afforded an opportunity to file a protest against the issuance of a license for that location. Durbin v. Wood, 369 S.W.2d 125, 1963 Ky. LEXIS 67 ( Ky. 1963 ); Bickett v. Palmer-Ball, 470 S.W.2d 341, 1971 Ky. LEXIS 276 ( Ky. 1971 ).

2.Notice.
3.— Sufficiency.

Where notice described location as “12 miles from Lebanon on the north side of Kentucky highway 208 in Marion County, Kentucky” and evidence showed general knowledge in the community that application had been made, notice was sufficient. Angel v. Moberly, 425 S.W.2d 538, 1968 Ky. LEXIS 416 ( Ky. 1968 ).

Where an applicant for a malt beverage distributor’s license describes his premises in his notice of application by referring to the number of miles from a named city on the south side of a named highway, the applicant has fulfilled the requirement of subsection (1) of this section. Bickett v. Palmer-Ball, 470 S.W.2d 341, 1971 Ky. LEXIS 276 ( Ky. 1971 ).

Since this section does not require that the date of the filing of the application be made a part of the advertisement and such date was not included, the provision of subsection (1)(b) of KRS 424.130 , fixing the time within which publication is required, did not apply to the publication of a notice of intention to apply for a license, but the notice had to afford interested parties an opportunity to protest. S. W. Palmer-Ball v. Esquire Liquors, Inc., 490 S.W.2d 472, 1973 Ky. LEXIS 626 ( Ky. 1973 ).

4.— Mandatory.

Fulfillment of the notice requirement of this section cannot be waived since it is a condition of eligibility which is made mandatory by the provisions of KRS 243.450 . Durbin v. Wood, 369 S.W.2d 125, 1963 Ky. LEXIS 67 ( Ky. 1963 ).

Cited:

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 ); Barnett v. Portwood, 328 S.W.2d 164, 1959 Ky. LEXIS 102 ( Ky. 1959 ).

Opinions of Attorney General.

Where public disclosure through the Open Records Act is sought for the names of applicants for beer distributorship licenses, there is no exemption for such names under former subsection (1)(b) KRS 61.878 , since the state ABC board is not authorized to have a policy which does not allow the inspection of applications prior to their approval or denial in light of the statutory requirement of this section that every applicant publish notice of his intention, including the name of the corporation and the location of the proposed licensed premises. OAG 81-51 .

243.370. Local administrator to approve application first. [Repealed]

History. 2554b-110, 2554b-111, 2554b-139; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, § 1, effective October 1, 1942, from Ky. Stat. §§ 2554b-110, 2554b-111, 2554b-139) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

243.380. Applications for state licenses — Requirements for entity owning more than two licensed premises.

  1. Applications for distilled spirit and wine licenses shall be made to the distilled spirits administrator. Applications for malt beverage licenses shall be made to the malt beverages administrator. Applications for distilled spirits, wine, and malt beverage licenses shall be made to the distilled spirits administrator and to the malt beverages administrator.
  2. All applications shall be on forms furnished by the department. They shall be verified and shall set forth in detail all information concerning the applicant and the premises submitted for licensing as the board requires through the promulgation of an administrative regulation. Each application shall be accompanied by payment. Payment of the license fee may be by certified check, a postal or express money order, or any other method of payment approved in writing by both the Finance and Administration Cabinet and the Office of the State Treasurer. Promptly upon receipt of the payment the board shall pay it into the State Treasury, giving the Department of Revenue copies of the pay-in vouchers and any other supporting data as the Department of Revenue requires for revenue control purposes.
    1. A business entity that owns more than two (2) licensed premises may initially submit common information about ownership, officers, directors, managerial employees, and shall provide current criminal background checks once for all separately licensed premises in one (1) master file. (3) (a) A business entity that owns more than two (2) licensed premises may initially submit common information about ownership, officers, directors, managerial employees, and shall provide current criminal background checks once for all separately licensed premises in one (1) master file.
    2. Any business qualifying under this subsection shall only be required to amend its master file information for material changes under KRS 243.390(2) or ownership transfers under KRS 243.630 .
    3. A direct shipper license applicant shall be exempt from the requirements of this subsection and shall instead meet the requirements for its license type as set forth in KRS 243.027 .

History. 2554b-131, 2554b-204: amend. Acts 1944, ch. 154, § 14; 2003, ch. 33, § 1, effective June 24, 2003; 2005, ch. 85, § 649, effective June 20, 2005; 2010, ch. 24, § 573, effective July 15, 2010; 2013, ch. 121, § 75, effective June 25, 2013; 2014, ch. 22, § 20, effective July 15, 2014; 2017 ch. 62, § 68, effective June 29, 2017; 2021 ch. 13, § 8, effective March 12, 2021.

NOTES TO DECISIONS

Cited:

Dunn v. Central City, 285 Ky. 482 , 148 S.W.2d 347, 1941 Ky. LEXIS 415 ( Ky. 1941 ); 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 ); O’Sullivan v. Portwood, 309 S.W.2d 773, 1958 Ky. LEXIS 365 ( Ky. 1958 ).

243.390. Sworn information to be contained in applications — Verified supplemental statement — Presumption of reliability of supplied information — Exemption.

  1. The board may require through the promulgation of an administrative regulation that license applications contain the following information, given under oath:
    1. The name, age, Social Security number, address, residence, and citizenship of each applicant;
    2. If the applicant is a partner, the name, age, Social Security number, address, residence, and citizenship of each partner and the name and address of the partnership;
    3. The name, age, Social Security number, address, residence, and citizenship of each individual or partner interested in the business for which the license is sought, together with the nature of that interest, and, if the applicant is a corporation, limited partnership company, limited liability company, or other business entity recognized by law, the name, age, Social Security number, and address of each principal owner, member, officer, and director of the applicant. The department may require the names of all owners and the ownership percentage held by each;
    4. The premises to be licensed, stating the street and number, if the premises has a street number, and a description that will reasonably indicate the location of the premises;
      1. A statement that neither the applicant nor any other person referred to in this section has been convicted of: (e) 1. A statement that neither the applicant nor any other person referred to in this section has been convicted of:
        1. Any misdemeanor directly or indirectly attributable to alcoholic beverages;
        2. Any violation involving a controlled substance that is described in or classified pursuant to KRS Chapter 218A within the two (2) years immediately preceding the application;
        3. Any felony, within five (5) years from the later of the date of parole or the date of conviction; or
        4. Providing false information to the department preceding the application; and
      2. A statement that the applicant or any other person referred to in this section has not had any license that has been issued under any alcoholic beverage statute revoked for cause within two (2) years prior to the date of the application;
    5. A statement that the applicant will in good faith abide by every state and local statute, regulation, and ordinance relating to the manufacture, sale, use of, and trafficking in alcoholic beverages; and
    6. Any other information necessary for the department to administer KRS Chapters 241 to 244.
  2. If, after a license has been issued, there is a change in any of the facts required to be set forth in the application, a verified supplemental statement in writing giving notice of the change shall be filed with the department within ten (10) days after the change.
  3. In giving any notice or taking any action in reference to a license, the department may rely upon the information furnished in the application or in the supplemental statement connected with the application. This information, as against the licensee or applicant, shall be conclusively presumed to be correct. The information required to be furnished in the application or supplemental statement shall be deemed material in any prosecution for perjury.
  4. A direct shipper license applicant shall be exempt from the requirements of this section and shall instead meet the requirements for its license type as set forth in KRS 243.027 .

History. 2554b-134: amend. Acts 1998, ch. 522, § 10, effective July 15, 1998; 2010, ch. 24, § 574, effective July 15, 2010; 2017 ch. 61, § 4, effective June 29, 2017; 2017 ch. 62, § 69, effective June 29, 2017; 2021 ch. 13, § 9, effective March 12, 2021.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 61 and 62, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Material Statements.

Where a statement on the application pertaining to prior liquor violations was a basis upon which the license could be denied, it became a material part of the application. Brown v. Carey, 442 S.W.2d 566, 1969 Ky. LEXIS 270 ( Ky. 1969 ).

Cited:

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

Opinions of Attorney General.

Regulation 804 KAR 4:010, defining “change” within subsection (2) of this section as a change of directors, officers or a change in stock ownership whereby one person acquires 10% of the stock, is a reasonable regulation. 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 .

The Legislature intended that the information required by this section be the minimum information that an applicant should furnish, and the board may require other information upon which to base its decision, such as the names and citizenship of a business’ stockholders. OAG 79-197 .

243.400. Bond with application for brewer’s, distiller’s, rectifier’s, bottling house, vintner’s, or wholesaler’s license. [Repealed.]

Compiler’s Notes.

This section (2554b-135: amend. Acts 1944, ch. 154, § 15; 1970, ch. 94, § 4; 2005, ch. 85, § 650, effective June 20, 2005; 2010, ch. 24, § 575, effective July 15, 2010) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.410. Board may require satisfactory surety and bond — Discharge of surety. [Repealed.]

Compiler’s Notes.

This section (2554b-135: amend. Acts 1944, ch. 154, § 16; 1970, ch. 94, § 5; 1996, ch. 318, § 160, effective July 15, 1996) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.420. Recovery on bond. [Repealed.]

Compiler’s Notes.

This section (2554b-135: amend. Acts 1944, ch. 154, § 17; 2005, ch. 85, § 651, effective June 20, 2005) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

243.430. Denial of application for license — Time frame for denial, approval, or issuance of license.

  1. The state administrator may deny any application for a license if the application is incomplete or the correct fee has not been remitted with the application.
  2. A license shall not be approved or issued until the thirty (30) day period in which a protest is permissible has expired. Any license for which public notice under KRS 243.360 is required may conditionally be issued in less than thirty (30) days from the date the application is received if the premises has previously operated under the same type of license within the last twelve (12) months.
  3. The state administrator shall deny, approve, or issue licenses when, in the sound discretion of the administrator, all of the information necessary has been obtained or the applicant has refused to provide requested information.

HISTORY: 2554b-131, 2554b-204: amend. Acts 1942, ch. 168, §§ 3, 12; 1944, ch. 154, § 18; 1998, ch. 522, § 11, effective July 15, 1998; 2000, ch. 435, § 13, effective July 14, 2000; 2017 ch. 62, § 70, effective June 29, 2017.

NOTES TO DECISIONS

1.Liquor Permit.

A liquor license is only a temporary permit not involving contract or property rights, and its continuance is conditioned upon all the terms of the statute under which issued. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

2.Appeal of Denial.

Where voters in county local option election voted to legalize sale of alcoholic beverages and the county was allotted quota of retail package liquor licenses which quota was filled, nonsuccessful applicants who were admittedly qualified and to whose application no protest was made had standing to appeal administrator’s refusal to grant them licenses; however, trial court’s error in finding that there was no appeal from such refusal was harmless since the quota of licenses had been filled and the appeal would thus be an exercise in futility. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

243.440. Form of licenses.

All licenses shall contain:

  1. The name and address of the licensee;
  2. The number of the license;
  3. The type of the license;
  4. A description by street and number, or otherwise, of the licensed premises;
  5. The expiration date of the license; and

  6. A statement in substance that the license shall not be a property or vested right and that it may be revoked at any time pursuant to law.

HISTORY: 2554b-114, 2554b-136; 2017 ch. 62, § 71, effective June 29, 2017.

243.450. Causes for denial of license.

  1. A license shall be denied:
    1. If the applicant or the premises for which the license is sought does not comply fully with all alcoholic beverage control statutes and the administrative regulations of the board;
    2. If the applicant has not obtained approval from the local ABC administrator for a county or city license required at the proposed premises;
    3. If the applicant has done any act for which a revocation of license would be authorized; or
    4. If the applicant has made any false material statement in its application.
  2. A license may be denied by a state administrator for any reason that the administrator, in the exercise of the administrator’s sound discretion, deems sufficient. Among those factors that the administrator shall consider in the exercise of this discretion are:
    1. Public sentiment in the area;
    2. Number of licensed outlets in the area;
    3. Potential for future growth;
    4. Type of area involved;
    5. Type of transportation available;
    6. Financial potential of the area; and
    7. Applicant’s status as a delinquent taxpayer as defined in KRS 131.1815 .
  3. A direct shipper license applicant shall be exempt from the requirements of this section and shall instead meet the requirements for its license type as set forth in KRS 243.027 .

History. 2554b-134, 2554b-139: amend. Acts 1982, ch. 411, § 1, effective July 15, 1982; 1998, ch. 121, § 19, effective July 15, 1998; 2017 ch. 62, § 72, effective June 29, 2017; 2021 ch. 13, § 10, effective March 12, 2021.

NOTES TO DECISIONS

1.License.

Under this section an applicant is entitled to a license if he has made proper application, has not violated any of the three conditions prescribed in the statute, and the state administrator does not find a sufficient reason for denying the application. Moberly v. King, 355 S.W.2d 309, 1962 Ky. LEXIS 68 ( Ky. 1962 ).

2.— Public Interest.

This section contains no requirement that the issuance of the license be in the public interest, or that the board shall consider such question, or make a finding with respect thereto. Moberly v. King, 355 S.W.2d 309, 1962 Ky. LEXIS 68 ( Ky. 1962 ).

The board, within the purview of this section, can refuse to grant a license if it finds that the allowance of intoxicants to be sold at a particular place would adversely affect the public interest. Moberly v. Bruner, 382 S.W.2d 406, 1964 Ky. LEXIS 350 ( Ky. 1964 ).

3.— Notice Requirement.

The fulfillment of the notice requirement of KRS 243.360 cannot be waived since it is a condition of eligibility which is made mandatory by this section. Durbin v. Wood, 369 S.W.2d 125, 1963 Ky. LEXIS 67 ( Ky. 1963 ).

4.— False Material Statement.

Although the applicant’s license fee came from a husband-wife partnership fund, where he testified before the board that “we work the money situation between us” board was justified in finding that statement on his application, that the entire license fee was paid by him, was not a “false material statement” under this section. Angel v. Moberly, 425 S.W.2d 538, 1968 Ky. LEXIS 416 ( Ky. 1968 ).

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 ).

5.— Discretion to Grant or Deny.

Authority of the alcoholic beverage control board to refuse to renew a distiller’s license must be based upon sound discretion rather than upon some arbitrary whim. Alcoholic Beverage Control Board v. Pebbleford Distillers, Inc., 302 Ky. 96 , 193 S.W.2d 1019, 1946 Ky. LEXIS 602 ( Ky. 1946 ).

Neither the administrator nor the board may arbitrarily reject an application. Alcoholic Beverage Control Board v. Woosley, 367 S.W.2d 127, 1963 Ky. LEXIS 12 ( Ky. 1963 ).

The legislature has, under this section, expressed a clear intent to leave to the reasonable judgment of the state administrator not only the determination of the propriety of granting a particular license but the determination of what material facts are important in reaching this decision. Alcoholic Beverage Control Board v. Woosley, 367 S.W.2d 127, 1963 Ky. LEXIS 12 ( Ky. 1963 ).

Under this section, the board has discretion on whether to grant or refuse a license, and only for abuse of that discretion will the board’s decision be reversed. Angel v. Moberly, 425 S.W.2d 538, 1968 Ky. LEXIS 416 ( Ky. 1968 ).

Although subsection (2) of this section grants a state administrator the right to refuse a license for any reason which he, in the exercise of his sound discretion, may deem sufficient, his denial must be based upon the exercise of a sound discretion and it must be for a cause reasonably related to the propriety of granting the license. Bickett v. Palmer-Ball, 470 S.W.2d 341, 1971 Ky. LEXIS 276 ( Ky. 1971 ).

Where the evidence before the board was primarily speculation and hearsay and where there was no evidence before the board affording any reasonable ground upon which the board might have refused to grant the license, the board’s refusal was an abuse of discretion. S. W. Palmer-Ball v. Esquire Liquors, Inc., 490 S.W.2d 472, 1973 Ky. LEXIS 626 ( Ky. 1973 ).

Where the evidence did nothing but state an ultimate conclusion that the area was being adequately served by the present retail outlets and no reasons were given other than the familiarity of the witnesses with the location of other liquor outlets in the area, such evidence did not show any reasonable grounds upon which the board might have refused to issue the licenses and such refusal was an abuse of discretion. Dolan v. Shoppers Village Liquors, Inc., 492 S.W.2d 201, 1973 Ky. LEXIS 510 ( Ky. 1973 ).

6.— Violations of Regulations.

The alcoholic control board was acting within its sound discretion in refusing to renew a distiller’s license because a 50% stockholder therein was convicted in federal court for violating O.P.A. regulations respecting whiskey sales in his own brokerage business, even though such conviction was not final. Alcoholic Beverage Control Board v. Pebbleford Distillers, Inc., 302 Ky. 96 , 193 S.W.2d 1019, 1946 Ky. LEXIS 602 ( Ky. 1946 ).

An applicant for a malt beverage distributor’s license cannot be refused a license under subdivision (1)(b) of this section for having violated rules and regulations of the alcoholic beverage control board where the evidence during the board hearing was far from convincing and no finding was made that the applicant had violated any of the rules and regulations of the board. Bickett v. Palmer-Ball, 470 S.W.2d 341, 1971 Ky. LEXIS 276 ( Ky. 1971 ).

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).

7.— Area Adequately Served.

Denial of a license for whiskey retail outlet in sparsely settled community which was adequately served by other beer and whiskey retail outlets held within discretion of board notwithstanding the quota for the county had not been filled. Moberly v. Berry, 405 S.W.2d 198, 1966 Ky. LEXIS 246 ( Ky. 1966 ).

8.— Zoning of Premises.

Where the premises on which the applicant for a liquor license intended to locate his business was in an area zoned residential but there was testimony that the premises had been utilized for commercial purposes before the date of the zoning regulation, there was no error in a finding that the premises were commercial. Brown v. Carey, 442 S.W.2d 566, 1969 Ky. LEXIS 270 ( Ky. 1969 ).

An alleged violation of the zoning laws was not a ground for compulsory revocation or denial of a retail beer license. Fisher v. Kentucky Alcoholic Beverage Control Board, 459 S.W.2d 80, 1970 Ky. LEXIS 108 ( Ky. 1970 ).

An issue of fact as to whether a violation of zoning laws was taking place would not be appropriate for decision in an alcoholic beverage license proceeding. Fisher v. Kentucky Alcoholic Beverage Control Board, 459 S.W.2d 80, 1970 Ky. LEXIS 108 ( Ky. 1970 ).

9.— Power of Federal Court.

In an action under the civil rights act, 42 USCS § 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 ).

10.— Federal Proceedings.

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 his 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 licensee’s violations. Brown v. Baumer, 301 Ky. 315 , 191 S.W.2d 235, 1945 Ky. LEXIS 719 ( Ky. 1945 ).

11.Appeal of Denial.

Where voters in county local option election voted to legalize sale of alcoholic beverages and the county was allotted quota of retail package liquor licenses which quota was filled, nonsuccessful applicants who were admittedly qualified and to whose application no protest was made had standing to appeal administrator’s refusal to grant them licenses; however, trial court’s error in finding that there was no appeal from such refusal was harmless since the quota of licenses had been filled and the appeal would thus be an exercise in futility. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

Cited:

Kenton Distributing Co. v. Alcoholic Beverage Control Board, 297 Ky. 666 , 181 S.W.2d 64, 1944 Ky. LEXIS 797 ( Ky. 1944 ); Dunbar v. Alcoholic Beverage Control Board, 309 Ky. 70 , 216 S.W.2d 42, 1948 Ky. LEXIS 1071 ( Ky. 1948 ); Jacobs v. Alcoholic Beverage Control Board, 299 S.W.2d 613, 1957 Ky. LEXIS 410 ( Ky. 1957 ); Moberly v. Johnson, 376 S.W.2d 529, 1964 Ky. LEXIS 453 ( Ky. 1964 ).

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 .

This section allows the refusal of a license only after the administrator has exercised his or her discretion by considering certain substantive factors, several of which are listed and the section does not provide the administrator with the authority to reject applicants for licenses by any other means; therefore, the administrator does not possess the statutory authority to accept or reject certain applicants by use of a lottery system. OAG 83-306 .

243.460. Refund of license fee. [Repealed]

History. 2554b-132: amend. Acts 1998, ch. 121, § 20, effective July 15, 1998; 2010, ch. 24, § 576, effective July 15, 2010; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, § 1, effective October 1, 1942, from Ky. Stat. § 2554b-132; 1998, ch. 121, § 20, effective July 15, 1998; 2010, ch. 24, § 576, effective July 15, 2010) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

243.470. Applicant may have hearing before license is denied — Refund of payments made.

  1. If a state administrator denies a license application, the administrator shall notify the applicant in writing of the denial and reasons by registered or certified mail at the address given in the application or supplement.
  2. The applicant may, within thirty (30) days after the date of the mailing of the notice from the state administrator, file a request with the board for an administrative hearing on the application. The hearing shall be conducted by the board as a de novo review of the application in compliance with the requirements of KRS Chapter 13B.
  3. If the state administrator denies an application and the applicant does not timely request a board hearing on its application under subsection (2) of this section, the department shall refund payment of the license fee to the applicant if requested. The department shall also refund payment of any license fee erroneously paid by an applicant.

HISTORY: 2554b-140: amend. Acts 1998, ch. 121, § 21, effective July 15, 1998; 2017 ch. 62, § 73, effective June 29, 2017.

NOTES TO DECISIONS

1.Appeal of Denial.

Where voters in county local option election voted to legalize sale of alcoholic beverages and the county was allotted quota of retail package liquor licenses which quota was filled, nonsuccessful applicants who were admittedly qualified and to whose application no protest was made had standing to appeal administrator’s refusal to grant them licenses; however, trial court’s error in finding that there was no appeal from such refusal was harmless since the quota of licenses had been filled and the appeal would thus be an exercise in futility. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

Cited:

K. Whiskey Store, Inc. v. Shearer, 276 S.W.2d 457, 1955 Ky. LEXIS 424 ( Ky. 1955 ); Alcoholic Beverage Control Board v. Woosley, 367 S.W.2d 127, 1963 Ky. LEXIS 12 ( Ky. 1963 ); Carter v. Moberly, 376 S.W.2d 518, 1964 Ky. LEXIS 449 ( Ky. 1964 ).

243.480. Suspension of licenses — Payments in lieu of suspension — Appeal.

  1. Upon proceedings for the revocation of any license under KRS 243.520 , the Alcoholic Beverage Control Board, or the local alcoholic beverage administrator, may in its or his or her discretion order a suspension of the license for any cause for which it may, but is not required to, revoke the license under the provisions of KRS 243.490 and 243.500 . However, the licensee may have the alternative, subject to the approval of the Alcoholic Beverage Control Board or the local alcoholic beverage administrator, to pay in lieu of part or all of the days of any suspension period, a sum as follows:
    1. Except for violations arising from retail sales activities, including sales under licenses issued pursuant to KRS 243.086 and sales at retail under KRS 243.0305 :
      1. Distillers, rectifiers, wineries, and brewers, one thousand dollars ($1,000) per day;
      2. Wholesale liquor licensees, four hundred dollars ($400) per day; and
      3. Wholesale beer licensees, four hundred dollars ($400) per day;
    2. 1. Retail licensees authorized to sell distilled spirits, wine, or beer by the package or drink, fifty dollars ($50) per day; and 2. Distillers, wineries, and brewers for violations arising from their retail sales activities, including sales by distillers under licenses issued pursuant to KRS 243.086 and sales at retail under KRS 243.0305 , fifty dollars ($50) per day; and
    3. All remaining licensees, fifty dollars ($50) per day.
  2. Payments in lieu of suspension or for board-ordered agency server training, collected on a cost recovery basis, collected by the Alcoholic Beverage Control Board shall be deposited in the State Treasury and credited to the general expenditure fund. Payments in lieu of suspension collected by local alcoholic beverage administrators shall be deposited and used as local alcoholic beverage license tax receipts are deposited and used.
  3. In addition to or in lieu of a suspension of a license, the board may order a licensee to pay for and require attendance and completion by some or all of the licensee’s alcoholic beverage servers in the department’s server training program.
  4. Appeals from orders of suspension and the procedure thereon shall be the same as are provided for orders of revocation in KRS Chapter 13B.

HISTORY: 2554b-145: amend. Acts 1942, ch. 168, §§ 5, 14; 1958, ch. 66; 1990, ch. 252, § 1, effective July 13, 1990; 1998, ch. 522, § 12, effective July 15, 1998; 2004, ch. 20, § 9, effective July 13, 2004; 2010, ch. 24, § 577, effective July 15, 2010; 2013, ch. 121, § 76, effective June 25, 2013; 2017 ch. 59, § 4, effective June 29, 2017.

NOTES TO DECISIONS

1.Declaration of Rights.

Licensee may seek a declaration of his rights previous to conducting his business in a manner prohibited by a regulation of the department, however, after the board has acquired jurisdiction of the question by citing licensee for a violation, he may obtain relief only in the manner prescribed by KRS 243.560 to 243.590 . Heyser v. Brown, 299 Ky. 82 , 184 S.W.2d 893, 1945 Ky. LEXIS 389 ( Ky. 1945 ).

2.Discretion of Board.

The alcohol control laws give wide discretion to the alcoholic beverage control board in regulating the liquor business. Brey v. Alcoholic Beverage Control Board, 451 S.W.2d 647, 1970 Ky. LEXIS 411 ( Ky. 1970 ).

243.490. Causes for which licenses may be revoked or suspended.

A license may be revoked or suspended by the board for a violation of any of the following:

  1. Any of the provisions of KRS Chapters 241 to 244;
  2. Any administrative regulation of the board relating to the regulation of the manufacture, sale, and transportation of alcoholic beverages;
  3. Any rule or administrative regulation of the Department of Revenue relating to the taxation of alcoholic beverages;
  4. Any Act of Congress or any rule or regulation of any federal board, agency, or commission;
  5. Any local ordinance relating to the regulation of the manufacture, sale, and transportation or taxation of alcoholic beverages;
  6. Any of the laws, regulations, or ordinances referred to in this section when an agent, servant, or employee of the licensee committed the violation, irrespective of whether the licensee knew of or permitted the violation or whether the violation was committed in disobedience of the licensee’s instructions;
  7. Any cause which the Alcoholic Beverage Control Board in the exercise of its sound discretion deems sufficient; or
  8. Any of the reasons for which the state administrator would have been required to deny a license if existing material facts had been known.

HISTORY: 2554b-141, 2554e-10: amend. Acts 1942, ch. 168, §§ 4, 13; 1996, ch. 329, § 2, effective July 15, 1996; 1998, ch. 121, § 22, effective July 15, 1998; 2005, ch. 85, §§ 652, 653, effective June 20, 2005; 2010, ch. 24, § 578, effective July 15, 2010; repealed and reenacted Acts 2017, ch. 62, § 74, effective June 29, 2017.

Legislative Research Commission Note.

(6/20/2005). This section was amended by 2005 Ky. Acts ch. 85, secs. 652 and 653, which are identical and have been codified together.

NOTES TO DECISIONS

1.Discretion of Board.

Authority of the alcoholic beverage control board to refuse to renew a distiller’s license must be based upon sound discretion rather than upon some arbitrary whim. Alcoholic Beverage Control Board v. Pebbleford Distillers, Inc., 302 Ky. 96 , 193 S.W.2d 1019, 1946 Ky. LEXIS 602 ( Ky. 1946 ).

The board clearly has discretion under the statute and is not mandatorily required to suspend or revoke a license for the violation of its terms. Brown v. Carey, 442 S.W.2d 566, 1969 Ky. LEXIS 270 ( Ky. 1969 ).

The alcohol control laws give wide discretion to the alcoholic beverage control board in regulating the liquor business. Brey v. Alcoholic Beverage Control Board, 451 S.W.2d 647, 1970 Ky. LEXIS 411 ( Ky. 1970 ).

2.Nonoperation.

Where nonoperation existed for a reasonable time, the board could have revoked the former license. Kenton Distributing Co. v. Alcoholic Beverage Control Board, 297 Ky. 666 , 181 S.W.2d 64, 1944 Ky. LEXIS 797 ( Ky. 1944 ).

3.Acquittal of Violations.

Acquittal by a court of a charge of selling liquor without a license is not a bar to a proceeding for the revocation of a license. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

4.Action Against Licensee.

Since the statutory scheme to effect proper inspection of licensed premises where alcoholic beverages were sold did not contemplate the granting or refusal of permission for such inspection by licensee, the action against licensee was not limited to this section where licensee refused officers permission to inspect a part of his licensed premises. Duke v. Commonwealth, 474 S.W.2d 885, 1971 Ky. LEXIS 128 ( Ky. 1971 ).

Cited:

Brown v. Baumer, 301 Ky. 315 , 191 S.W.2d 235, 1945 Ky. LEXIS 719 ( Ky. 1945 ); Collins v. Bowles, 152 F.2d 760, 1946 U.S. App. LEXIS 1862 (6th Cir. 1946); Dunbar v. Alcoholic Beverage Control Board, 309 Ky. 70 , 216 S.W.2d 42, 1948 Ky. LEXIS 1071 ( Ky. 1948 ); Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ); Alcoholic Beverage Control Bd. v. Taylor Drug Stores, Inc., 635 S.W.2d 319, 1982 Ky. LEXIS 269 ( Ky. 1982 ).

Opinions of Attorney General.

The holding of the county office of magistrate of the fiscal court would be grounds for revocation of a liquor license held by the same person. OAG 65-80 .

Any licensee selling malt beverages to customers at a price which does not match, if not exceed, his “cost,” as defined in KRS 365.030(3), is in violation of KRS 365.030(1), assuming sales below cost are for the purpose of injuring competitors or destroying competition. Assuming the retail price does not reflect the cost factors specified by statute, two remedies are available: first, the violator will be subject to a fine and/or imprisonment pursuant to KRS 365.990(2); second, the violator’s license may be revoked pursuant to this section. OAG 82-479 .

Where a malt beverage distributor licensee sells a quantity of a brand of malt beverages to retail licensee “A” at $25.00 per half barrel and the same product and quantity to retail licensee “B” at $29.00 per half barrel, if the rebate or discount is secretly made “to the injury of a competitor and tends to destroy competition” the distributor licensee is in violation of KRS 365.050 . If the board deems a violation of KRS 365.050 to be a sufficient cause for revocation of a license, a show cause hearing may be held to determine if such violation has in fact occurred. OAG 82-479 .

243.500. Causes for which licenses may be revoked or suspended.

Any license may be revoked or suspended for the following causes:

  1. Conviction of the licensee or the licensee’s agent, servant, or employee for selling any illegal alcoholic beverages on the licensed premises.
  2. Making any false, material statements in an application or renewal application for a license or supplemental license.
  3. Conviction of the licensee or any of the licensee’s agents, servants, or employees of:

    1. Two (2) violations of the terms and provisions of KRS Chapters 241 to 244, or any act regulating the manufacture, sale, and transportation of alcoholic beverages within two (2) consecutive years;
    2. Two (2) misdemeanors directly or indirectly attributable to the use of alcoholic beverages within two (2) consecutive years; or
    3. Any felony.
  4. Failure or default of a licensee to pay an excise tax or any part of the tax or any penalties imposed by or under the provisions of any statutes, ordinances, or Acts of Congress relative to taxation, or for a violation of any related administrative regulations promulgated by the Department of Revenue.
  5. Revocation of any license or permit provided in KRS 243.060 , 243.070 , 243.600 , and 243.610 , or granted under any Act of Congress relative to the regulation of the manufacture, sale, and transportation of alcoholic beverages.
  6. Setting up, conducting, operating, or keeping, on the licensed premises, any gambling game, device, machine, contrivance, lottery, gift enterprise, handbook, or facility for betting or transmitting bets on horse races; or permitting to be set up, conducted, operated, kept, or engaged in, on the licensed premises, any gambling game, device, machine, contrivance, lottery, gift enterprise, handbook, or facility. This subsection shall not apply to:
    1. The sale of lottery tickets sold under the provisions of KRS Chapter 154A;
    2. The operation of a pari-mutuel system for betting, where authorized by law;
    3. The conduct of charitable gaming by a charitable organization licensed or permitted under KRS Chapter 238; or
    4. Special temporary raffles of alcoholic beverages under KRS 243.036 .
  7. Conviction of the licensee, the licensee’s agents, servants, or employees for:
    1. The trafficking or possession upon the licensed premises of controlled or illegal substances described in KRS Chapter 218A, including synthetic drugs;
    2. Knowingly permitting the trafficking or possession by patrons upon the licensed premises of controlled or illegal substances described in KRS Chapter 218A, including synthetic drugs; or
    3. Knowingly receiving stolen property upon the licensed premises.
  8. Failure to comply with the terms of a final order of the board.

HISTORY: 2554b-134, 2554b-141: amend. Acts 1942, ch. 168, §§ 4, 13; 1944, ch. 154, § 19; 1952, ch. 111, § 1; 1974, ch. 11, § 1; 1978, ch. 194, § 18, effective June 17, 1978; 1988 (Ex. Sess.), ch. 1, § 26, effective December 15, 1988; 1992, ch. 254, § 2, effective July 14, 1992; 1998, ch. 522, § 13, effective July 15, 1998; 2005, ch. 85, § 654, effective June 20, 2005; 2012, ch. 108, § 15, effective April 11, 2012; 2017 ch. 61, § 5, effective June 29, 2017; 2017 ch. 62, § 75, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 61 and 62. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 62, which was last enacted by the General Assembly, prevails under KRS 446.250 .

Although references to the sale of “shares” were deleted in the Senate committee substitute, due to a clerical error, such reference was not deleted in subsection (7) of this section. The Reviser of Statutes, pursuant to KRS 7.136 , has removed the words “or shares” to conform.

NOTES TO DECISIONS

1.Suspension or Revocation.

Suspension or revocation of a license is in no sense in the nature of punishment. Brown v. Baumer, 301 Ky. 315 , 191 S.W.2d 235, 1945 Ky. LEXIS 719 ( Ky. 1945 ).

2.— Gambling.

Where a handbook was found in a garage, and the garage and the tavern were but 15 feet apart but there was no entrance connecting them, nor was it shown that the person operating the handbook had any interest in the operation of the tavern nor the person operating the tavern had any interest in the handbook, there was no substantial evidence to establish gambling on premises licensed for the retail sale of beer and liquor which would justify the revocation of tavern operator’s license. Alcoholic Beverage Control Board v. Coghill, 273 S.W.2d 570, 1954 Ky. LEXIS 1183 ( Ky. 1954 ).

3.— Conviction of Misdemeanor.

Conviction of a misdemeanor involving traffic in alcoholic beverages, if more than two 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 ).

4.— Trafficking in Whiskey.

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 ).

5.— Nature of Proceedings.

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 ).

6.— Evidence.

Where a minor who had brought alcoholic drinks on occasion at the licensee’s place of business testified to that fact, the evidence was sufficient to warrant the finding of a violation. Brey v. Alcoholic Beverage Control Board, 451 S.W.2d 647, 1970 Ky. LEXIS 411 ( Ky. 1970 ).

7.— Employment of Felon.

The operator of an establishment licensed to sell alcoholic beverages may not employ a person who has been convicted of any felony within two years prior to the date of employment or of any misdemeanor directly or indirectly attributable to the use of intoxicating liquors. Commonwealth, Alcoholic Beverage Control Board v. Lexington Johnnie's, Inc., 553 S.W.2d 694, 1977 Ky. LEXIS 478 ( Ky. 1977 ).

8.— Federal Violations.

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 ).

9.Liquor Permit.

A liquor license is only a temporary permit not involving contract or property rights, and its continuance is conditioned upon all the terms of the statute under which issued. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

Cited:

Collins v. Bowles, 152 F.2d 760, 1946 U.S. App. LEXIS 1862 (6th Cir. 1946), rev’d, Collins v. Porter, 328 U.S. 46, 66 S. Ct. 893, 90 L. Ed. 1075, 1946 U.S. LEXIS 2497 (1946); Alcoholic Beverage Control Board v. Eversole, 275 S.W.2d 55, 1955 Ky. LEXIS 343 ( Ky. 1955 ); Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

Opinions of Attorney General.

A crap table and a blackjack table set up by a local merchant who has an A.B.C. license in his place of business with customers buying chips for one cent each would be illegal and in violation of KRS 436.230 (repealed), 436.240 (repealed) and possibly 436.250 (repealed) which constitute grounds for revocation of his A.B.C. license pursuant to this section. OAG 74-692 .

It is illegal for either the patrons to play poker or for a proprietor of a bar to allow poker playing on the premises even if the participants receive only their personal winnings and the proprietor receives no remuneration or fee from the gambling. OAG 75-127 .

Although the conducting of gambling activity on licensed premises, if not found to be advancing or profiting from such activity, would not subject a licensee to criminal liability under the penal code, the ABC Board has authority to revoke or suspend an individual’s license for permitting such activity on licensed premises. OAG 77-301 .

The penalties provided for in KRS 243.990 (1) may only be additionally imposed on an offender whose license has been actually revoked, for if the offender’s license is only temporarily suspended the sanctions are not applicable. OAG 77-301 .

A licensee of the Department of Alcoholic Beverage Control, may offer at its licensed premises, (for a set fee paid to a tour operator), an activity in which games of chance are played with paper money, resulting in prizes being auctioned off for paper money, on the condition that the paper money is provided to the participants at no expense, since this would not constitute gambling as defined by subsection (3) of KRS 528.010 ; however, if the cost of the activities is passed on to the participants in the form of a hidden increase in the initial overall tour cost, then the participant will have risked something of value by purchasing the paper, so that they are “gambling” under subsection (3) of KRS 528.010 and the licensees’ license would have to be revoked pursuant to this section. OAG 81-139 .

Where an automobile company conducts an automobile giveaway on the premises of a supermarket which possesses wine and beer licenses, and the contest involves the contestant entering the supermarket premises to register for the contest, but requires no minimum purchase to enter, the contest would not be a gambling scheme under KRS 528.010 which would require revocation or suspension of the beer or wine license; however, if the chance of winning the prize is part of the inducement to purchase the goods, the contest would violate Const., § 226 and subject the licenses to revocation or suspension. OAG 81-201 .

Research References and Practice Aids

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

243.502. Restrictions on possession and use of alcohol vaporizing device.

  1. Except as provided in subsection (2) of this section, a person shall not sell, purchase, deliver, give away, possess, use, or offer for sale or use an alcohol vaporizing device or assist another in selling or using an alcohol vaporizing device.
  2. The provisions of subsection (1) of this section shall not apply to:
    1. A hospital that operates primarily for the purpose of conducting scientific research;
    2. A public institution that is a member of the postsecondary education system or an independent institution as defined in KRS 164.001 that is conducting bona fide research;
    3. A pharmaceutical or biotechnology company conducting bona fide research;
    4. A manufacturer or distributor that sells an alcohol vaporizing device to one (1) of the entities set out in this subsection; or
    5. A device used by a manufacturer in the manufacturing process.
  3. Persons holding an alcohol vaporizing device in accordance with subsection (2)(a) to (d) of this section shall retain the alcohol vaporizing device in a secure location such that it is used only for research purposes. They shall not transfer the device to an entity or institution other than one covered by subsection (2) of this section and shall destroy the device when it is no longer of use. The department may promulgate administrative regulations authorizing additional reports if the department deems the reports reasonably necessary.

History. Enact. Acts 2008, ch. 28, § 1, effective July 15, 2008; 2010, ch. 24, § 579, effective July 15, 2010.

243.505. Operation of pari-mutuel betting system or conduct of licensed charitable gaming not grounds for revocation or suspension of license. [Repealed]

History. Enact. Acts 1952, ch. 223, § 1, effective March 26, 1952; 1994, ch. 66, § 17, effective March 16, 1994; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 223, § 1, effective March 26, 1952; 1994, ch. 66, § 17, effective March 16, 1994) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

243.510. Statement of causes of revocation to be furnished licensee. [Repealed]

HISTORY: 2554b-137; 2010, ch. 24, § 580, effective July 15, 2010; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, § 1, effective October 1, 1942, from Ky. Stat. § 2554b-137; 2010, ch. 24, § 580, effective July15, 2010) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

243.520. Institution of revocation proceedings — Notice — Hearing — Suspension under emergency order.

The department may, on its own initiative or on the complaint of any person, institute administrative proceedings before the board to revoke or suspend any license.A license may be revoked or suspended only after the licensee has been afforded the opportunity for a hearing conducted in accordance with KRS Chapter 13B. The department may issue an emergency order pursuant to KRS 13B.125 to summarily suspend a license upon finding that continued operation of the license holder pending a hearing would constitute a threat to the public health, safety, or welfare.

HISTORY: 2554b-142: amend. Acts 1944, ch. 154, § 20; 1996, ch. 318, § 161, effective July 15, 1996; 2017 ch. 62, § 76, effective June 29, 2017.

NOTES TO DECISIONS

1.Notice.

Where notice directing licensee to show cause why his license should not be revoked stated as grounds for revocation, a violation on a named day, it was error to permit evidence as to offenses on other days and at other times, not referred to in the notice. Leister v. State Alcoholic Beverage Control Board, 292 Ky. 705 , 168 S.W.2d 1, 1943 Ky. LEXIS 734 ( Ky. 1943 ).

2.Hearing.

A hearing on the question of revoking a license may be held by a majority of the board. Howard v. Kentucky Alcoholic Beverage Control Board, 294 Ky. 429 , 172 S.W.2d 46, 1943 Ky. LEXIS 472 ( Ky. 1943 ).

3.Evidence.

Evidence of investigator employed by association of brewers was entitled to full weight and consideration, as against contention that he was interested and prejudiced. Howard v. Kentucky Alcoholic Beverage Control Board, 294 Ky. 429 , 172 S.W.2d 46, 1943 Ky. LEXIS 472 ( Ky. 1943 ).

4.Waiver.

Licensee who entered his appearance at hearing and proceeded to trial without objection thereby waived objections that notice was not sufficiently specific or definite, that notice was not served as provided by civil code, and that state administrator had no authority to sign notice. Howard v. Kentucky Alcoholic Beverage Control Board, 294 Ky. 429 , 172 S.W.2d 46, 1943 Ky. LEXIS 472 ( Ky. 1943 ).

5.Procedure for Relief.

Licensee may seek a declaration of his rights previous to conducting his business in a manner prohibited by a regulation of the department, however, after the board has acquired jurisdiction of the question by citing licensee for a violation, he may obtain relief only in the manner prescribed by KRS 243.560 to 243.590 . Heyser v. Brown, 299 Ky. 82 , 184 S.W.2d 893, 1945 Ky. LEXIS 389 ( Ky. 1945 ).

Research References and Practice Aids

ALR

Cancelation or suspension of license irrespective of licensee’s personal fault, validity of statute or rule making specified conduct or condition the ground for. 3 A.L.R.2d 107.

Right to hearing before revocation or suspension of liquor license. 35 A.L.R.2d 1067.

Administrative discretion. 98 A.L.R.2d 1125.

Sale of liquor to homosexuals or permitting their congregation at licensed premises as ground for suspension or revocation of liquor license. 27 A.L.R.3d 1254.

Revocation or suspension of liquor license because of drinking or drunkenness on part of licensee or his associates. 36 A.L.R.3d 1301.

Sale or use of narcotics or dangerous drugs on licensed premises as ground for revocation or suspension of liquor license. 51 A.L.R.3d 1130.

243.530. License to be surrendered upon revocation — Police chief or sheriff to return license.

Within three (3) days after any order of revocation of a license becomes final, notice of revocation shall be given to the licensee and to the owner of the licensed premises. A notice mailed to the licensee and to the owner of the licensed premises at the address shown in the last application for a license or in the last statement supplemental to the application shall be deemed sufficient compliance with this section. The licensee shall at once surrender its license to the department. If the license revoked is for premises located in any city that has a police force of its own, the department, immediately upon mailing notice of the revocation of the license to the licensee, shall mail to the chief of the police department of that city a written notice stating the fact of the revocation, the name of the licensee whose license was revoked, the address of the premises that had been licensed under the revoked license, and the date of the revocation. If the license revoked is for premises that are not located in any city with a police force of its own, the department shall in like manner and at like time mail a similar notice to the sheriff of the county in which the premises are located. If the revoked license is not surrendered at once by the licensee, the chief of the police department or sheriff shall, at the request of the department, immediately cause one of its officers to take physical possession of the license and return it to the department.

HISTORY: 2554b-143; 2017 ch. 62, § 77, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

243.540. Scope of section — Disposition of stock upon revocation, surrender, court disposition, or nonrenewal of license — Disposition upon bankruptcy — Disposal of alcoholic beverages by secured creditor or landlord — Administrative regulations.

  1. The provisions of this section shall apply to any licensee who is unable to continue in business at the licensed premises because of:
    1. An act of God;
    2. A casualty;
    3. An acquisition by a federal, state, city, or other governmental agency under the power of eminent domain granted to the government or agency;
    4. A voluntary or involuntary acquisition by any corporation or other business entity recognized by law through the power of eminent domain;
    5. A loss of lease because the landlord fails to renew an existing lease;
    6. Court action;
    7. Default under a security agreement;
    8. Default under a lease; or
    9. Other verifiable business reason.
  2. If a license issued by the department has been revoked, the former licensee may, under the supervision of the state administrator, dispose of and transfer the former licensee’s stock to another licensee if the disposition is completed within ninety (90) days and the licensee is a distiller, rectifier, winery, or brewer. The disposition shall be completed within thirty (30) days if the licensee is a wholesaler or distributor or within twenty (20) days if the licensee is a retailer.
  3. A retail licensee in good standing with the department who voluntarily ceases to operate the licensed business for any reason other than revocation by the board or a court order shall dispose of all alcoholic beverage inventory within thirty (30) days of the event. The following requirements shall apply to the disposition of the licensee’s inventory:
    1. If the premises is still open to the public and the licensee has not yet surrendered the license, the licensee shall sell alcoholic beverages only to the public and shall not sell below costs;
    2. If a licensee has terminated the licensed business, the licensee shall submit a written request for approval from the state administrator within ten (10) days in advance of the sale to dispose of the licensee’s remaining inventory. The request shall identify the retailer who is purchasing the inventory, the proposed date of the sale, and the quantity, types, and brands of alcohol to be sold; and
    3. If a licensee has more than one (1) licensed retail premises and closes one (1) or more retail premises and seeks to transfer the inventory to another licensed retail premises the licensee owns, the licensee shall submit a request in writing to the state administrator at least ten (10) days before the inventory is transferred. The request shall identify the premises to which the alcohol is being transferred, the proposed date of the transfer, and the quantity, types, and brands of alcohol to be sold.
  4. If a licensee files for bankruptcy or is directed by a court to dispose of inventory to satisfy a lien or judgment, the inventory may be sold only to a licensee holding any license that authorizes the possession and sale of those alcoholic beverages. The bankrupt licensee or the licensee subject to the court order shall notify the department of the sale and shall attach a copy of the court order or the judgment directing the sale and a list of the quantity, types, and brands of alcohol to be sold, but if the licensee fails to do so, the notification may be made by the bankruptcy trustee, the lienholder, or the judgment creditor. Any licensee who purchases the inventory shall notify the department within five (5) days after the transfer of the specific inventory sold.
  5. A secured creditor or landlord that is in possession, custody, or control of any alcoholic beverages owned by a licensee may dispose of those alcoholic beverages in the following manner:
    1. The secured creditor or landlord shall submit a written request for approval from the state administrator, within twenty (20) days in advance of the sale or destruction of the licensee’s remaining inventory. The request shall identify the:
      1. Licensee who is purchasing the inventory or the business to destroy the inventory;
      2. Proposed date of the sale or destruction; and
      3. Quantity, types, and brands of alcohol to be sold or destroyed;
    2. The proposed transferee or transferees may be any person or persons holding any license that authorizes the possession and sale of those alcoholic beverages, or a business authorized to dispose of alcoholic beverages;
    3. A copy of the written request shall be mailed by the department to the licensee’s registered agent or last known address on file with the department by certified mail. Within ten (10) days after the department’s mailing of this request, the licensee shall file with the department and applicant any objection the licensee has to the request, or be permanently barred from objecting; and
    4. If a sale is approved, the licensee who purchases the inventory shall notify the department within five (5) days after the transfer of that specific inventory.
  6. The board may promulgate administrative regulations for additional means for the transfer or disposal of alcoholic beverage inventory.

HISTORY: 2554b-144: amend. Acts 1998, ch. 522, § 14, effective July 15, 1998; 2000, ch. 435, § 14, effective July 14, 2000; 2010, ch. 24, § 581, effective July 15, 2010; 2013, ch. 121, § 77, effective June 25, 2013; 2017 ch. 62, § 78, effective June 29, 2017.

243.550. Conduct of hearing by board.

Hearings upon appeals from orders of a local administrator, a license determination of a state administrator, or upon proceedings initiated by the department for license revocation or suspension shall be held by the board. The board may, at its discretion, hold the hearing in Frankfort, or in the county where the licensed premises, or the premises to be licensed, are located. Decisions shall be made and final orders entered only upon the vote of a majority of the board. The hearings shall be conducted in accordance with the provisions of KRS Chapter 13B.

HISTORY: 2554b-146: amend. Acts 1944, ch. 154, § 21; 1996, ch. 318, § 162, effective July 15, 1996; 1998, ch. 121, § 23, effective July 15, 1998; 2017 ch. 62, § 79, effective June 29, 2017.

NOTES TO DECISIONS

1.Hearing.

A hearing on the question of revoking a license may be held by a majority of the board. Howard v. Kentucky Alcoholic Beverage Control Board, 294 Ky. 429 , 172 S.W.2d 46, 1943 Ky. LEXIS 472 ( Ky. 1943 ).

2.Appeal of Denial.

Where voters in county local option election voted to legalize sale of alcoholic beverages and the county was allotted quota of retail package liquor licenses which quota was filled, nonsuccessful applicants who were admittedly qualified and to whose application no protest was made had standing to appeal administrator’s refusal to grant them licenses; however, trial court’s error in finding that there was no appeal from such refusal was harmless since the quota of licenses had been filled and the appeal would thus be an exercise in futility. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

Cited:

Martin v. Board of Council, 275 Ky. 142 , 120 S.W.2d 761, 1938 Ky. LEXIS 368 ( Ky. 1938 ); Richmond v. Collins, 310 Ky. 645 , 221 S.W.2d 625, 1949 Ky. LEXIS 988 ( Ky. 1949 ); Shearer v. Spadie, 260 S.W.2d 648, 1953 Ky. LEXIS 979 ( Ky. 1953 ); K. Whiskey Store, Inc. v. Shearer, 276 S.W.2d 457, 1955 Ky. LEXIS 424 ( Ky. 1955 ); Moberly v. King, 355 S.W.2d 309, 1962 Ky. LEXIS 68 ( Ky. 1962 ); George v. Kentucky Alcoholic Beverage Control Board, 403 S.W.2d 24, 1966 Ky. LEXIS 317 ( Ky. 1966 ); Haggard v. Dayton, 508 S.W.2d 590, 1974 Ky. LEXIS 623 ( Ky. 1974 ).

243.560. Appeal to Circuit Court from order of board — How taken — Necessary parties — Final order, when effective — Power of court to dissolve stay.

  1. All final orders of the board may be appealed to the Circuit Court of the county where the appellant resides or the county containing the appellant’s licensed premises, if any, notwithstanding KRS Chapter 13B.
  2. A party to the administrative action may institute an appeal by filing a petition in the office of the clerk of the Circuit Court of the county where the appellant resides or the county containing the appellant’s licensed premises, if any, within thirty (30) days after the final order of the board is mailed or delivered by personal service.
  3. The board, department, licensee or applicant, and any other parties to the administrative action shall be necessary parties to all appeals.

No final order of the board issuing a license shall become effective, and no license under that final order shall be issued, until the expiration of the appeal period contained in KRS Chapter 13B. If an appeal from a final order has been filed as provided under KRS 13B.140 , the final order shall not become effective until the appeal has been finally determined by the courts. During the pendency of any appeal, a court may dissolve the stay under this section for good cause shown.

HISTORY: 2554b-147: amend. Acts 1996, ch. 318, § 163, effective July 15, 1996; 2017 ch. 62, § 80, effective June 29, 2017.

NOTES TO DECISIONS

1.Procedure for Relief.

Licensee may seek a declaration of his rights previous to conducting his business in a manner prohibited by a regulation of the department, however, after the board has acquired jurisdiction of the question by citing licensee for a violation, he may obtain relief only in the manner prescribed by KRS 243.560 to 243.590 . Heyser v. Brown, 299 Ky. 82 , 184 S.W.2d 893, 1945 Ky. LEXIS 389 ( Ky. 1945 ).

Legislature did not contemplate administrative punishment of unlicensed parties because it failed to provide non-licensees with any appellate remedy of a decision by the Alcoholic Beverage Control Board; nowhere in KRS 243.560 , nor any other statute in KRS Chs. 241 to 244, is appellate review of the Board’s decision mentioned in the context of a non-licensee who has been aggrieved by the imposition of administrative fines. Ky. Licensed Bev. Ass'n v. Louisville-Jefferson County Metro Gov't, 127 S.W.3d 647, 2004 Ky. LEXIS 39 ( Ky. 2004 ).

2.Filing of Statement.

This section does not deny the privilege of filing a formal statement of appeal nor a petition to review the order of the board. Filing a statement is the better practice even when the attack is confined to a review of the evidence. Filing a petition is necessary where legal questions are raised other than those presented by record made before the board. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

3.Necessary Parties.

In appeal by competitor from order granting a liquor license the applicant for the license was an indispensable party and in his absence there could be no final adjudication of the matter. George v. Kentucky Alcoholic Beverage Control Board, 403 S.W.2d 24, 1966 Ky. LEXIS 317 ( Ky. 1966 ).

The requirement of joining the applicant or licensee as a party to an appeal is mandatory. George v. Kentucky Alcoholic Beverage Control Board, 403 S.W.2d 24, 1966 Ky. LEXIS 317 ( Ky. 1966 ).

For an applicant not joined in an appeal to move for dismissal of such an appeal does not waive the defect of parties. George v. Kentucky Alcoholic Beverage Control Board, 403 S.W.2d 24, 1966 Ky. LEXIS 317 ( Ky. 1966 ).

As the Kentucky Alcoholic Beverage Control Board is not an administrative department separate from the Kentucky Department of Alcoholic Beverage Control (ABC), the designation of the ABC as a party to an appeal to the circuit court is sufficient to confer subject matter jurisdiction under KRS 243.560(3). Bev. Warehouse, Inc. v. Commonwealth, 382 S.W.3d 34, 2011 Ky. App. LEXIS 211 (Ky. Ct. App. 2011).

4.Aggrieved Citizen.

Any “aggrieved citizen” may appeal an order of the board to the circuit court within the time specified. Kelly v. Marino, 358 S.W.2d 519, 1962 Ky. LEXIS 188 ( Ky. 1962 ).

The Legislature never intended an appeal under this section by an aggrieved citizen, who is not an applicant, from an order of the board granting the application for a liquor license; the citizen is heard by filing a “protest” under the provision of KRS 243.360 on the granting of a license. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

Where voters in county local option election voted to legalize sales of alcoholic beverages and the county was allotted 21 retail package liquor licenses, nonapplicant aggrieved citizens could allege no violation of any property rights and thus they had no standing to complain against actions of administrator and board in granting the licenses. Applicants for Retail Package Liquor Licenses v. Gulley, 674 S.W.2d 22, 1984 Ky. App. LEXIS 474 (Ky. Ct. App. 1984).

Under KRS 241.200 , a liquor store owner was an aggrieved citizen 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).

5.Public Interest.

An appeal to the circuit court by “citizen feeling himself aggrieved” by an order of the board granting a license does not afford any right to relief from such order on the ground that public interest considerations would have justified a refusal of the license by the administrator. Moberly v. King, 355 S.W.2d 309, 1962 Ky. LEXIS 68 ( Ky. 1962 ).

6.Failure of Board to Plead.

On appeal to Circuit Court by applicant for liquor license, following board’s refusal to issue license, the failure of the board to file any pleading did not entitle appellant to judgment, since the court was required, regardless of pleadings, to hear the case upon the record made before the board. Dunbar v. Alcoholic Beverage Control Board, 309 Ky. 70 , 216 S.W.2d 42, 1948 Ky. LEXIS 1071 ( Ky. 1948 ).

7.Filing of Transcript.

Under this section the time requirement for filing the transcript of evidence was directory and not mandatory. Bauer v. Alcoholic Beverage Control Board, 320 S.W.2d 126, 1959 Ky. LEXIS 218 ( Ky. 1959 ).

8.Injunction.

Where appellant had been granted temporary injunction pending determination of his petition to set aside order revoking his license, he could not attack validity of provision prohibiting issuance of injunction. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

9.Failure to Appeal to Board.

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 hence to Franklin County 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:

Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ); Reeves v. Simons, 289 Ky. 793 , 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ); Middleton’s Adm’x v. Middleton, 297 Ky. 109 , 179 S.W.2d 227, 1944 Ky. LEXIS 692 ( Ky. 1944 ); Brown v. Baumer, 301 Ky. 315 , 191 S.W.2d 235, 1945 Ky. LEXIS 719 ( Ky. 1945 ); Richmond v. Collins, 310 Ky. 645 , 221 S.W.2d 625, 1949 Ky. LEXIS 988 ( Ky. 1949 ); Louisville Retail Package Liquor Dealers’ Ass’n v. Shearer, 313 Ky. 316 , 231 S.W.2d 47, 1950 Ky. LEXIS 876 ( Ky. 1950 ); Reinsperg v. Reed, 313 Ky. 683 , 233 S.W.2d 412, 1950 Ky. LEXIS 964 ( Ky. 1950 ); Alcoholic Beverage Control Board v. Coghill, 273 S.W.2d 570, 1954 Ky. LEXIS 1183 ( Ky. 1954 ); Bartholomew v. Paniello, 287 S.W.2d 616, 1956 Ky. LEXIS 476 ( Ky. 1956 ); Lexington Retail Beverage Dealers Asso. v. Department of Alcoholic Beverage Control Board, 303 S.W.2d 268, 1957 Ky. LEXIS 239 ( Ky. 1957 ); Alcoholic Beverage Control Board v. Helm Hotel Cocktail Lounge, Inc., 357 S.W.2d 891, 1962 Ky. LEXIS 164 ( Ky. 1962 ); Alcoholic Beverage Control Board v. Woosley, 367 S.W.2d 127, 1963 Ky. LEXIS 12 ( Ky. 1963 ); Dink v. Palmer-Ball, 479 S.W.2d 897, 1972 Ky. LEXIS 327 ( Ky. 1972 ); Kentucky State Racing Com. v. Fuller, 481 S.W.2d 298, 1972 Ky. LEXIS 250 ( Ky. 1972 ); Lewis v. Smothers, 663 S.W.2d 228, 1984 Ky. App. LEXIS 441 (Ky. Ct. App. 1984); Pie Mut. Ins. Co. v. Kentucky Medical Ins. Co., 782 S.W.2d 51, 1990 Ky. App. LEXIS 2 (Ky. Ct. App. 1990).

243.570. Procedure on appeal. [Repealed.]

Compiler’s Notes.

This section (2554b-147: amend. Acts 1970, ch. 94, § 6) was repealed by Acts 1996, ch. 318, § 357, effective July 15, 1996.

243.580. Effective date of license after appeal — No injunction pending appeal. [Repealed.]

Compiler’s Notes.

This section (2554b-147) was repealed by Acts 1996, ch. 318, § 357, effective July 15, 1996.

243.590. Appeal to Court of Appeals.

Any party aggrieved by a judgment of the Circuit Court may appeal to the Court of Appeals in accordance with the Rules of Civil Procedure.

HISTORY: 2554b-147: amend. Acts 1952, ch. 84, § 58; 1960, ch. 104, § 15; 1976, ch. 62, § 109; 2017 ch. 62, § 81, effective June 29, 2017.

NOTES TO DECISIONS

1.Party.

The term “party” as used in this section clearly means a party of record in the proceedings. Bartholomew v. Paniello, 287 S.W.2d 616, 1956 Ky. LEXIS 476 ( Ky. 1956 ).

Only a “party” may appeal to the Court of Appeals from the circuit court under this section. Kelly v. Marino, 358 S.W.2d 519, 1962 Ky. LEXIS 188 ( Ky. 1962 ).

As the Kentucky state racing commission is charged with the duty of protecting substantial public interest and is therefore a representative of this interest in all proceedings, it was a “party aggrieved” within the purview of this section and can maintain the appeal. Kentucky State Racing Com. v. Fuller, 481 S.W.2d 298, 1972 Ky. LEXIS 250 ( Ky. 1972 ).

Cited:

Reinsperg v. Reed, 313 Ky. 683 , 233 S.W.2d 412, 1950 Ky. LEXIS 964 ( Ky. 1950 ); Alcoholic Beverage Control Board v. Coghill, 273 S.W.2d 570, 1954 Ky. LEXIS 1183 ( Ky. 1954 ); White v. England, 348 S.W.2d 936, 1961 Ky. LEXIS 47 ( Ky. 1961 ); George v. Kentucky Alcoholic Beverage Control Board, 403 S.W.2d 24, 1966 Ky. LEXIS 317 ( Ky. 1966 ).

243.595. Revocation or suspension of license by circuit court. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 154, § 32) was repealed by Acts 1966, ch. 255, § 283.

243.600. Issuance of county licenses.

  1. The clerk of a county whose fiscal court has imposed license fees under KRS 243.060 shall immediately notify the board of the amount of the fees fixed. The county licenses shall be issued and the fees collected by the county clerk, who may charge a fee of fifty cents ($0.50) for his services for each license issued. The county clerk shall report and pay to the county treasurer at the end of each month such fees as he has collected. No license shall be issued without the approval of the county administrator, if there is one in the county. The licenses shall be issued in such form as may be prescribed by the county administrator, if there is one in the county, or by the board, if there is no county administrator.
  2. If any part of this section is held invalid, all of this section and of KRS 243.060 shall also be considered invalid.

History. 2554b-112, 2554b-221.

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 .

If the county judge, 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 .

243.610. Issuance of city licenses.

The clerk of a city whose legislative body has imposed license fees under KRS 243.070 shall immediately notify the board of the amount of the fees fixed. The city licenses shall be issued and the fees collected by such municipal official as may be designated by ordinance. That official shall report and pay to the city treasurer at the end of each month such license fees as he has collected. No license shall be issued by the clerk without the approval of the city administrator, if there is one in the city. The licenses shall be issued in such form as may be prescribed by the city administrator, if there is one in the city, or by the board if there is no city administrator.

History. 2554b-113.

243.620. Posting of licenses.

  1. Before commencing or doing any business for the time for which a license has been issued, all licenses shall be posted and at all times displayed in a conspicuous place in the room or principal room where the business is carried on, so that all persons visiting the place may readily see the license.
  2. No licensee shall post the license or permit it to be posted, upon premises other than the licensed premises or upon premises where traffic in alcoholic beverages is being carried on by any person other than the licensee, or knowingly deface, destroy, or alter the license in any respect.

HISTORY: 2554b-138, 2554b-205: amend. Acts 1998, ch. 121, § 24, effective July 15, 1998; 2017 ch. 62, § 82, effective June 29, 2017.

243.630. Transfer of license or acquisition of interest without authorization prohibited.

  1. For purpose of this section, “transfer” means:
    1. The transfer to a new person or entity of ten percent (10%) or more ownership interest in any licensed business or license;
    2. The transfer in bulk, and not in the ordinary course of business, of a major part of the fixtures, materials, supplies, merchandise, or other inventory of a licensee’s business; or
    3. The transfer of a business or license to a different premises.
  2. Any license issued to any person for any licensed premises shall not be transferable or assignable to any other person or to any other premises or to any other part of the building containing the licensed premises, unless a transfer or assignment is authorized by the state administrator in the exercise of sound discretion.
  3. A licensee shall not acquire or otherwise dispose of any interest in a licensed premises or any license issued by the department, by sale of assets, stock, inventory, control or right of control, or activities on the licensed premises without prior approval of the state administrator. The state administrator shall treat a transfer applicant as a new applicant for qualification and discretion purposes.
  4. Any acquisition of interest in a license without prior authorization shall be void.
  5. All applications for approval of a transfer shall be made in writing to the state administrator having jurisdiction over the license.
  6. Applications for approval of a transfer shall be made under oath or affirmation, shall be signed by both the transferor and the transferee, and shall contain any other information prescribed by the department.
  7. The appropriate state administrator shall deny or approve the application when, in the sound discretion of the administrator, all of the necessary information has been obtained or the applicant has refused to provide requested information, but it shall not be acted upon before the end of the public protest period outlined in KRS 243.360 .
  8. No licensee or other person seeking to acquire an interest in an existing license shall transfer control or assume control of any licensed premises by agreement or otherwise without the written consent of the state administrator of malt beverages or the state administrator of distilled spirits or both.
  9. A licensee shall not transfer its license or any interest in the license while any proceedings against the license or the licensee for a violation of any statute or administrative regulation which may result in the suspension or revocation of the license are pending.
  10. A licensee shall not transfer its license or any interest it has in the license if the licensee owes a debt on the inventory to a wholesaler responsible for the collection and payment of the tax imposed under KRS 243.884 .
  11. A licensee shall not transfer its license or any interest in the license if the licensee owes the Commonwealth of Kentucky for taxes as defined in KRS 243.500(4). A transfer shall not take place until the department is notified by the Kentucky Department of Revenue that the licensee’s indebtedness has been paid or resolved to the satisfaction of the Department of Revenue. This section shall not prohibit a transfer of a license or an interest in a license by a trustee in bankruptcy if all other requirements of this section are met.

HISTORY: 2554b-160: amend. Acts 1980, ch. 188, § 198, effective July 15, 1980; 1998, ch. 522, § 15, effective July 15, 1998; 2004, ch. 20, § 10, effective July 13, 2004; 2005, ch. 85, § 655, effective June 20, 2005; 2010, ch. 24, § 582, effective July 15, 2010; 2017 ch. 62, § 83, effective June 29, 2017.

NOTES TO DECISIONS

1.Purpose.

The prohibition against transfer is designed to secure revenue for each premise licensed and was not intended to be regulatory as to the places in which a licensee might relocate his place of business. Louisville Retail Package Liquor Dealers' Ass'n v. Shearer, 313 Ky. 316 , 231 S.W.2d 47, 1950 Ky. LEXIS 876 ( Ky. 1950 ).

2.Abandonment.

This section permits abandonment of an old license and the issuance of a new license at a different location. Louisville Retail Package Liquor Dealers' Ass'n v. Shearer, 313 Ky. 316 , 231 S.W.2d 47, 1950 Ky. LEXIS 876 ( Ky. 1950 ).

3.Transfer of License.

While the board cannot issue new licenses which will exceed the quota fixed by the board, the board may, however, approve a transfer of a license in accordance with this section and may also approve the renewal of licenses previously issued. Spalding v. Alcoholic Beverage Control, 323 S.W.2d 859, 1959 Ky. LEXIS 344 ( Ky. 1959 ).

4.Contract to Transfer.

Where a contract was made under which the defendant was to assume the plaintiff’s mortgage in exchange for the transfer of plaintiff’s alcoholic beverage licenses subject to the approval of the alcoholic beverage control board of the transfer, the statute was not violated and the contract was enforceable. Lang v. Jones, 433 S.W.2d 888, 1968 Ky. LEXIS 307 ( Ky. 1968 ).

Where an agreement to assume a debt in exchange for the transfer of liquor licenses was made in which it was specifically stated that the contract was contingent upon the approval of the alcoholic beverage control board to transfer a liquor license, the contract was not illegal. Lang v. Jones, 433 S.W.2d 888, 1968 Ky. LEXIS 307 ( Ky. 1968 ).

Where a transfer of alcoholic beverage licenses was approved by the Commonwealth, a contract involving the transfer of the alcoholic beverage licenses was enforceable regardless of the fact that at the time the contract was made the transfer might or might not have been approved by the commonwealth. Lang v. Jones, 433 S.W.2d 888, 1968 Ky. LEXIS 307 ( Ky. 1968 ).

Cited:

Grief v. Wood, 378 S.W.2d 611, 1964 Ky. LEXIS 188 ( Ky. 1964 ).

243.635. “Transfer” defined — Transfer of license under specified circumstances prohibited. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 192, § 1, effective July 13, 1990) was repealed by Acts 1998, ch. 522, § 28, effective July 15, 1998.

243.640. Continuance in business by representative of defunct licensee.

  1. If a corporation, limited liability company, limited partnership, partnership, or other business entity recognized by law that holds a license is dissolved, or if a receiver, assignee for the benefit of creditors, or a guardian or conservator for the property of a licensee is appointed during the time for which a license was approved, or if a licensee dies during the time for which the license was issued and a personal representative is appointed for the licensee’s estate, that corporation, limited liability company, limited partnership, partnership, other business entity recognized by law, receiver or assignee, or the personal representative of the estate of the deceased or individual adjudged to be mentally disabled, may be permitted to continue the business upon the licensed premises for the balance of the term for which the license was effective, and any renewed license approved by the state administrator, with the same rights and subject to the same restrictions and liabilities as if they had been the original licensee.
  2. Before continuing the business the receiver, assignee, personal representative, or committee shall file a statement with the state administrator or administrators setting forth the facts and circumstances by which they have succeeded to the rights of the original licensee. The administrator or administrators may, in the exercise of the administrator’s sound discretion, permit or refuse to permit the continuance of the business.
  3. If the administrator permits the continuance of the business, the license shall be submitted to the administrator, and the administrator shall write or stamp across the face of the license the words: “.... is permitted to exercise the rights and privileges of the original licensee as (assignee, receiver, personal representative, or committee, as the case may be) of the original licensee for the unexpired term of this license.” The endorsement on the face of the license shall be dated and signed by the person making it.

HISTORY: 2554b-148: amend. Acts 1982, ch. 141, § 77, effective July 1, 1982; 1998, ch. 121, § 25, effective July 15, 1998; 2017 ch. 62, § 84, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Louisville Retail Package Liquor Dealers’ Ass’n v. Shearer, 313 Ky. 316 , 231 S.W.2d 47, 1950 Ky. LEXIS 876 ( Ky. 1950 ); Ladt v. Arnold, 583 S.W.2d 702, 1979 Ky. App. LEXIS 435 (Ky. Ct. App. 1979).

243.650. Transfer of license to other premises.

In case of destruction by an act of God or casualty for which the licensee was not responsible, of premises for which a license has been issued, the state administrator may, if in the administrator’s discretion the action is necessary to attain justice, change the license to authorize continuance of business at other premises. No transfer shall be made unless the licensee has filed a written verified statement of the reasons for the necessity of transfer. If the transfer is made the state administrator shall endorse a description of the new premises upon the license and shall date and sign the endorsement.

HISTORY: 2554b-149; 2017 ch. 62, § 85, effective June 29, 2017.

NOTES TO DECISIONS

1.Discretion of Board.

Where the present holder of a valid retail package liquor license issued for premises situated in the rural or nonincorporated area of a county applies “to transfer” the license to another rural location in the same county and within the same general geographic area, it is within the discretionary power of the alcoholic beverage control board to approve and authorize such “transfer” if the applicant for the new license has previously satisfied the requirements of KRS 243.230 (4) (a). Hagan v. Knippenberg, 549 S.W.2d 509, 1976 Ky. LEXIS 151 ( Ky. 1976 ).

2.Invalid Transfer.

Where Alcoholic Beverage Control Board granted retail package license to previous license holder who moved premises ten miles from old location into a new voting district, and six tenths of a mile from the holder’s previously licensed premises, it acted erroneously. Isaacs v. Lewis, 678 S.W.2d 386, 1984 Ky. LEXIS 287 ( Ky. 1984 ).

Cited:

Louisville Retail Package Liquor Dealers’ Ass’n v. Shearer, 313 Ky. 316 , 231 S.W.2d 47, 1950 Ky. LEXIS 876 ( Ky. 1950 ); Moberly v. Thompson, 404 S.W.2d 277, 1966 Ky. LEXIS 288 ( Ky. 1966 ).

243.660. Pledging or granting of security interest in any licenses prohibited.

No person shall pledge or grant a security interest in any license. This type of pledge or security interest and any contract providing for the pledge or security interest shall be void.

HISTORY: 2554b-161; 2017 ch. 62, § 86, effective June 29, 2017.

NOTES TO DECISIONS

1.Lease of License.

Since a licensee has a “property right” in a liquor-by-the-drink license as between himself and third parties, the licensee could make it the subject of a lease agreement requiring the leased license to be reconveyed at the termination of business operations, and this section has no application to such a case. Ladt v. Arnold, 583 S.W.2d 702, 1979 Ky. App. LEXIS 435 (Ky. Ct. App. 1979).

243.670. Applicant to pay for own license.

The license fee for every license shall be payable by the person who makes application for the license and to whom it is issued, and no other person shall pay for any license issued.

HISTORY: 2554b-163; 2017 ch. 62, § 87, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Commonwealth, Alcoholic Beverage Control Board v. Lexington Johnnie’s, Inc., 553 S.W.2d 694, 1977 Ky. LEXIS 478 ( Ky. 1977 ).

243.675. Injunctive or other judicial proceedings by board — Priority of cases.

The board may compel obedience to its lawful orders by injunction or other proper proceedings in Franklin Circuit Court or any other court of competent jurisdiction, and the proceedings shall have priority over all pending cases.

History. Enact. Acts 1998, ch. 522, § 1, effective July 15, 1998.

Distilled Spirits Tax

243.680. Tax on manufacturing and importation of distilled spirits — Biennial reduction — Exemption of nonbeverage alcohol. [Repealed.]

Compiler’s Notes.

This section (4214a-13, 4214a-16, 4221a-17: amend. Acts 1956, ch. 114, § 1; 1966, ch. 254, § 5, effective July 1, 1966) was repealed by Acts 1966, ch. 254, § 11, effective July 1, 1971.

243.685. Exemption of alcohol and distilled spirits for industrial purposes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 12, § 1, 2 and 4; 1950, ch. 176, § 3) was repealed by Acts 1966, ch. 254, § 11, effective July 1, 1971.

243.690. Tax on blending, rectifying and mixing. [Repealed.]

Compiler’s Notes.

This section (4214a-15: amend. Acts 1956, ch. 114, § 2, effective May 18, 1956) was repealed by Acts 1966, ch. 254, § 11, effective July 1, 1971.

243.700. Suit to delay payment forbidden — Repayment of taxes. [Repealed.]

Compiler’s Notes.

This section (4214a-23) was repealed by Acts 1978, ch. 233, § 39, effective June 17, 1978.

243.705. No tax for privilege of manufacturing distilled spirits in amount equal to amount destroyed by accidental fire. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 107, §§ 1, 4) was repealed by Acts 1966, ch. 254, § 11.

243.706. Permit for manufacture of distilled spirits to replace spirits lost by fire; conditions of issuance. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 107, §§ 1, 4; 1956, ch. 135, § 1, effective May 18, 1956) was repealed by Acts 1966, ch. 254, § 11.

243.707. Legislative intent as to tax allowance for distilled spirits lost by fire. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 107, §§ 2, 4) was repealed by Acts 1966, ch. 254, § 11.

Wholesaler’s Tax

243.710. Wholesaler’s tax on distilled spirits.

Each wholesaler shall pay to the Department of Revenue five cents ($0.05) per case on each case of distilled spirits sold by him in the state. This tax shall be computed each month according to the report required to be filed by KRS 243.850 and shall be paid on or before the date in each succeeding month when reports are required to be filed.

History. 2554e-11; amend. 2005, ch. 85, § 656, effective June 20, 2005.

Excise Taxes

243.715. Floor stocks tax on wine and malt beverages for 1954. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 75, § 2; 1966, ch. 255, § 215) was repealed by Acts 1968, ch. 152, § 168.

243.720. Rate of tax.

    1. There is levied upon the use, sale, or distribution by sale or gift of distilled spirits a tax of one dollar and ninety-two cents ($1.92) on each wine gallon of distilled spirits, and a proportional rate per gallon on all distilled spirits used, sold, or distributed in any container of more or less than one (1) gallon, but the rate of the excise tax on spirits in retail containers of one-half (1/2) pint shall be twelve cents ($0.12); and (1) (a) There is levied upon the use, sale, or distribution by sale or gift of distilled spirits a tax of one dollar and ninety-two cents ($1.92) on each wine gallon of distilled spirits, and a proportional rate per gallon on all distilled spirits used, sold, or distributed in any container of more or less than one (1) gallon, but the rate of the excise tax on spirits in retail containers of one-half (1/2) pint shall be twelve cents ($0.12); and
    2. Notwithstanding the provisions of paragraph (a) of this subsection, distilled spirits placed in containers for sale at retail, where the distilled spirits represent six percent (6%) or less of the total volume of the contents of such containers, shall be taxed at the rate of twenty-five cents ($0.25) per gallon.
  1. There is levied upon the use, sale, or distribution by sale or gift of wine, a tax of fifty cents ($0.50) on each gallon of wine, and a proportional rate per gallon on the wine used, sold, or distributed in any container of more or less than one (1) gallon, but the tax shall not be less than four cents ($0.04) on the sale or distribution of any retail container of wine.
    1. There is levied upon the sale or distribution by sale or gift of malt beverages an excise tax of two dollars and fifty cents ($2.50) on each barrel of thirty-one (31) gallons and a proportional rate per gallon on malt beverages sold or distributed in any container of more or less than thirty-one (31) gallons; (3) (a) There is levied upon the sale or distribution by sale or gift of malt beverages an excise tax of two dollars and fifty cents ($2.50) on each barrel of thirty-one (31) gallons and a proportional rate per gallon on malt beverages sold or distributed in any container of more or less than thirty-one (31) gallons;
    2. Each brewer producing malt beverages in this state shall be entitled to a credit of fifty percent (50%) of the tax levied on each barrel of malt beverages sold in this state, up to three hundred thousand (300,000) barrels per annum.
  2. This section shall not apply to:
    1. Wine manufactured, sold, given away, or distributed and used solely for sacramental purposes; or
    2. Distilled spirits and wine purchased by holders of special licenses provided for in KRS 243.320 and purchased and used in the manner authorized by those licenses.

History. 2554b-127, 4281c-2, 4281c-3, 4281c-4: amend. Acts 1948, ch. 100; 1954, ch. 75, § 1; 1970, ch. 21, § 1; 1976, ch. 57, § 1; 1982, ch. 390, § 5, effective June 1, 1982; 1986, ch. 496, § 24, effective August 1, 1986; 2013, ch. 121, § 78, effective June 25, 2013.

Legislative Research Commission Note.

Although KRS 243.720 was included as being amended in 1982, ch. 244, § 3, amended language was deleted by House Floor Amendment.

NOTES TO DECISIONS

1.Purpose.

Purpose of statute is not to regulate or prohibit gifts of intoxicating liquors in small quantities. Frank Fehr Brewing Co. v. Commonwealth, 296 Ky. 667 , 178 S.W.2d 197, 1944 Ky. LEXIS 608 ( Ky. 1944 ).

2.Construction.

This section manifests intention to cover only traffic or commercial transactions in beverages. Frank Fehr Brewing Co. v. Commonwealth, 296 Ky. 667 , 178 S.W.2d 197, 1944 Ky. LEXIS 608 ( Ky. 1944 ).

3.Nature of Tax.

This is an “excise,” “sales,” or “consumer’s tax” to be paid in the first instance by the seller but which is collectible from the ultimate consumer by addition of tax by wholesaler or retailer to sales price of the beverages. Maloney Davidson Co. v. Martin, 274 Ky. 449 , 118 S.W.2d 708, 1938 Ky. LEXIS 268 ( Ky. 1938 ).

4.Distribution.

“Distribution” does not embrace consumption, but carries the idea of removing or delivering beverage or permitting it to be done in customary receptacles. Frank Fehr Brewing Co. v. Commonwealth, 296 Ky. 667 , 178 S.W.2d 197, 1944 Ky. LEXIS 608 ( Ky. 1944 ).

5.Free Beer.

A brewery’s furnishing free beer from faucet to employes and visitors was not subject to tax. Frank Fehr Brewing Co. v. Commonwealth, 296 Ky. 667 , 178 S.W.2d 197, 1944 Ky. LEXIS 608 ( Ky. 1944 ).

Gift of beer to groups using brewery’s rathskeller, undoubtedly for advertising and good will purposes, is taxable. Frank Fehr Brewing Co. v. Commonwealth, 296 Ky. 667 , 178 S.W.2d 197, 1944 Ky. LEXIS 608 ( Ky. 1944 ).

6.Federal Agency Exempt.

Whiskey shipped in interstate commerce to officers’ club at Fort Knox was not subject to consumer’s tax as officers’ club was instrumentality of U.S. government and exempt from state taxation under the Buck Act (4 USCS § 105 et seq.). Maynard & Child, Inc. v. Shearer, 290 S.W.2d 790, 1955 Ky. LEXIS 8 ( Ky. 1955 ).

7.Double Taxation.

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).

8.Ethyl Alcohol.

Ethyl alcohol was taxable under former act whether intended for beverage or non-beverage uses. H. O. Hurley Co. v. Martin, 267 Ky. 182 , 101 S.W.2d 657, 1936 Ky. LEXIS 762 ( Ky. 1936 ) (decided under prior law).

Cited:

Falls City Brewing Co. v. Reeves, 40 F. Supp. 35, 1941 U.S. Dist. LEXIS 2844 (D. Ky. 1941 ).

Research References and Practice Aids

Cross-References.

Warehouses, taxation of distilled spirits stored in, KRS 132.180 .

243.730. Reports by wholesalers and distributors or retailers — Applicability of brewers’ tax credit — Due date of tax — Advance payments.

    1. Wholesalers of distilled spirits and wine shall pay and report the tax levied by KRS 243.720 (1) and (2) on or before the twentieth day of the calendar month next succeeding the month in which possession or title of the distilled spirits and wine is transferred from the wholesaler to retailers or consumers in this state, in accordance with rules and regulations of the Department of Revenue designed reasonably to protect the revenues of the Commonwealth. (1) (a) Wholesalers of distilled spirits and wine shall pay and report the tax levied by KRS 243.720 (1) and (2) on or before the twentieth day of the calendar month next succeeding the month in which possession or title of the distilled spirits and wine is transferred from the wholesaler to retailers or consumers in this state, in accordance with rules and regulations of the Department of Revenue designed reasonably to protect the revenues of the Commonwealth.
    2. Distributors or retailers of malt beverages, who purchase malt beverages directly from a brewer, shall pay and report the tax levied by KRS 243.720(3) on or before the twentieth day of the calendar month next succeeding the month in which the brewer sells, transfers, or passes title of the malt beverage to the distributor or retailer, in accordance with rules and regulations of the Department of Revenue designed reasonably to protect the revenues of the Commonwealth. The credit allowed brewers in this state, under the provisions of KRS 243.720(3)(b), shall flow through to the distributor or retailer who purchases malt beverages directly from the brewer. If a brewer sells, transfers, or passes title to malt beverages to any of its employees for home consumption or to any charitable or fraternal organization pursuant to the provisions of KRS 243.150 , the brewer shall be responsible for paying and reporting the tax levied by KRS 243.720(3) in accordance with the provisions of subsection (c) of this section.
    3. Every brewer selling, transferring, or passing title to malt beverages to any person in this state other than a distributor or retailer, and every other person selling, transferring, or passing title of distilled spirits, wine, or malt beverages to distributors, retailers, or consumers shall report and pay the tax levied by KRS 243.720(1), (2), or (3) on or before the twentieth day of the calendar month next succeeding the month in which possession or title of distilled spirits, wine, or malt beverages is transferred to a distributor, retailer, or consumer in this state, in accordance with rules and regulations of the Department of Revenue designed reasonably to protect the revenues of the Commonwealth.
    4. Every distributor, retailer, or consumer possessing, using, selling, or distributing distilled spirits, wine, or malt beverages in this state upon which the tax levied by KRS 243.720(1), (2), or (3) and KRS 243.884 has not been paid shall be jointly and severally liable for reporting and paying the tax due, in accordance with rules and regulations of the Department of Revenue designed reasonably to protect the revenues of the Commonwealth. Such liability shall not be extinguished until the tax has been paid to the Department of Revenue.
    5. Notwithstanding the provisions of paragraph (a) of this subsection, every owner of a small farm winery shall pay and report the tax levied by KRS 243.720 (1) and (2) on a quarterly basis, in accordance with administrative regulations of the Department of Revenue designed reasonably to protect the revenues of the Commonwealth.
  1. Every wholesaler of distilled spirits or wine before using, selling, or distributing by sale or gift distilled spirits and wine shall qualify with the Department of Revenue.
  2. Every brewer before selling or distributing by sale or gift malt beverages, or before importing malt beverages into the state, shall qualify with the Department of Revenue in such manner as the Department of Revenue may require.

History. 4281c-24: amend. Acts 1944, ch. 154, § 22; 1952, ch. 218, § 2; 1954, ch. 110, § 2; 1960, ch. 186, Art. V, § 1; 1962, ch. 299; 1978, ch. 233, § 23, effective June 17, 1978; 1982, ch. 390, § 6, effective June 1, 1982; 1992, ch. 227, § 1, effective August 1, 1992; 1998, ch. 474, § 2, effective July 15, 1998; 2005, ch. 85, § 657, effective June 20, 2005; 2006, ch. 179, § 10, effective January 1, 2007; 2010, ch. 24, § 583, effective July 15, 2010; 2013, ch. 121, § 79, effective June 25, 2013.

NOTES TO DECISIONS

1.Injunction.

The federal courts will not enjoin enforcement of a state liquor tax, alleged to be unconstitutional, where the enforcement is sought by suit pending in a state court and where the state courts afford a plain, speedy and efficient remedy. Kohn v. Central Distributing Co., 306 U.S. 531, 59 S. Ct. 689, 83 L. Ed. 965, 1939 U.S. LEXIS 650 (U.S. 1939) (decided under prior law).

243.740. Who to pay tax and affix tax stamps. [Repealed.]

Compiler’s Notes.

This section (4281c-5, 4281c-6, 4281c-10; Acts 1952, ch. 218, § 1) was repealed by Acts 1960, ch. 186, Art. V, § 2.

243.750. Purchaser to pay tax, when. [Repealed.]

Compiler’s Notes.

This section (4281c-7) was repealed by Acts 1960, ch. 186, Art. V, § 2.

243.760. Prohibition of sale, transportation or purchase without stamps. [Repealed.]

Compiler’s Notes.

This section (4281c-13) was repealed by Acts 1960, ch. 186, Art. V, § 2.

243.770. Stamps affixed to barrels. [Repealed.]

Compiler’s Notes.

This section (4281c-17) was repealed by Acts 1960, ch. 186, Art. V, § 2.

243.780. Out-of-state vendors may purchase stamps. [Repealed.]

Compiler’s Notes.

This section (4281c-12) was repealed by Acts 1960, ch. 186, Art. V, § 2, effective March 25, 1960.

243.790. Alcoholic beverages — No tax when to be shipped and consumed out of state not subject to tax — Conditions of exemption.

The sale or distribution of alcoholic beverages manufactured in or imported into this state for shipment permanently out of the state to be sold without the state and consumed without the state shall not be subject to the tax imposed by KRS 243.720 . Provided, however, the Department of Revenue may, when necessary for the purpose of control enforcement or protection of revenue, prescribe the conditions under which containers of such alcoholic beverages for shipment permanently out of the state to be sold without the state and consumed without the state may be kept and trafficked in without payment of the tax.

History. 4281c-14: amend. Acts 1942, ch. 162, §§ 3, 4; 2005, ch. 85, § 658, effective June 20, 2005; 2021 ch. 13, § 11, effective March 12, 2021.

NOTES TO DECISIONS

1.Stamp.

The department of revenue is authorized to require the affixing of a stamp in such form and manner as would indicate the purpose of the wholesaler to ship his wares permanently out of the state for sale and consumption. Maloney Davidson Co. v. Martin, 274 Ky. 449 , 118 S.W.2d 708, 1938 Ky. LEXIS 268 ( Ky. 1938 ).

An authorized wholesaler has a right to sell to other wholesalers alcoholic beverages manufactured in or imported into state for shipment permanently out of the state or to be sold or consumed out of the state, without payment of tax on the sale or distribution, but he must affix such stamp or evidence as the revenue department may require and furnish without charge. Maloney Davidson Co. v. Martin, 274 Ky. 449 , 118 S.W.2d 708, 1938 Ky. LEXIS 268 ( Ky. 1938 ).

243.800. Commissioner to prepare stamps and make them available. [Repealed.]

Compiler’s Notes.

This section (4281c-11) was repealed by Acts 1960, ch. 186, Art. V, § 2, effective March 25, 1960.

243.810. Forging, counterfeiting or altering stamp or writing prohibited. [Repealed.]

Compiler’s Notes.

This section (4281c-22) was repealed by Acts 1960, ch. 186, Art. V, § 2, effective March 25, 1960.

243.820. Cancellation of stamps. [Repealed.]

Compiler’s Notes.

This section (4281c-16) was repealed by Acts 1960, ch. 186, Art. V, § 2, effective March 25, 1960.

243.830. Tax need not be paid more than once; gratuitous stamps. [Repealed.]

Compiler’s Notes.

This section (4281c-15) was repealed by Acts 1960, ch. 186, Art. V, § 2, effective March 25, 1960.

243.840. Unlawful to possess unstamped beverage. [Repealed.]

Compiler’s Notes.

This section (4281c-18) was repealed by Acts 1960, ch. 186, Art. V, § 2, effective March 25, 1960.

243.850. Licensee to report to Department of Revenue on trafficking in alcoholic beverages.

For the purpose of assisting in the enforcement of KRS 243.720 to 243.850 and 243.884 or any amendments thereof, every licensee, except retailers, whether subject to the payment of taxes imposed by said sections or any amendments thereof, shall, on or before the twentieth day of each month, render to the Department of Revenue a statement, in writing, of all his trafficking in alcoholic beverages during the preceding month. Such statement shall be taken directly from the records of the reporting licensee, and shall set forth on forms furnished by the Department of Revenue such information as shall be required by it. Such statement shall include alcohol destined for sale outside the state, as well as alcoholic beverages subject to the tax imposed by KRS 243.720 to 243.850 and 243.884 or any amendments thereof. Provided, that the Department of Revenue shall have authority to require from retail licensees and other licensees, other reports and statements at such times as are necessary for the enforcement of KRS 243.720 to 243.850 and 243.884 or any amendments thereof.

History. 4281c-19: amend. Acts 1942, ch. 162, §§ 2, 4; 1982, ch. 390, § 8, effective June 1, 1982; 1986, ch. 496, § 25, effective August 1, 1986; 2005, ch. 85, § 659, effective June 20, 2005.

NOTES TO DECISIONS

Cited:

Maloney Davidson Co. v. Martin, 274 Ky. 449 , 118 S.W.2d 708, 1938 Ky. LEXIS 268 ( Ky. 1938 ); Frank Fehr Brewing Co. v. Commonwealth, 296 Ky. 667 , 178 S.W.2d 197, 1944 Ky. LEXIS 608 ( Ky. 1944 ).

243.860. Tax crowns may be used in lieu of stamps. [Repealed.]

Compiler’s Notes.

This section (4281c-26, 4281c-28) was repealed by Acts 1960, ch. 186, Art. V, § 2.

243.870. Withdrawal for personal use of distilled spirits manufactured prior to prohibition. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 198; 1944, ch. 154, § 23) was repealed by Acts 1978, ch. 233, § 39, effective June 17, 1978.

243.882. Definitions for KRS 243.884 to 243.890.

For the purposes of KRS 243.884 to 243.890 :

  1. “Distributor” means a person required to be or who is a licensee authorized to do business pursuant to KRS 243.180 ;
  2. “Microbrewery” means a person required to be or who is a licensee authorized to do business pursuant to KRS 243.157 ;
  3. “Wholesale sale” or “sale at wholesale” means:
    1. A sale made for the purpose of resale in the regular course of business of beer, wine, or distilled spirits, except as provided in KRS 243.884(3); or
    2. A sale of malt beverages made by a microbrewery as authorized by  KRS 243.157 ; and
  4. “Wholesaler” means a person required to be or who is a licensee authorized to do business pursuant to KRS 243.160 and 243.170 .

HISTORY: Enact. Acts 1982, ch. 390, §§ 2, 3, effective June 1, 1982; 1994, ch. 451, § 3, effective July 15, 1994; 2016 ch. 80, § 19, effective July 15, 2016; 2018 ch. 16, § 2, effective July 14, 2018.

Legislative Research Commission Notes.

(7/15/2014). 2014 Ky. Acts ch. 102, sec. 18, amended KRS 243.884 , following a free conference committee for HB 445 to “adjust the tax rates on beer and wine.” In this amendment the internal numbering of KRS 243.884 was changed and subsection (2) was renumbered as subsection (3). An existing reference within KRS 243.884 to “subsection (3) of this section” was changed to “subsection (2)”. However this conforming change was not made to another statute, KRS 243.882(1), which refers to “KRS 243.884(2).” The Reviser of Statutes has made this change to KRS 243.882(1) under the authority of KRS 7.136 .

243.884. Wholesale sales tax imposed — Rate — Report and payment — Exemptions.

    1. For the privilege of making “wholesale sales” or “sales at wholesale” of beer, wine, or distilled spirits, a tax is hereby imposed upon all wholesalers of wine and distilled spirits, all distributors of beer, all direct shipper licensees shipping alcohol to a consumer at a Kentucky address, all distillers making sales pursuant to KRS 243.0305(3), (4)(a)1. and 2., (4)(c), (7), (9), (10), and (12), and all microbreweries selling malt beverages under KRS 243.157 . (1) (a) For the privilege of making “wholesale sales” or “sales at wholesale” of beer, wine, or distilled spirits, a tax is hereby imposed upon all wholesalers of wine and distilled spirits, all distributors of beer, all direct shipper licensees shipping alcohol to a consumer at a Kentucky address, all distillers making sales pursuant to KRS 243.0305(3), (4)(a)1. and 2., (4)(c), (7), (9), (10), and (12), and all microbreweries selling malt beverages under KRS 243.157 .
    2. Prior to July 1, 2015, the tax shall be imposed at the rate of eleven percent (11%) of the gross receipts of any such wholesaler or distributor derived from “sales at wholesale” or “wholesale sales” made within the Commonwealth, except as provided in subsection (3) of this section. For the purposes of this section, the gross receipts of a microbrewery making “wholesale sales” shall be calculated by determining the dollar value amount that the microbrewer would have collected had it conveyed to a distributor the same volume sold to a consumer as allowed under KRS 243.157 (3)(b) and (c).
    3. On and after July 1, 2015, the following rates shall apply:
      1. For distilled spirits, eleven percent (11%) of wholesale sales or sales at wholesale; and
      2. For wine and beer:
        1. Ten and three-quarters of one percent (10.75%) for wholesale sales or sales at wholesale made on or after July 1, 2015, and before June 1, 2016;
        2. Ten and one-half of one percent (10.5%) for wholesale sales or sales at wholesale made on or after June 1, 2016, and before June 1, 2017;
        3. Ten and one-quarter of one percent (10.25%) for wholesale sales or sales at wholesale made on or after June 1, 2017, and before June 1, 2018; and
        4. Ten percent (10%) for wholesale sales or sales at wholesale made on or after June 1, 2018.
    4. On and after March 12, 2021, the following rates shall apply for direct shipper sales:
      1. For distilled spirits shipments, eleven percent (11%) for wholesale sales or sales at wholesale; and
      2. For wine and beer shipments, ten percent (10%) for wholesale sales or sales at wholesale.
    5. For direct shipper sales or sales made pursuant to Section 6 of this Act, if a wholesale price is not readily available, the direct shipper licensee or distillery shall calculate the wholesale price to be seventy percent (70%) of the retail price of the alcoholic beverages.
  1. Wholesalers of distilled spirits and wine, distributors of malt beverages, microbreweries, distillers, and direct shipper licensees shall pay and report the tax levied by this section on or before the twentieth day of the calendar month next succeeding the month in which possession or title of the distilled spirits, wine, or malt beverages is transferred from the wholesaler or distributor to retailers, or by microbreweries, distillers, or direct shipper licensees to consumers in this state, in accordance with rules and regulations of the Department of Revenue designed reasonably to protect the revenues of the Commonwealth.
  2. Gross receipts from sales at wholesale or wholesale sales shall not include the following sales:
    1. Sales made between wholesalers or between distributors;
    2. Sales from the first fifty thousand (50,000) gallons of wine produced by a small farm winery in a calendar year made by:
      1. The small farm winery; or
      2. A wholesaler of that wine produced by the small farm winery; and
    3. Sales made between a direct shipper licensee and a consumer located outside of Kentucky.

History. Enact. Acts 1982, ch. 390, § 4, effective June 1, 1982; 1994, ch. 451, § 4, effective July 15, 1994; 2000, ch. 167, § 3, effective July 14, 2000; 2005, ch. 85, § 660, effective June 20, 2005; ch. 168, § 74, effective June 20, 2005; 2006, ch. 179, § 11, effective January 1, 2007; 2014, ch. 102, § 18, effective July 15, 2014; 2016 ch. 80, § 20, effective July 15, 2016; 2018 ch. 16, § 3, effective July 14, 2018; 2019 ch. 151, § 77, effective June 27, 2019; 2021 ch. 13, § 13, effective March 12, 2021; 2022 ch. 39, § 11, effective March 24, 2022.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

243.886. Reimbursement for collecting and reporting — Microbrewery or distiller that pays wholesale sales tax not entitled to reimbursement.

To reimburse himself or herself for the cost of collecting and reporting the tax, each person required to pay and report the tax levied by KRS 243.884 , other than a microbrewery or a distiller, shall deduct on each report one percent (1%) of the tax due, provided the amount due is not delinquent at the time of payment. A microbrewery or distiller that reports and pays the wholesale sales tax levied by KRS 243.884 , in accordance with KRS 243.0305 or 243.157 as applicable, shall not be entitled to deduct one percent (1%) of the tax due.

History. Enact. Acts 1982, ch. 390, § 7, effective June 1, 1982; 2018 ch. 16, § 4, effective July 14, 2018; 2021 ch. 13, § 18, effective March 12, 2021.

Legislative Research Commission Note.

(11/5/90). The text of this section originated in Senate Committee Substitute No. 2 for 1982 House Bill 571, see 1982 Senate Journal 2026. In this substitute, Section 4 had two subsections. Floor Amendment No. 4 to this substitute deleted subsection (1) of Section 4 and removed (2) from the remainder of the text. See 1982 Senate Journal 2207-08. The Senate adopted these two items in its treatment of House Bill 571, see 1982 Senate Journal 2212, and the Free Conference Committee Report on House Bill 571 subsequently also incorporated this language, see 1982 Senate Journal 2415, 1982 House Journal 3258-3259. It was in this form that House Bill 571 passed both Houses. See 1982 Senate Journal 2425, 1982 House Journal 3259. For this reason, the words “subsection (2) of” that appeared before KRS 243.884 were retained in this section by a manifest clerical error in failing to make the necessary comforming amendment. These words have been deleted by the Reviser of Statutes pursuant to KRS 7.136 .

243.888. Floor stocks. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 390, § 9, effective June 1, 1982) was repealed by Acts 1984, ch. 111, § 199, effective July 13, 1984.

243.890. Receipts to be used for general fund purposes.

Except as provided in KRS 211.285 , receipts derived from taxes assessed and collected under the provisions of this chapter shall be appropriated for general fund purposes.

History. Enact. Acts 1982, ch. 390, § 10, effective June 1, 1982; 1998, ch. 225, § 2, effective July 15, 1998.

243.892. Sales to be made only to licensed retailer — Discounts prohibited. [Repealed.]

HISTORY: Enact. Acts 1982, ch. 390, § 12, effective June 1, 1982; repealed by 2016 ch. 80, § 29, effective July 15, 2016.

Miscellaneous Provisions

243.895. Warning of dangers of drinking alcoholic beverages during pregnancy to be posted.

All licensed retailers of alcoholic beverages, except holders of special temporary licenses, shall post in a prominent place easily seen by patrons a printed sign at least eight and one-half (8-1/2) inches by eleven (11) inches in size, with gender-neutral language supplied by the Cabinet for Health and Family Services, which shall warn that drinking alcoholic beverages prior to conception or during pregnancy can cause birth defects.

HISTORY: Enact. Acts 1992, ch. 442, § 1, effective July 14, 1992; 1998, ch. 426, § 513, effective July 15, 1998; 2005, ch. 99, § 566, effective June 20, 2005; 2010, ch. 24, § 584, effective July 15, 2010; 2017 ch. 62, § 88, effective June 29, 2017.

243.897. Prohibition against purchase of metal beer keg except from brewer or representative.

No recycler, scrap metal dealer, or scrap yard operator may purchase any metal beer keg, whether damaged or undamaged, except from the brewer or its authorized representative, if:

  1. The keg is clearly marked as the property of a brewery manufacturer; or
  2. The keg’s identification markings have been made illegible.

History. Enact. Acts 2008, ch. 83, § 10, effective July 15, 2008.

Penalties

243.990. Penalties.

  1. Any person who, by himself or herself or acting through another, directly or indirectly, violates any of the provisions of KRS 243.020 to 243.670 , for which no other penalty is provided, shall, for the first offense, be guilty of a Class B misdemeanor; and for the second and each subsequent violation, he or she shall be guilty of a Class A misdemeanor. The penalties provided for in this subsection shall be in addition to the revocation of the offender’s license.
  2. Any person who, by himself or herself or through another, directly or indirectly, violates subsection (1) of KRS 243.020 shall, for the first offense, be guilty of a Class B misdemeanor; for the second offense, he or she shall be guilty of a Class A misdemeanor; and for the third and each subsequent offense, he or she shall be guilty of a Class D felony.
  3. Any person who violates subsection (3) of KRS 243.020 shall be guilty of a violation.
  4. Any person who violates KRS 243.620 with respect to a license issued under KRS 243.050 or 243.082 shall be guilty of a violation.
  5. Any person who violates any of the provisions of KRS 243.720 or 243.730 or any regulation issued thereunder shall be guilty of a Class A misdemeanor.
  6. Any person who violates any provision of KRS 243.710 to 243.850 shall be subject to the uniform civil penalties imposed pursuant to KRS 131.180 .
  7. In every case, any tax imposed by KRS 243.710 to 243.720 which is not paid on or before the due date shall bear interest at the tax interest rate as defined in KRS 131.010(6) from the due date until the date of payment.
  8. Any person who, by himself or herself or acting through another, directly or indirectly, violates KRS 243.502(1) shall, for the first offense, be guilty of a Class B misdemeanor, and for the second and each subsequent violation, he or she shall be guilty of a Class A misdemeanor. The penalties provided for in this subsection shall be in addition to the suspension or revocation of the offender’s license.
  9. Any person who violates the provisions of KRS 243.897 shall be subject to a fine not to exceed one thousand dollars ($1,000).

History. 2554b-150, 2554b-153, 2554b-195, 2554b-196, 2554b-219, 4214a-21, 4214a-22, 4281c-22, 4281c-27: amend. Acts 1942, ch. 198; 1944, ch. 154, § 24; 1944, ch. 173, § 14; 1960, ch. 186, Art. V, § 3; 1978, ch. 233, § 24, effective June 17, 1978; 1982, ch. 452, § 30, effective July 1, 1982; 1992, ch. 403, § 24, effective July 14, 1992; 1992, ch. 463, § 31, effective July 14, 1992; 2008, ch. 28, § 3, effective July 15, 2008; 2008, ch. 83, § 11, effective July 15, 2008; 2013, ch. 121, § 80, effective June 25, 2013.

Compiler’s Notes.

Section 26 of Acts 1992, ch. 403, provides:

“The provisions of this Act shall become effective for all tax returns or reports due on or after August 1, 1992 and all taxes assessed by the cabinet on or after December 31, 1992.”

Legislative Research Commission Note.

(9/1/92) Pursuant to KRS 7.136 , the Reviser of Statutes has changed an incorrect reference to KRS 243.030 contained in subsection (2) of this statute back to KRS 243.020 . Apparently, a typographical error occurred in this reference in 1978 Ky. Acts ch. 233, sec. 24; however, the text as originally found in 1942 Ky. Acts ch. 208, sec. 1 (KRS Ch. 243 p. 24) referenced KRS 243.020 , and subsequent amendments of the statute have not changed that reference. Cf. KRS 446.270 and 446.280 .

NOTES TO DECISIONS

1.Period for Payment.

Since distiller might not be able to determine exact amount of liquor to be manufactured in plant during certain period of operation, legislature intended by this section to provide for “overruns,” by giving distiller fifteen days to pay the additional production tax thereon. Commonwealth ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125 , 152 S.W.2d 962, 1939 Ky. LEXIS 48 ( Ky. 1939 ).

Cited:

Roberts v. Commonwealth, 284 Ky. 31 , 143 S.W.2d 856, 1940 Ky. LEXIS 439 ( Ky. 1940 ); Stewart v. Sampson, 285 Ky. 447 , 148 S.W.2d 278, 1941 Ky. LEXIS 398 (1941); Commonwealth v. Kiddy, 292 Ky. 34 , 165 S.W.2d 969, 1942 Ky. LEXIS 27 ( Ky. 1942 ); Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ); Henry v. Commonwealth, 312 Ky. 491 , 228 S.W.2d 32, 1950 Ky. LEXIS 684 ( Ky. 1950 ); Jack Walker Trucking Service, Inc. v. Strong, 488 S.W.2d 689, 1972 Ky. LEXIS 50 ( Ky. 1972 ).

Research References and Practice Aids

Cross-References.

Designation of offenses; penalties, see KRS 532.020 .

CHAPTER 244 Alcoholic Beverages — Prohibitions, Restrictions and Regulations

244.010. Definitions.

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

History. 2554b-98.

NOTES TO DECISIONS

Cited:

Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ); Alcoholic Beverage Control Board v. Hunter, 331 S.W.2d 280, 1960 Ky. LEXIS 119 ( Ky. 1960 ).

Opinions of Attorney General.

The parking lot of a single unit licensed alcoholic beverage business, if under the control of the licensee, is a part of “the land . . . . . upon which” the business is “operated or carried on.” 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 .

The definitions contained in KRS 241.010 are incorporated by reference by this section, for the purposes of this chapter. OAG 91-51 .

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 — Local option, KRS ch. 242.

General assembly not to pass local or private local option laws, Const., § 59 (27).

Alcoholic Beverages Generally

244.020. Drinking or being under influence of alcoholic beverages in public place prohibited. [Repealed.]

Compiler’s Notes.

This section (2554b-152: amend. Acts 1980, ch. 254, § 9; 1982, ch. 312, § 9) was repealed by Acts 1986, ch. 336, § 11, effective July 1, 1986. Section 12 of Acts 1986, ch. 336 also specifically repealed Acts 1980, ch. 254 and Acts 1982, ch. 312 which amended this section.

244.030. Soliciting orders — When prohibited.

  1. No licensee under KRS Chapters 241 to 244 shall employ any canvasser or solicitor for the purpose of receiving an order from a consumer for any alcoholic beverages at the residence or place of business of the consumer, nor shall any such licensee receive or accept any order that has been solicited or received at the residence or place of business of the consumer.
  2. Subsection (1) of this section shall not prohibit the solicitation by a distiller, rectifier, brewer, or winery of an order from any wholesaler or distributor at the licensed premises of the wholesaler or distributor nor the solicitation by a wholesaler or distributor of an order from any retailer at the licensed premises.

History. 2554b-159: amend. 2013, ch. 121, § 82, effective June 25, 2013; 2013, ch. 121, § 82, effective June 25, 2013.

NOTES TO DECISIONS

Cited:

Oertel Brewing Co. v. Portwood, 320 S.W.2d 317, 1959 Ky. LEXIS 234 ( Ky. 1959 ).

244.040. Sales for cash only.

  1. A brewer or distributor shall not sell alcoholic beverages to any person in this state for any consideration except for cash paid at or before the time of delivery.

    For purposes of this section, “cash” includes the sale of malt beverages by electronic transfers if the following conditions are met:

    1. The use of electronic transfers shall be voluntary and shall be agreed to by the affected brewer, distributor, and retailer;
    2. The brewer shall not pay or credit back in any way to the distributor any share of the cost that is attributable to the electronic transfer;
    3. The distributor shall not pay or credit back in any way to the retailer any share of the cost that is attributable to the electronic fund transfer;
    4. The transfer of funds shall be initiated by the brewer or the distributor;
    5. The distributor may debit the retailer’s bank account for the exact amount due based on the amount of alcoholic beverages delivered;
    6. Electronic fund transfers that are rejected or denied at the time of sale for any reason shall be treated in the same manner as checks drawn on insufficient funds; and
    7. Each participating retail licensee and each distributor maintain accurate records of all electronic fund transfers in accordance with department statutes and administrative regulations.
  2. A brewer or distributor shall not furnish or deliver any returnable bottled malt beverage without collecting a minimum container charge or deposit of sixty cents ($0.60) per case of twenty-four (24) twelve-ounce bottles or its equivalent in the same manner that the price of the malt beverage is collected.
  3. This section shall not prohibit a licensee from crediting to a purchaser the actual prices charged for packages or containers returned by the original purchaser as a credit on any sale, or from refunding to any purchaser the amount paid by the purchaser for containers or as a deposit on containers when the title is retained by the vendor, if the containers or packages have been returned to the brewer or distributor.
  4. No right of action shall exist to collect any claim for credit extended contrary to this section.
  5. This section shall not apply to sales by wholesalers or distributors to licensees that are private clubs or voluntary associations.

History. 2554b-156: amend. Acts 1978, ch. 194, § 28, effective June 17, 1978; 1998, ch. 522, § 16, effective July 15, 1998; 2010, ch. 24, § 585, effective July 15, 2010.

NOTES TO DECISIONS

1.Application.

This section applies only to brewers, wholesalers or distributors and did not apply to retailers of malt beverages, therefore alcoholic beverage control board could not by regulations make it applicable to a retailer of malt beverages. Roppel v. Shearer, 321 S.W.2d 36, 1959 Ky. LEXIS 254 ( Ky. 1959 ).

2.Sales on Credit.

Where contract by Ohio brewery for sale of beer on credit to Kentucky distributor was made in Ohio, and was valid under the law of that state, action in Kentucky by brewer to recover purchase price was not barred by subsection (4) of this section, even though contract was in violation of subsection (1) of this section. Hudepohl Brewing Co. v. Faulkner, 308 Ky. 846 , 215 S.W.2d 999, 1948 Ky. LEXIS 1062 ( Ky. 1948 ).

Where sale of whiskey on credit was made by a wholesale dealer to retail dealer, in violation of this section, no recovery may be had on an action brought by seller against the retail dealer. Gross v. Johnson, 256 S.W.2d 489, 1953 Ky. LEXIS 740 ( Ky. 1953 ).

This section protects the brewer or wholesaler from the need of selling beer on credit in order to get or keep a customer, and refuses the assistance of society through the agency of its courts in affecting collection of such claims if the seller violates the statute by selling on credit. Sterling Brewers, Inc. v. Williamson, 269 S.W.2d 249, 1954 Ky. LEXIS 984 ( Ky. 1954 ).

This section is limited only to extending credit, with the result that no buyer of alcoholic beverages is affected in any way by the terms and conditions of this section. Alcoholic Beverage Control Board v. Hunter, 331 S.W.2d 280, 1960 Ky. LEXIS 119 ( Ky. 1960 ).

3.Cash on Arrival.

“Cash on arrival” is not a credit transaction; the facts that the buyer failed to remit cash on delivery and that the seller accepted checks later in an attempt to collect the debt do not transform the transaction into “credit.” Sterling Brewers, Inc. v. Williamson, 269 S.W.2d 249, 1954 Ky. LEXIS 984 ( Ky. 1954 ).

Cited:

Alcoholic Beverage Control Board v. Haeseley, 331 S.W.2d 284, 1960 Ky. LEXIS 120 ( 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.

A restaurant practice whereby a customer is allowed to sign for food and alcoholic beverages and is later billed for these purchases violates this section. OAG 75-145 .

Only those establishments holding a “private club” license or a hotel holding a retail drink liquor license may sell on reasonable credit to its members or registered guests. OAG 75-145 .

The prohibition against credit sales applies only to distilled spirits and wine and not to beer or malt beverages. OAG 75-145 .

Sales of malt beverages may be sold on credit terms; such sale must be for full monetary consideration, but need not be for cash. OAG 81-182 .

Research References and Practice Aids

ALR

Construction and effect of liquor regulation forbidding or restricting sales on credit or other than for cash. 17 A.L.R.3d 396.

Free food or drink, construction of measure prohibiting retail alcoholic beverage seller from furnishing. 66 A.L.R.2d 758.

244.050. “Treating” prohibited — Exceptions.

A retail licensee shall not sell, give away, or deliver any alcoholic beverage at retail in any quantity for less than paid or current wholesale cost, except upon written request and approval by the administrators, pursuant to a bona fide “close out” sale, or as provided by KRS 243.0305 , 243.0307 , 243.155 , and 243.157 .

HISTORY: 2554b-183: amend. Acts 1976, ch. 381, § 5; 1998, ch. 121, § 26, effective July 15, 1998; 2000, ch. 182, § 2, effective July 14, 2000; 2003, ch. 15, § 1, effective June 24, 2003; 2004, ch. 20, § 11, effective July 13, 2004; 2006, ch. 179, § 12, effective January 1, 2007; 2010, ch. 24, § 586, effective July 15, 2010; 2013, ch. 121, § 83, effective June 25, 2013; 2016 ch. 80, § 21, effective July 15, 2016; 2017 ch. 62, § 89, effective June 29, 2017.

NOTES TO DECISIONS

1.Credit Sales.

Legislature in enacting this section evidently wanted to prevent treating; and as this section makes no mention that sales shall be for cash by the retailer, but only requires that the full monetary consideration shall be paid to the retailer, alcoholic beverage control board by regulation could not prohibit sale of malt beverages for credit. Roppel v. Shearer, 321 S.W.2d 36, 1959 Ky. LEXIS 254 ( Ky. 1959 ).

2.Promotional Activities.

Although KRS 243.130 specifically prohibited promotional activities for the sale of alcoholic beverages on the part of distillers, rectifiers and vintners and this section 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:

George v. Commonwealth, 311 Ky. 234 , 223 S.W.2d 906, 1949 Ky. LEXIS 1112 ( Ky. 1949 ); Kilburn v. Colwell, 396 S.W.2d 803, 1965 Ky. LEXIS 134 ( Ky. 1965 ).

Opinions of Attorney General.

Sale below “cost,” as defined in KRS 365.030(3), is not the equivalent of giving away alcoholic beverages for less than a “full monetary consideration” as prohibited by KRS 244.050 ; so long as the retail sales price to the customer matches or exceeds the replacement price on the date of sale (i.e., fair market value) or his original purchase price, whichever is lower, the retailer receives “full monetary consideration.” Had the legislature intended that “full monetary consideration” include the retailer’s costs, it would have explicitly provided for such requirement in this section, as it did in KRS Ch. 365. OAG 82-479 .

Research References and Practice Aids

ALR

Validity and construction of measure prohibiting retail alcoholic beverage seller from furnishing free food and drink. 66 A.L.R.2d 758.

244.060. Licensee to purchase from and sell only to persons authorized to sell or purchase.

  1. No licensee shall purchase or agree to purchase any alcoholic beverages from any person within or without this state, who is not licensed to sell the beverages to the particular purchaser at the time of the agreement to sell, nor give any order for any alcoholic beverages to any person who is not a holder of a special agent’s or solicitor’s license if this license is required.
  2. No licensee shall sell or agree to sell any alcoholic beverage to any person within or without this state who is not legally authorized to buy and receive the beverages at the time of the agreement to sell, nor secure any order for the sale of any alcoholic beverages through any person who is not the holder of a special agent’s or solicitor’s license.

HISTORY: 2554b-157; 2017 ch. 62, § 90, effective June 29, 2017.

NOTES TO DECISIONS

1.Specific Performance.

Buyer under contract for sale of retail liquor store could not obtain specific performance of contract where he did not possess necessary license to enable him to operate the store. Campbell v. Sties, 300 Ky. 745 , 190 S.W.2d 347, 1945 Ky. LEXIS 645 ( Ky. 1945 ).

244.070. Sale to person not providing for his family prohibited. [Repealed]

History. 2554b-162; 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-162) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

244.080. Retail sales to certain persons prohibited — Affirmative defense in prosecution for selling to a minor.

A retail licensee, or the licensee’s agent, servant, or employee, shall not sell, give away, or deliver any alcoholic beverages, or procure or permit any alcoholic beverages to be sold, given away, possessed by, or delivered to:

  1. A minor, except that in any prosecution for selling alcoholic beverages to a minor it shall be an affirmative defense that the sale was induced by the use of false, fraudulent, or altered identification papers or other documents and that the appearance and character of the purchaser were such that the purchaser’s age could not have been ascertained by any other means and that the purchaser’s appearance and character indicated strongly that the purchaser was of legal age to purchase alcoholic beverages. This evidence may be introduced either in mitigation of the charge or as a defense to the charge itself; or
  2. A person who appears to a reasonable person to be actually or apparently under the influence of alcoholic beverages, controlled substances, other intoxicating substances, or any of these substances in combination, to the degree that the person may endanger any person or property, or unreasonably annoy persons in the vicinity.

HISTORY: 2554b-181: amend. Acts 1972, ch. 286, § 1; 1998, ch. 522, § 17, effective July 15, 1998; 2009, ch. 66, § 1, effective June 25, 2009; 2017 ch. 62, § 91, effective June 29, 2017.

NOTES TO DECISIONS

1.Applicability.

The prohibitions contained in the statute were intended to apply to employees of retail licensees, as well as the licensees themselves. Commonwealth v. White, 3 S.W.3d 353, 1999 Ky. LEXIS 134 ( Ky. 1999 ).

Where KRS 244.990(1) provides the penalties available for violations of any provision of KRS Chapter 244, including KRS 244.080 , and specifically calls for a criminal prosecution of a Class B misdemeanor for a first offense, KRS 244.080 was broad enough to include the employees of licensees. Ky. Licensed Bev. Ass'n v. Louisville-Jefferson County Metro Gov't, 127 S.W.3d 647, 2004 Ky. LEXIS 39 ( Ky. 2004 ).

2.Liability of Vendor.

Where complaint in action for wrongful death alleged that vendor knew when he sold the liquor to the intoxicated person that such person intended to drink all of it without ceasing and that the vendee could not be safely trusted with it, the vendor could reasonably foresee what might result, and the defense of contributory negligence was not available because the act of the vendor was alleged to be intentionally wrongful. Nally v. Blandford, 291 S.W.2d 832, 1956 Ky. LEXIS 405 ( Ky. 1956 ).

Where the complaint seeking damages resulting from an automobile accident alleged a malicious sale of intoxicating beverages to minors whose ages and whose physical condition and the degree of intoxication, if any, were not stated and the conditions under which the sale was made were not revealed, the complaint, for procedural purposes, stated a sufficient claim upon which relief could be granted. Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

There may be circumstances under which a licensee who sells alcoholic beverages may be held responsible in damages proximately resulting from the violation of the statute. Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

Ordinarily a vendor of intoxicating liquors is not at common law answerable to a third person for injury or damages sustained by the latter as a result of the intoxication. Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

There is no civil cause of action against a retail alcohol beverage seller based upon a sale to a person between the ages of 18 and 21 who subsequently injures himself due to his intoxication. Dubord v. GMRI, Inc., 52 F. Supp. 2d 779, 1999 U.S. Dist. LEXIS 10332 (W.D. Ky. 1999 ), aff'd, 215 F.3d 1325, 2000 U.S. App. LEXIS 11348 (6th Cir. Ky. 2000 ).

3.Sale to Minors.

Since the crime of selling to a minor is a malum prohibitum offense and intent and knowledge are neither elements, in absence of expressed legislative requirement, it is no defense that the vendor in good faith believed the infant purchaser was an adult. Duncan v. Commonwealth, 289 Ky. 231 , 158 S.W.2d 396, 1942 Ky. LEXIS 521 ( Ky. 1942 ).

Ordinary person was competent to testify from personal observation and appearances that in his opinion persons to whom he saw liquor sold were minors, and other persons to whom he saw liquor sold were intoxicated. Howard v. Kentucky Alcoholic Beverage Control Board, 294 Ky. 429 , 172 S.W.2d 46, 1943 Ky. LEXIS 472 ( Ky. 1943 ).

4.Evidence.

Evidence that purchaser had been in court several times for being drunk or even evidence of a conviction for drunkenness are not admissible as evidence. Sowder v. Commonwealth, 261 Ky. 610 , 88 S.W.2d 274, 1935 Ky. LEXIS 693 ( Ky. 1935 ) (decided under prior law).

Opinions or conclusions of witnesses as to whether accused had the habit of getting drunk are inadmissible. Sowder v. Commonwealth, 261 Ky. 610 , 88 S.W.2d 274, 1935 Ky. LEXIS 693 ( Ky. 1935 ) (decided under prior law).

In a hearing before the alcoholic beverage control board on charges that licensee had permitted disorderly conduct on the licensed premises, the board should have been granted some latitude in evaluating the evidence, but this did not mean that the elementary and fundamental principles of a judicial inquiry should not have been observed. Shearer v. Bulleit, 257 S.W.2d 903, 1953 Ky. LEXIS 811 ( Ky. 1953 ).

It was not foreseeable that an intoxicated bar patron would shoot another customer as a result of the bar’s act of continuing to sell him liquor, such as would render the bar liable to the victim under the statute. Isaacs v. Smith, 5 S.W.3d 500, 1999 Ky. LEXIS 83 ( Ky. 1999 ).

5.Conflict with Federal Law.

KRS 244.380 (repealed), 244.390 (repealed), 244.400 (repealed), 244.410 (repealed), 244.470 (repealed) and this section, provide for a system of resale pricing that conflicts with the Sherman Antitrust Act (15 USCS § 1 et seq.) as that act has come to be construed by the United States Supreme Court, but do not violate Ky. Const., § 1 or 2. Alcoholic Beverage Control Bd. v. Taylor Drug Stores, Inc., 635 S.W.2d 319, 1982 Ky. LEXIS 269 ( Ky. 1982 ).

6.Habitual Drunkard.

It is not necessary that the accused know the purchaser to be an habitual drunkard. Arnett v. Commonwealth, 261 Ky. 607 , 88 S.W.2d 276, 1935 Ky. LEXIS 694 ( Ky. 1935 ); Sowder v. Commonwealth, 261 Ky. 610 , 88 S.W.2d 274, 1935 Ky. LEXIS 693 ( Ky. 1935 ) (decided under prior law).

Cited:

Patton v. Commonwealth, 273 Ky. 307 , 116 S.W.2d 652, 1938 Ky. LEXIS 637 ( Ky. 1938 ); Barker v. State Alcoholic Beverage Control Board, 301 Ky. 591 , 192 S.W.2d 726, 1946 Ky. LEXIS 528 ( Ky. 1946 ); Baker v. Caudill, 266 S.W.2d 93, 1954 Ky. LEXIS 776 ( Ky. 1954 ); Alcoholic Beverage Control Board v. Baker, 287 S.W.2d 605, 1956 Ky. LEXIS 472 ( Ky. 1956 ); Gross v. Commonwealth, 288 S.W.2d 353, 1956 Ky. LEXIS 259 ( Ky. 1956 ); Jacobs v. Alcoholic Beverage Control Board, 299 S.W.2d 613, 1957 Ky. LEXIS 410 ( Ky. 1957 ); Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 1987 Ky. LEXIS 246 ( Ky. 1987 ).

Opinions of Attorney General.

The statute forbids a licensee to “procure or permit” a third party on the licensed premises to sell, give or deliver alcoholic beverages to a minor, regardless of where the beverages were obtained. OAG 64-281 .

A licensee permits alcoholic beverages “to be sold, given away or delivered” when he has actual knowledge that such is being or will be done or when the circumstances are such that as a reasonably prudent man he should have had such knowledge. OAG 64-281 .

That portion of a city ordinance which imposed a lesser punishment for the sale of alcoholic beverages to minors than the state statute on the same subject was unconstitutional. OAG 67-273 .

The legislative intent of this section is obviously to prohibit retail licensees as well as their employees working under their direct supervision and control from selling alcoholic beverages to minors; the statute is sufficiently broad to include the employees acting in their scope of employment as well as the retail licensees themselves. OAG 91-51 .

This section appears to be directed more toward retail businesses, while KRS 530.070 appears to be directed toward private persons acting in their private capacities. OAG 91-51 .

This section prohibits a person acting as an employee of a retail licensee from selling alcoholic beverages to a person under twenty-one years of age. OAG 91-51 .

Where an employee of a retail licensee sells alcoholic beverages to a minor the retail licensee is held to a strict liability standard for the direct illegal acts of his employee. Although the offense might be directly committed by the employee, the retail business is held accountable. For this reason, both the retail licensee and the employee should each be charged with the same offense. OAG 91-51 .

Research References and Practice Aids

Cross-References.

Unlawful transactions with minors, Penal Code, KRS 530.070 .

Northern Kentucky Law Review.

Comment, Social Host Liability for Furnishing Liquor — Finding a Basis for Recovery in Kentucky, 3 N. Ky. L. Rev. 229 (1976).

Comments, The Evolution of Dram Shop Law: Is Kentucky Keeping Up with the Nation?, 15 N. Ky. L. Rev. 539 (1988).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.39.

Petrilli, Kentucky Family Law, Minors, § 30.1.

ALR

Criminal offense of selling liquor to a minor or permitting him to stay on licensed premises as affected by ignorance or mistake regarding his age. 12 A.L.R.3d 991.

Serving liquor to minor in home as unlawful sale or gift. 14 A.L.R.3d 1186.

244.083. Licensee to display notice as to sale to minors.

Every retail licensee shall display at all times in a prominent place a printed card at least eight (8) inches by eleven (11) inches in size which shall show, in thirty (30) point or larger type, substantially as follows:

Persons under the age of twenty-one (21) are subject to a fine up to one hundred dollars ($100) if they:

  1. Enter licensed premises to buy, or have served to them, alcoholic beverages.
  2. Possess, purchase or attempt to purchase, or get another to purchase alcoholic beverages.
  3. Misrepresent their age for the purpose of purchasing or obtaining alcoholic beverages.

History. Enact. Acts 1968, ch. 62, § 5.

Opinions of Attorney General.

Minors may enter premises that are licensed for the sale of alcoholic beverages for the purpose of dancing. OAG 69-701 .

In a town where teenage drinking is a problem, a police plan involving an 18-year-old “under cover” agent who would be a willing volunteer, whose appearance and character would indicate his true age, and whose parents would have given their permission, would enter an establishment with a liquor license, in which a plain clothes officer would be present as an observer, ask to buy a drink or package goods, would have no identification if asked, would give his correct age if asked, would take a breathalizer test both before and after entering the suspected business, and would say nothing to mislead the seller into thinking he had proper identification elsewhere, would not be subject to a valid defense of entrapment, nor would it subject either the 18-year-old agent or the observing police officer to prosecution under this section, KRS 244.085(2) or (3), since both officer and agent would be engaged in a legitimate police investigation. OAG 79-473 .

The intent of this section and KRS 244.085(2) is to discourage the purchase and possession of alcoholic beverages by minors for their personal consumption. OAG 79-473 .

244.085. Minors not to possess or purchase liquor nor to misrepresent age — Use of fraudulent identification — Prohibition against minors remaining on premises where alcoholic beverages sold.

  1. A person under twenty-one (21) years of age shall not enter any premises licensed for the sale of alcoholic beverages for the purpose of purchasing or receiving any alcoholic beverages.
  2. A person under twenty-one (21) years of age shall not possess for personal use or purchase or attempt to purchase or have another purchase for the person any alcoholic beverages. No person shall aid or assist any person under twenty-one (21) years of age in purchasing or being delivered or served any alcoholic beverages.
  3. A person under twenty-one (21) years of age shall not misrepresent the person’s age for the purpose of inducing any licensee, or the licensee’s agent, servant, or employee, to sell or serve any alcoholic beverages to the underage person.
  4. A person under twenty-one (21) years of age shall not use, or attempt to use any false, fraudulent, or altered identification card, paper, or any other document to purchase or attempt to purchase or otherwise obtain any alcoholic beverage.
  5. Except as provided in KRS 244.090 , a licensee, or the licensee’s agents, servants, or employees shall not permit any person under twenty-one (21) years of age to remain on any premises where alcoholic beverages are sold by the drink or consumed on the premises, unless:
    1. The usual and customary business of the licensee is a hotel, motel, restaurant, convention center, convention hotel complex, racetrack, simulcast facility, golf course, private club, park, fair, church, school, athletic complex, athletic arena, theater, small farm winery, distillery, brewery, winery, convenience store, grocery store, drug store, entertainment destination center, licensed APC premises, live music or other entertainment or public facility, or any other business type, as determined by the board through the promulgation of administrative regulations, whose operations allow it to adequately monitor and prevent alcohol sales to minors; or
    2. All alcoholic beverage inventory is kept in a separate, locked department at all times when minors are on the premises.
  6. Except as provided in subsection (5) of this section, a licensee or the licensee’s agent, servant, or employee shall not allow any person under the age of twenty-one (21) to remain on any premises that sells alcoholic beverages by the package unless the underage person is accompanied by a parent or guardian or the usual and customary business of the establishment is a convenience store, grocery store, drugstore, or similar establishment.
  7. Except as provided in subsection (5) of this section, a person under the age of twenty-one (21) shall not remain on any premises that sells alcoholic beverages by the package unless the person under the age of twenty-one (21) is accompanied by a parent or guardian or the usual and customary business of the establishment is a convenience store, grocery store, drugstore, or similar establishment.
  8. A violation of subsection (1), (2), (3), (4), or (7) of this section shall be deemed a status offense if committed by a person under the age of eighteen (18) and shall be under the jurisdiction of the juvenile session of the District Court or the family division of the Circuit Court, as appropriate.

History. Enact. Acts 1968, ch. 62, §§ 1 to 4; 1972, ch. 286, § 2; 1998, ch. 522, § 18, effective July 15, 1998; 2003, ch. 58, § 1, effective June 24, 2003; 2008, ch. 87, § 22, effective July 15, 2008; 2009, ch. 66, § 2, effective June 25, 2009; 2010, ch. 24, § 587, effective July 15, 2010; 2016 ch. 80, § 22, effective July 15, 2016; 2017 ch. 62, § 92, effective June 29, 2017; 2020 ch. 102, § 19, effective July 15, 2020.

Legislative Research Commission Notes.

(6/25/2009). The Reviser of Statutes has corrected a manifest clerical or typographical error in subsection (6)(d) of this statute under the authority of KRS 7.136(1)(h).

NOTES TO DECISIONS

Cited in:

Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

Notes to Unpublished Decisions

1.Negligence per se.

Unpublished decision: Neither a national social fraternity nor individual local chapter members were negligent per se under KRS 530.070 and KRS 244.085 in connection with the death of a college student by a drunk fraternity member because there was no evidence that the national fraternity knowingly induced, assisted, or caused the drunk member to possess alcohol, and none of the members of the fraternity gave the drunk member alcohol. Shaheen v. Yonts, 394 Fed. Appx. 224, 2010 FED App. 0581N, 2010 U.S. App. LEXIS 18461 (6th Cir. Ky. 2010 ).

Opinions of Attorney General.

In a town where teenage drinking is a problem, a police plan involving an 18-year-old “under cover” agent who would be a willing volunteer, whose appearance and character would indicate his true age, and whose parents would have given their permission, would enter an establishment with a liquor license, in which a plain clothes officer would be present as an observer, ask to buy a drink or package goods, would have no identification if asked, would give his correct age if asked, would take a breathalizer test both before and after entering the suspected business, and would say nothing to mislead the seller into thinking he had proper identification elsewhere, would not be subject to a valid defense of entrapment, nor would it subject either the 18-year-old agent or the observing police officer to prosecution under KRS 244.083 or subsection (2) or (3) of this section, since both officer and agent would be engaged in a legitimate police investigation. OAG 79-473 .

The intent of KRS 244.083 and subsection (2) of this section is to discourage the purchase and possession of alcoholic beverages by minors for their personal consumption. OAG 79-473 .

There is no language in this section which clearly indicates that a paramount state concern will not tolerate further or additional local action, and therefore a proposed ordinance banning possession of alcohol in city parks is probably not precluded by preemption. OAG 90-76 .

Research References and Practice Aids

Northern Kentucky Law Review.

Comment, Social Host Liability for Furnishing Liquor — Finding a Basis for Recovery in Kentucky, 3 N. Ky. L. Rev. 229 (1976).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, §§ 9.40 — 9.41A.

ALR

Criminal offense of selling liquor to a minor or permitting him to stay on licensed premises as affected by ignorance or mistake regarding his age. 12 A.L.R.3d 991.

Serving liquor to minor in home as unlawful sale or gift. 14 A.L.R.3d 1186.

244.087. Minor may stock, arrange displays, and sell malt beverages. [Repealed]

HISTORY: Enact. Acts 1974, ch. 389, § 1; 1998, ch. 522, § 19, effective July 15, 1998; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 389, § 1; 1998, ch. 522, § 19, effective July 15, 1998) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

244.090. Persons whom licensees may not employ — Partial exception.

  1. A person holding any license shall not knowingly employ in connection with the licensed business any person who:
    1. Has been convicted of any felony within the last two (2) years;
    2. Has been twice convicted of any misdemeanor or offense directly or indirectly attributable to the use of alcoholic beverages within the last two (2) years;
    3. Is under the age of twenty (20) years, unless the person is employed:
      1. In a bottling house or room of a licensed distiller, winery, brewer, or rectifier;
      2. In an office of a wholesaler or manufacturer that is maintained in a building separate from the warehouses or factory;
      3. At premises licensed only with a nonquota retail malt beverage package license, and the person employed to sell malt beverages is at least eighteen (18) years of age and under the supervision of a person twenty (20) years of age or older; or
      4. In any of the following establishments, if the employment is in a capacity that does not involve the sale or serving of alcoholic beverages:
        1. A restaurant that derives at least fifty percent (50%) of its food and alcoholic beverage sales from the sale of food for consumption on the licensed premises; or
        2. Any other establishment with alcoholic beverage sales not exceeding fifty percent (50%) of its gross sales; or
    4. Within two (2) years prior to the date of the person’s employment, has had any license issued under KRS Chapters 241 to 244 or under any other act or ordinance relating to the regulation of the manufacture, sale, or transportation of alcoholic beverages revoked for cause.
  2. The provisions of paragraphs (a) and (b) of subsection (1) of this section shall not apply if the employee’s duties do not involve the sale, service, delivery, or traffic in alcoholic beverages at the licensed premises.
  3. Violation of this section shall subject both employer and employee to penalties provided in this chapter and shall be cause for revocation of license.

HISTORY: 2554b-155: amend. Acts 1942, ch. 168, § 6, 15; 1974, ch. 389, § 2; 1978, ch. 194, § 19, effective June 17, 1978; 1988, ch. 208, § 1, effective July 15, 1988; 1994, ch. 467, § 1, effective July 15, 1994; 1998, ch. 522, § 20, effective July 15, 1998; 2000, ch. 435, § 15, effective July 14, 2000; 2012, ch. 125, § 7, effective July 12, 2012; 2013, ch. 121, § 84, effective June 25, 2013; 2017 ch. 62, § 93, effective June 29, 2017.

NOTES TO DECISIONS

1.Constitutionality.

The durational residency requirement of subdivision (1)(c) of this section which prohibits liquor licensees from employing nonresidents of Kentucky violates nonresidents’ rights under the equal protection clause by infringing their right to interstate travel. Costa v. Bluegrass Turf Service, Inc., 406 F. Supp. 1003, 1975 U.S. Dist. LEXIS 15126 (E.D. Ky. 1975 ) (decision prior to 1978 amendment).

2.Application.

Fingerprints and photographs of those serving alcohol would further compliance with this section prohibiting minors and convicted felons from serving alcohol in any retail establishment. Iacobucci v. Newport, 785 F.2d 1354, 1986 U.S. App. LEXIS 23156 (6th Cir. Ky.), rev'd, 479 U.S. 92, 107 S. Ct. 383, 93 L. Ed. 2d 334, 1986 U.S. LEXIS 20 (U.S. 1986).

3.Employment of Felon.

The operator of an establishment licensed to sell alcoholic beverages may not employ a person who has been convicted of any felony within two years prior to the date of employment or of any misdemeanor directly or indirectly attributable to the use of intoxicating liquors. Commonwealth, Alcoholic Beverage Control Board v. Lexington Johnnie's, Inc., 553 S.W.2d 694, 1977 Ky. LEXIS 478 ( Ky. 1977 ).

Cited:

Ni-Be, Inc. v. Moberly, 425 S.W.2d 567, 1968 Ky. LEXIS 425 ( Ky. 1968 ).

Opinions of Attorney General.

It is not unlawful for a female 20 years of age to be employed to serve beer at tables in an establishment holding restaurant and retail beer licenses. OAG 61-987 .

A minor 18 or 19 years of age may be lawfully employed in a business establishment holding a restaurant license and a license for the sale of alcoholic beverages for consumption on the premises, providing, however that the duties of such employee must be strictly confined to operation of the restaurant and no duties shall be performed by such an employee in connection with the handling, sale or serving of alcoholic beverages in such an establishment. OAG 62-172 .

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 said premises to make repairs, paint or for some other legal purpose. OAG 75-623 .

The citizenship requirement for employees of liquor licensees found in subsection (1) of this section is a discriminatory classification and, furthermore, the enforcement of the citizenship requirement against licensees would constitute an improper restriction upon the ability of aliens to engage in occupations that are otherwise lawful in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. OAG 78-264 .

The language used by the 1978 amendment to subdivision (1)(a) of this section, as well as the deletions made by such amendment, reasonably imply an intent to prohibit employment of persons convicted of any felony, misdemeanor or offense only if those offenses are directly or indirectly attributable to the use of intoxicating liquors. OAG 83-80 .

A felon convicted within the last two (2) years may be employed in a cafe under circumstances where his conviction was not directly or indirectly attributable to the use of intoxicating liquors. OAG 83-80 .

Research References and Practice Aids

Cross-References.

Minor under 18 may not be employed in connection with manufacture or sale of alcoholic beverages, KRS 339.230 .

244.100. Female may be employed only as waitress, cashier or usher. [Repealed.]

Compiler’s Notes.

This section (2554b-189) was repealed by Acts 1974, ch. 80, § 1.

244.105. Gift card for alcoholic beverages to be redeemed only by persons 21 and older.

No person under the age of twenty-one (21) may redeem a gift card or any portion of a gift card for the purchase of alcoholic beverages. A person holding a license under KRS 243.030 or 243.040 may redeem a gift card for the purchase of alcoholic beverages if the person presenting the card is twenty-one (21) years of age or older.

History. Enact. Acts 2006, ch. 28, § 2, effective July 12, 2006.

244.110. Retail premises to furnish clear view from sidewalk or entrance.

The entrance of any premises for which a quota retail package license or a quota retail drink license has been issued shall be of clear glass and permit an unobstructed view. The premises shall be erected and maintained to furnish a clear view of the premises from the sidewalk, or, if the premises are not on the street level, from the entrance. No partition, box, stall, screen, curtain, or other device shall obstruct the view or the general observation of persons, but partitions, subdivisions, or panels that are not higher than forty-eight (48) inches from the floor shall not be construed as obstructing the view or the general observation of persons.

HISTORY: 2554b-176: amend. Acts 1998, ch. 121, § 27, effective July 15, 1998; 2017 ch. 62, § 94, effective June 29, 2017.

NOTES TO DECISIONS

1.Obstructions.

This section does not contemplate the standing of people as an obstruction. Alcoholic Beverage Control Board v. Baker, 287 S.W.2d 605, 1956 Ky. LEXIS 472 ( Ky. 1956 ).

Opinions of Attorney General.

If alcoholic beverages are served in the back room, that back room must be in clear view from the front of the licensed premises. OAG 69-701 .

This section prohibits the darkening of a room in such a manner to keep anyone standing at the entrance of the licensed premises from observing the conduct of the patrons within the room. OAG 69-701 .

Research References and Practice Aids

Cross-References.

Premises that may not be licensed for sales at retail, KRS 243.220 , 243.230 , 243.280 .

244.120. Retail premises not to be disorderly — Acts constituting disorderly behavior.

  1. A retail licensee, a patron, or the licensee’s agents, servants, or employees shall not cause, suffer, or permit the licensed premises to be disorderly.
  2. Acts which constitute disorderly premises consist of causing, suffering, or permitting patrons, the licensee, or the licensee’s servants, agents, or employees to cause public inconvenience, annoyance, or alarm, or create a risk through:
    1. Engaging in fighting or in violent, tumultuous, or threatening behavior;
    2. Making unreasonable noise;
    3. Refusing to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard, or other emergency;
    4. Creating a hazardous or physically offensive condition by any act that serves no legitimate purpose;
    5. Creating a public nuisance;
    6. Engaging in criminal activity that would constitute a capital offense, felony, or misdemeanor; or
    7. Failing to maintain the minimum health, fire, safety, or sanitary standards established by the state or a local government, or by state administrative regulations, for the licensed premises.

History. 2554b-180, 3490-14: amend. Acts 1942, ch. 168, §§ 8, 17; repealed in part 1944, ch. 154, § 25 and ch. 173, § 15; 1978, ch. 194, § 20, effective June 17, 1978; 2013, ch. 121, § 85, effective June 25, 2013.

NOTES TO DECISIONS

1.Prostitution Solicitation.

Subdivision (2)(d) of this section can be construed to prohibit solicitation for prostitution; therefore, where hostesses employed at the social club were convicted of soliciting and offering to engage in sexual conduct, and the ABC Board found that the management knew or should have known of this activity, there was substantial evidence of a violation of this section. Lewis v. Ken-Pad, Inc., 716 S.W.2d 252, 1986 Ky. LEXIS 292 ( Ky. 1986 ).

2.Nude Activities.

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).

Cited:

Barker v. State Alcoholic Beverage Control Board, 301 Ky. 591 , 192 S.W.2d 726, 1946 Ky. LEXIS 528 ( Ky. 1946 ); Shearer v. Bulleit, 257 S.W.2d 903, 1953 Ky. LEXIS 811 ( Ky. 1953 ); Alcoholic Beverage Control Board v. Eversole, 275 S.W.2d 55, 1955 Ky. LEXIS 343 ( Ky. 1955 ); Alcoholic Beverage Control Board v. Baker, 287 S.W.2d 605, 1956 Ky. LEXIS 472 ( Ky. 1956 ); Jacobs v. Alcoholic Beverage Control Board, 299 S.W.2d 613, 1957 Ky. LEXIS 410 ( Ky. 1957 ); Ni-Be, Inc. v. Moberly, 425 S.W.2d 567, 1968 Ky. LEXIS 425 ( Ky. 1968 ); Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1990 U.S. App. LEXIS 4877 (6th Cir. 1990).

Opinions of Attorney General.

While a sheriff and his deputies have authority under KRS 231.130 to enter places of entertainment, which does not exclude special private clubs, city police officers have no authority to enter a licensed private club without a valid search or arrest warrant. OAG 74-153 .

244.125. Prohibition against possession of loaded firearm in room where alcoholic beverages are being sold by the drink.

  1. Except as provided in subsection (3) of this section, no person shall be in possession of a loaded, as defined in KRS 237.060 , firearm while actually within the room where alcoholic beverages are being sold by the drink of a building on premises licensed to sell distilled spirits and wine at retail by the drink for consumption on the licensed premises pursuant to KRS Chapter 243.
  2. This section shall not apply to the owner manager, or employee of licensed premises, law enforcement officers, or special local peace officers commissioned pursuant to KRS 61.360 .
  3. This section shall not apply to a bona fide restaurant open to the general public having dining facilities for not less than fifty (50) persons and which receives less than fifty percent (50%) of its annual food and beverage receipts from the dining facilities by the sale of alcohol.
  4. Nothing in this section shall be construed as permitting the carrying of a concealed deadly weapon in violation of KRS 527.020 .
  5. Any firearm possessed in violation of this section shall be subject to forfeiture and shall be disposed of pursuant to KRS 237.090 .

History. Enact. Acts 1994, ch. 396, § 6, effective July 15, 1994; 1996, ch. 119, § 2, effective October 1, 1996; 2012, ch. 125, § 8, effective July 12, 2012; 2014, ch. 22, § 21, effective July 15, 2014.

244.130. Advertising to comply with regulations of board — Types of advertising not prohibited.

  1. A licensee may advertise or cause to be advertised in any manner any product that the licensee is licensed to manufacture or sell unless prohibited by administrative regulations promulgated by the board.
  2. The board shall not prohibit the following forms of advertising:
    1. Advertising in newspapers, magazines, or periodicals having a general circulation;
    2. Promotional advertising on radio or television limited to no more than the name of the licensee and the products the licensee is permitted to manufacture or sell;
    3. Promotional advertising containing the names of establishments or products displayed on uniforms or equipment of sporting teams;
    4. Promotional advertising mailed or delivered to a consumer’s residence; or
    5. A distiller from providing visitors who are twenty-one (21) years of age or older, in conjunction with a distillery tour or an event conducted by a bona fide church or charitable organization, free:
      1. Consumer-branded nonalcoholic novelty items whose actual retail cost does not exceed seventy-five dollars ($75) per item; and
      2. Production by-products.

HISTORY: 2554b-164: amend. Acts 1978, ch. 194, § 21, effective June 17, 1978; 1984, ch. 58, § 2, effective July 13, 1984; 1998, ch. 121, § 28, effective July 15, 1998; 2007, ch. 59, § 1, effective June 26, 2007; 2016 ch. 80, § 23, effective July 15, 2016; 2017 ch. 62, § 95, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Portwood v. Falls City Brewing Co., 318 S.W.2d 535, 1958 Ky. LEXIS 140 ( Ky. 1958 ).

Opinions of Attorney General.

Although subsection (2) of this section permits duly licensed retailers to advertise in newspapers, magazines or periodicals that may be published in a “dry” county, subsection (1) of this section prohibits advertising by circulars, handbills and nonqualifying publications. OAG 73-296 .

A brewery cannot pursuant to 804 KAR 1:080 (1) place any advertisements in a college student directory published by a noneducational, private business concern and therefore the placing of advertisements by such an alcoholic beverage licensee in a college student directory would not come within the exception to the prohibition against advertising contained in subsection (2) of this section. OAG 76-625 .

The word, “patron,” as contained in subsection (2) of this section does not include a licensee that pays an advertising fee for inclusion in the printed materials. OAG 76-639 .

Where a large beer producer sponsored a raquetball tournament, and, in conjunction with it, wished to give each participant a T-shirt advertising its products, it could do so, under subdivision (2)(c), as a uniform of a “sporting team” since a “team” requires two or more people and raquetball can be an individual sport. OAG 79-170 .

Subdivision (2)(b) of this section does not limit or restrict advertising on radio and television but this section merely prohibits the board from banning the type of advertisement described in the subdivision; it does not prohibit the advertising of the price of alcoholic beverages. OAG 84-56 .

Research References and Practice Aids

ALR

Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price by liquor dealer. 89 A.L.R.2d 950.

Validity, construction, and effect of statutes, ordinances or regulations prohibiting or regulating advertising of intoxicating liquors. 20 A.L.R.4th 600.

244.140. Advertising brands by retailers prohibited. [Repealed.]

Compiler’s Notes.

This section (2554b-178) was repealed by Acts 1984, ch. 58, § 1, effective July 13, 1984.

244.150. Licensee to keep records.

Each licensee shall keep and maintain upon the licensed premises, or make readily available upon request of the department or the Department of Revenue, adequate books and records of all transactions involved in the manufacture, distribution, or sale of alcoholic beverages, in the manner required by administrative regulations of the department and the Department of Revenue.

History. 2554b-167, 4281c-21: amend. Acts 1944, ch. 154, § 26; 1998, ch. 121, § 29, effective July 15, 1998; 2005, ch. 85, § 661, effective June 20, 2005; 2010, ch. 24, § 588, effective July 15, 2010; 2017 ch. 62, § 96, effective June 29, 2017; 2020 ch. 80, § 13, effective July 15, 2020.

244.160. Presence of alcoholic beverage raises presumption of intention to sell.

Whenever any alcoholic beverage, in whatever quantity, is found on any business premises within this state, a prima facie presumption shall arise that the alcoholic beverage was upon the premises for the purpose of sale.

History. 2554b-166.

NOTES TO DECISIONS

Cited:

Pruitt v. Davidson, 334 S.W.2d 899, 1960 Ky. LEXIS 233 ( Ky. 1960 ).

244.165. Unlawful sale and shipment by out-of-state seller directly to a Kentucky consumer — Penalty.

  1. Except as provided in KRS 243.027 to 243.029 , it shall be unlawful for any person in the business of selling alcoholic beverages in another state or country to deliver or ship or cause to be delivered or shipped any alcoholic beverage directly to any Kentucky consumer who does not hold a valid wholesaler or distributor license issued by the Commonwealth.
  2. A licensed transporter or common carrier making deliveries or shipments pursuant to this section shall deliver or ship directly to consumers over twenty-one (21) years of age in packages clearly marked “Alcoholic Beverages, adult signature (21 years of age or over) required,” and shall request adult-signature-only service from the carrier. A licensed common carrier shall not knowingly ship unlicensed alcoholic beverage shipments into the Commonwealth. Deliveries or shipments of alcoholic beverages shall only be made into areas of the state in which alcoholic beverages may be lawfully sold. When the shipper requests adult-signature-only service, it shall be a violation for a common carrier not to inspect government-issued identification for proof of age. No properly licensed common carrier or any of its employees acting on behalf of a consignor shall be liable for a violation of any provision of KRS 242.250 , 242.260 , or 242.270 prohibiting the delivery or shipment of alcoholic beverages into areas of the state in which alcoholic beverages are not lawfully sold.
  3. Any person who violates subsection (1) of this section shall, for the first offense, be mailed a certified letter by the department ordering that person to cease and desist any deliveries or shipments of alcoholic beverages to Kentucky residents, and the department shall mail a copy of the certified letter to the licensing authority where the person is located. Any subsequent violations may result in further legal action.

History. Enact. Acts 1996, ch. 72, § 1, effective July 15, 1996; 2006, ch. 179, § 2, effective January 1, 2007; 2010, ch. 24, § 589, effective July 15, 2010; 2018 ch. 164, § 7, effective April 13, 2018; 2020 ch. 80, § 21, effective July 15, 2020.

NOTES TO DECISIONS

1.Constitutionality.

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 ).

The two-case quantity limitation written into KRS 244.165 does not burden interstate commerce. 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.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).

244.167. Unlawful acts relating to wholesalers or distributors.

  1. It is unlawful:
    1. For any distiller, rectifier, winery, brewer, or importer to solicit, accept, or fill any order for any alcoholic beverage from any wholesaler or distributor in the Commonwealth of Kentucky unless the supplier is the primary source of supply for the brand of alcoholic beverage sold or sought to be sold;
    2. For any wholesaler, distributor, or any other licensee in this Commonwealth to order, purchase, or receive any alcoholic beverage from any supplier unless the supplier is the primary source of supply for the brand ordered, purchased, or received;
    3. For a retailer to order, purchase, or receive any alcoholic beverage from any source other than any of the following:
      1. A wholesaler or distributor who has purchased the brand from the primary source of supply; or
      2. A wholesaler or distributor who is the designated representative of the primary source of supply in this Commonwealth and who has purchased alcoholic beverages from the designated representative of the primary source of supply within or without this Commonwealth; and
    4. For alcoholic beverages to be transported from a wholesaler’s or distributor’s warehouse within twenty-four (24) hours of the time they are unloaded.
  2. The Alcoholic Beverage Control Board may suspend for a period not to exceed one (1) year the license of any wholesaler, distributor, or retailer who violates the provisions of this section.
  3. Upon determination by the Alcoholic Beverage Control Board that a primary source of supply has violated the provisions of this section, no wholesaler, distributor, or retailer may accept any shipment of alcoholic beverages from the primary source of supply for a period of one (1) year.

HISTORY: Enact. Acts 1996, ch. 72, § 2, effective July 15, 1996; 2010, ch. 24, § 590, effective July 15, 2010; 2013, ch. 121, § 86, effective June 25, 2013; 2017 ch. 62, § 97, effective June 29, 2017.

244.170. Apparatus for unlawful manufacture prohibited.

No person shall buy, bargain, sell, loan, own, possess or knowingly transport any apparatus designed for the unlawful manufacture of alcoholic beverages.

History. 2554b-67.

NOTES TO DECISIONS

1.Reputation.

Former KRS 242.390 (now repealed), authorizing admission of evidence as to defendant’s reputation for engaging in illegal traffic in liquor, applies only to prosecutions under the local option law, and there is no similar statute governing prosecutions under the alcoholic beverage control law. Therefore, in prosecution for illegal possession of a still, under this section, it was prejudicial error to admit evidence as to defendant’s general reputation for selling liquor. Stephens v. Commonwealth, 303 Ky. 108 , 196 S.W.2d 968, 1946 Ky. LEXIS 792 ( Ky. 1946 ).

2.Evidence.

In a prosecution under this section, where the only evidence of guilt of defendants was that they were found in the vicinity of the still with a sack of jars or jugs, and another person admitted he was the sole owner of the still, the evidence was insufficient to sustain a conviction, since the evidence at most indicated that defendants were prospective customers of the still owner. Stephens v. Commonwealth, 303 Ky. 108 , 196 S.W.2d 968, 1946 Ky. LEXIS 792 ( Ky. 1946 ).

Opinions of Attorney General.

Winemaking kits may not be sold to anyone who does not hold a valid vintner’s license. OAG 72-572 .

244.180. Contraband defined.

The following property, even though found and seized in dry territory, is contraband:

  1. Any apparatus commonly used or intended to be used in the manufacture of alcoholic beverages and not registered in the office of a collector of internal revenue for the United States. The burden of proof that the apparatus is properly registered shall be on the defendant.
  2. Any material, equipment, implements, devices, firearms, and other property used or intended for use directly and immediately in connection with the unlawful traffic in alcoholic beverages.
  3. Any alcoholic beverages in the possession of anyone not entitled by law to possess them.
  4. Any alcoholic beverages in a container of a size prohibited by law or prohibited to the particular party in whose possession they are found.

  5. Any vehicle, watercraft, or aircraft in which any person is illegally possessing or transporting alcoholic beverages. “Illegally possessing” means and includes the holding of any alcoholic beverages unless lawfully acquired and intended for lawful uses.

HISTORY: 2554b-151: amend. Acts 1984, ch. 132, § 2, effective July 13, 1984; 2017 ch. 62, § 98, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, 1939 U.S. LEXIS 96 (1939); Mabe v. Commonwealth, 279 Ky. 432 , 130 S.W.2d 805, 1939 Ky. LEXIS 288 ( Ky. 1939 ); 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 ); Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ); Ritter v. Bruce, 239 S.W.2d 449, 1951 Ky. LEXIS 879 ( Ky. 1951 ); Pruitt v. Davidson, 334 S.W.2d 899, 1960 Ky. LEXIS 233 ( Ky. 1960 ); Jack Walker Trucking Service, Inc. v. Strong, 488 S.W.2d 689, 1972 Ky. LEXIS 50 ( Ky. 1972 ); 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 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 .

Any alcoholic beverage lawfully acquired and being the personal property of the individual purchasing same, regardless of any other acts of which he may be guilty, remain his property and should be returned to him unless the possession of the alcoholic beverages could be treated as contraband under this section. OAG 72-155 .

Research References and Practice Aids

Cross-References.

Forfeitures under Penal Code, KRS 500.090 .

244.190. Seizure of contraband — Destruction upon conviction of defendant.

Any peace officers, state administrators, and investigators of the department may, upon probable cause, without warrant seize contraband regardless of whether it is in dry territory or not, and hold it subject to the order of the court before which the owner or one in possession of the contraband has been charged with violation of KRS Chapter 242 or KRS 243.020 . Upon conviction of the defendant, the court shall enter an order for the destruction of all contraband property, except firearms or ammunition, included in KRS 244.180(1), (2), (3), and (4). Contraband firearms and ammunition shall be transferred to the Department of Kentucky State Police for disposition as provided in KRS 500.090 .

HISTORY: 2554b-151: amend. Acts 1984, ch. 132, § 3, effective July 13, 1984; 2002, ch. 368, § 12, effective July 15, 2002; 2007, ch. 85, § 273, effective June 26, 2007; 2010, ch. 24, § 591, effective July 15, 2010; 2017 ch. 62, § 99, effective June 29, 2017.

NOTES TO DECISIONS

1.Seizure.

Foreign liquor wholesaler, engaged in commerce in whiskey between two foreign states, and who was licensed by those states, but had no federal permit for such commerce, did not have such title or right of possession as would defeat confiscation by Kentucky of whiskey temporarily brought into Kentucky and upon which Kentucky tax was not paid. Commonwealth v. Lew Stark, Inc., 279 Ky. 667 , 132 S.W.2d 42, 1939 Ky. LEXIS 339 ( Ky. 1939 ).

Contraband whiskey seized by field representatives of the department of revenue must be held by them until the court determines its ownership. Reeves v. Bell, 285 Ky. 300 , 147 S.W.2d 711, 1941 Ky. LEXIS 378 ( Ky. 1941 ).

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 ).

2.Title.

Where conviction for illegal sale of spirituous liquors was reversed for error in instructions, so much of judgment as vested defendants’ automobile and trailer, alleged to have been used in illegal sales of liquor, in alcoholic beverage control board, was also reversed. Mabe v. Commonwealth, 279 Ky. 432 , 130 S.W.2d 805, 1939 Ky. LEXIS 288 ( Ky. 1939 ).

Where the driver was acquitted of the charge of illegally transporting alcoholic beverages and where the driver and his employer were in lawful possession in the sense that their possession did not violate the rights of any other claimant to the property, the driver and his employer had a right to maintain an action for recovery of the seized contraband against the field agent. Jack Walker Trucking Service, Inc. v. Strong, 488 S.W.2d 689, 1972 Ky. LEXIS 50 ( Ky. 1972 ).

3.Proceeds of Sale.

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 (KRS chs. 243 and 244), and which was declared contraband under subsection (7) (now subsection (6)) of KRS 244.180 , should have been paid to the state alcoholic beverage control board pursuant to this section. It was not proper to pay it to circuit court clerk pursuant to subsection (4) of KRS 242.360 , 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 ).

4.Jurisdiction.

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 ).

Cited:

Commonwealth v. Kiddy, 292 Ky. 34 , 165 S.W.2d 969, 1942 Ky. LEXIS 27 ( Ky. 1942 ); Ritter v. Bruce, 239 S.W.2d 449, 1951 Ky. LEXIS 879 ( Ky. 1951 ); United States v. Robinson, 763 F.2d 778, 1985 U.S. App. LEXIS 31315 (6th Cir. 1985).

Opinions of Attorney General.

The police judge must enter an order vesting title in the contraband in the alcoholic beverage control board and notify them so that they may sell the contraband. OAG 63-550 .

A peace officer has the right to seize without a warrant alcoholic beverages kept in violation of KRS 244.290 when he is lawfully on the premises and observes the distilled spirits and wine without any search. OAG 65-412 .

Where alcoholic beverages are taken from a person arrested for operating a motor vehicle while under the influence of intoxicating beverages and such beverage is moonshine and untaxed whiskey, the beverage may be seized as contraband and upon conviction the court shall order the title vested in the state alcoholic beverage control board to be disposed of as contraband. OAG 65-651 .

244.195. Title to contraband seized in dry territory to be vested in appropriate court — Destruction of contraband upon conviction of defendant.

  1. Title to seized contraband included in KRS 244.180(1), (2), (3), and (4) shall be vested in the appropriate court within whose jurisdiction the seizure occurred, irrespective of whether the contraband was seized by peace officers of the city or county or state administrators or investigators of the department, notwithstanding the provisions of KRS 242.380 .
  2. The court shall order the sheriff for the county in which the contraband included in subsection (1) of this section was seized to destroy the contraband, except firearms or ammunition, upon conviction of the defendant.
  3. Contraband firearms and ammunition shall be transferred to the Department of Kentucky State Police for disposition as provided in KRS 500.090 .

HISTORY: Enact. Acts 1956 (4th Ex. Sess.), ch. 7, §§ 1, 2; 1962, ch. 104, § 1; 1984, ch. 132, § 4, effective July 13, 1984; 2002, ch. 368, § 13, effective July 15, 2002; 2007, ch. 85, § 274, effective June 26, 2007; 2010, ch. 24, § 592, effective July 15, 2010; 2017 ch. 62, § 100, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

United States v. Robinson, 763 F.2d 778, 1985 U.S. App. LEXIS 31315 (6th Cir. 1985).

Opinions of Attorney General.

While no specific provision exists for the sale of alcoholic beverages seized under a general order of execution, the alcoholic beverage control board could sell such goods pursuant to the provisions of this section. OAG 79-581 .

244.200. Rights of owner or lienor as to contraband — Disposition of contraband.

  1. Contraband property included in KRS 244.180 shall be subject to the right of any owner or lienor, whose lien is valid and of record, to intervene and establish the owner or lienor’s rights in the property by proving that the property was being used in connection with traffic in alcoholic beverages without the knowledge, consent, or approval of the owner or lienor.
    1. If the owner of the property proves the owner’s lack of knowledge, consent, or approval, the court shall order the property restored to the owner; or
    2. If the lienor proves the lienor’s lack of knowledge, consent, or approval, the court shall order a sale of the property at public auction, unless an agreement is made between the lienor and the board, which shall not become final until it has been approved by the court. The board may deliver any property found to be contraband to a lienor whose claim has been established by order of a court of competent jurisdiction, upon payment to the board of the difference between the fair market value of the seized property and the recorded claim of the lienor.
  2. Where an agreement has been made between the lienor and the board and approved by the court, a public auction shall not be required. If an agreement is not entered into between the board and the lienor or approved by the court, and a public auction is required, the public auction shall be conducted by the sheriff of the county in which the property is seized. The sheriff shall receive and be allowed the same fees as allowed for sales under execution.
  3. The expenses of keeping and selling the property, and the amount of all valid recorded liens that are established by intervention as being bona fide, shall be paid out of the proceeds of the sales, whether they are private or public. The balance shall be paid into the State Treasury and be credited to the general fund.
  4. If the defendant is acquitted, no property seized as contraband in connection with the arrest of the defendant shall be ordered returned or restored unless the person from whose possession the property was taken proves that the person was in lawful possession of the property, and if no other person appears and proves that the other person owns the property or has a valid recorded lien on the property and that the property was being used without that person’s knowledge and consent, title shall vest in the board at the end of ninety (90) days.
  5. If the owners or lienholders of any contraband seized by state administrators or investigators of the department or turned over to the department by other officials, cannot be located within ninety (90) days, and during that time fail to appear and claim the contraband, or if the owner or lienholder appears and agrees, title to the contraband shall immediately vest in the board, which may sell the contraband at a private sale.

HISTORY: 2554b-151: amend. Acts 1984, ch. 132, § 5, effective July 13, 1984; 2010, ch. 24, § 593, effective July 15, 2010; 2017 ch. 62, § 101, effective June 29, 2017.

NOTES TO DECISIONS

1.Acquittal.

Refusal of grand jury to indict person charged with unlawful possession and transporting of whiskey, and dismissal of charges, constituted an “acquittal” within the meaning of this section. Commonwealth v. Kiddy, 292 Ky. 34 , 165 S.W.2d 969, 1942 Ky. LEXIS 27 ( Ky. 1942 ).

Where automobile in which whiskey was being transported was seized as contraband, but grand jury refused to indict operator of automobile on charge of illegal transportation, automobile then ceased to have character of contraband and circuit court could order its return to operator without proof of lawful possession. Whiskey could not be returned without proof of lawful possession, but in either case notice to the Commonwealth or to the alcohol control board would not be required as a condition precedent to the order of return. Commonwealth v. Kiddy, 292 Ky. 34 , 165 S.W.2d 969, 1942 Ky. LEXIS 27 ( Ky. 1942 ).

2.Recovery by Owner.

Where driver was acquitted of the charge of illegally transporting alcoholic beverages and where the driver and his employer were in lawful possession in the sense that their possession did not violate the rights of any other claimant to the property, the driver and his employer had a right to maintain an action for recovery of the seized contraband against the field agent. Jack Walker Trucking Service, Inc. v. Strong, 488 S.W.2d 689, 1972 Ky. LEXIS 50 ( Ky. 1972 ).

Cited:

Eagle v. Burks, 304 Ky. 617 , 201 S.W.2d 890, 1947 Ky. LEXIS 689 ( Ky. 1947 ); Boyd v. Interstate Acceptance Corp., 205 Tenn. 458, 326 S.W.2d 911, 1959 Tenn. LEXIS 383 (Tenn. 1959); Pruitt v. Davidson, 334 S.W.2d 899, 1960 Ky. LEXIS 233 ( Ky. 1960 ).

Opinions of Attorney General.

Evidence relevant to the commission of a crime may not be attached while being held prior to trial. OAG 75-287 .

Research References and Practice Aids

Cross-References.

Cash receipts to be deposited in state depositories, KRS 41.070 .

Distilled Spirits and Wine

244.210. Nonbeverage alcohol not to be sold for beverage purposes.

No person shall knowingly sell any alcoholic product intended for nonbeverage purposes under KRS 243.320 , under circumstances from which he or she might reasonably deduce the intention of the purchaser to use it for beverage purposes.

History. 2554b-193: amend. 2013, ch. 121, § 87, effective June 25, 2013.

244.220. Regulations of special licenses to be prescribed by board.

The prohibitions, restrictions and regulations relating to special licenses shall be those which the board may by its regulations and in the exercise of its sound discretion prescribe. For purposes of this section, a special license shall be one that is not set forth in KRS Chapters 241 to 244.

History. 2554b-191; 2021 ch. 13, § 14, effective March 12, 2021.

244.230. Federal regulations adopted relating to labeling and standards of fill — Labeling when manufactured outside country.

  1. The regulations of the Bureau of Internal Revenue in the United States Department of the Treasury, with respect to the labeling and standards of fill of distilled spirits and wine in their original sealed packages, are adopted and any distilled spirits and wine shall be deemed to be properly labeled under all the laws of this state, if the labels and standards of fill conform to those regulations.
  2. Distilled spirits not produced or bottled in the United States shall be labeled in the same manner that distilled spirits produced or bottled in this state are required to be labeled.
  3. Subsections (1) and (2) of this section shall not prevent the department from promulgating administrative regulations on this subject that are in addition to but not contrary to the regulations of the Bureau of Internal Revenue in the United States Department of the Treasury.

HISTORY: 2554b-170: amend. Acts 2004, ch. 123, § 2, effective July 13, 2004; 2010, ch. 24, § 594, effective July 15, 2010; 2017 ch. 62, § 102, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Collins v. Bowles, 152 F.2d 760, 1946 U.S. App. LEXIS 1862 (6th Cir. 1946), rev’d, Collins v. Porter, 328 U.S. 46, 66 S. Ct. 893, 90 L. Ed. 1075, 1946 U.S. LEXIS 2497 (1946); James B. Beam Distilling Co. v. Department of Revenue, 367 S.W.2d 267, 1963 Ky. LEXIS 20 ( Ky. 1963 ).

244.235. “Kentucky” wine — Minimum requirements for use of Kentucky products.

No wine sold in Kentucky shall contain on its label or elsewhere on the wine’s retail container or package the word “Kentucky” or any other word or phrase implying that the origin of the wine is Kentucky, except in the name and address of the winery as required by federal laws or regulations, unless seventy-five percent (75%) of all grapes, grape juice, other fruits, other fruit juices, and honey used in making the wine were produced in the Commonwealth of Kentucky.

History. Enact. Acts 2006, ch. 179, § 14, effective January 1, 2007.

244.240. Distiller, rectifier, winery, or wholesaler not to be interested in retail premises — Transactions prohibited — Discounts in the usual course of business — Retailer not to demand violation of this section.

  1. No distiller, rectifier, winery, or wholesaler and no employee, servant, or agent of a distiller, rectifier, winery, or wholesaler shall:
    1. Except as provided in KRS 243.0305 and 243.155 , be interested directly or indirectly in any way in any premises where distilled spirits or wine is sold at retail or in any business devoted wholly or partially to the sale of distilled spirits or wine at retail;
    2. Make or cause to be made any loan to any person engaged in the manufacture or sale of distilled spirits or wine at wholesale or retail;
    3. Make any gift or render any kind of service whatsoever, directly or indirectly, to any licensee that may tend to influence the licensee to purchase the product of the distiller, rectifier, winery, or wholesaler; or
    4. Enter into a contract with any retail licensee under which the licensee agrees to confine the licensee’s sales to distilled spirits or wine manufactured or sold by one (1) or more distillers, rectifiers, wineries, or wholesalers. This type of contract shall be void.
  2. Nothing in this section shall prohibit the giving of discounts in the usual course of business if the same discounts are offered to all licensees holding the same license type buying similar quantities.
  3. A retailer shall not require or demand that a distiller, rectifier, winery, or wholesaler violate this section.
  4. This section shall not prohibit a distiller from:
    1. Supplying a retailer with barrels for the purpose of holding barrel-aged and batched cocktails; and
    2. Selling private selection packages as authorized in subsection (4)(a)3. of Section 6 of this Act.

History. 2551b-168: amend. 2013, ch. 121, § 88, effective June 25, 2013; 2016 ch. 80, § 24, effective July 15, 2016; 2017 ch. 62, § 103, effective June 29, 2017; 2018 ch. 164, § 8, effective April 13, 2018; 2022 ch. 39, § 12, effective March 24, 2022.

Opinions of Attorney General.

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 .

244.245. Contract requirements — Pricing — Filing requirements — Penalties. [Repealed.]

Compiler’s Notes.

This section (Acts 1978, ch. 194, § 26, effective June 17, 1978) was repealed by Acts 1982, ch. 390, § 13, effective June 1, 1982.

244.250. Producer or wholesaler not to furnish sign to licensee except under administrative regulations.

No distiller, rectifier, winery, or wholesaler shall furnish or cause to be furnished to any licensee any exterior or interior sign, printed, painted, electric or otherwise, except as authorized by the administrative regulations of the board.

History. 2554b-171: amend. 2013, ch. 121, § 89, effective June 25, 2013.

244.260. Containers that wholesaler may purchase, keep, or sell in — Distilled spirits or wine to be kept by licensees in approved containers.

  1. No wholesaler shall purchase, import, keep upon the licensed premises, or sell any distilled spirits or wine in any container except in the original sealed package containing quantities of not less than fifty (50) milliliters each of distilled spirits or one hundred (100) milliliters of wine, and not exceeding the largest applicable federal standard of fill size for distilled spirits or two hundred twenty (220) liters of wine, as received from the distiller, rectifier, winery, or wholesaler. The containers shall be in sizes authorized by federal law and at all times shall have affixed to them all labels required by federal law or the administrative regulations of the board.
  2. Except for purposes of preparing barrel-aged and batched cocktails as defined in Section 1 of this Act and as permitted by KRS 243.055 and 243.082(4) and subsection (3) of this section, licensees holding retail distilled spirits and wine drink licenses shall not keep upon their licensed premises any distilled spirits or wine in any container except in the original package as received from the wholesaler and authorized by federal law. Containers of distilled spirits shall not exceed the largest applicable federal standard of fill size for distilled spirits or be less than fifty (50) milliliters of distilled spirits. Containers of wine shall not exceed two hundred twenty (220) liters or be less than one hundred (100) milliliters. All containers shall at all times have affixed to them any labels required by federal law or administrative regulations of the board.
  3. Licensees holding retail distilled spirits and wine package licenses shall not keep upon their licensed premises any distilled spirits or wine in any container except in the original package as received from the wholesaler and authorized by federal law. Containers of distilled spirits shall not exceed the largest applicable federal standard of fill size for distilled spirits or be less than fifty (50) milliliters of distilled spirits. Containers of wine shall not exceed two hundred twenty (220) liters or be less than one hundred (100) milliliters. Except as permitted by subsection (2) of this section, all containers shall at all times remain sealed and shall have affixed to them any labels required by federal law or administrative regulations of the board.

History. 2554b-172: amend. Acts 1978, ch. 194, § 22, effective June 17, 1978; 1992, ch. 228, § 3, effective July 14, 1992; 1998, ch. 121, § 30, effective July 15, 1998; 2000, ch. 289, § 3, effective July 14, 2000; 2013, ch. 121, § 90, effective June 25, 2013; 2017 ch. 62, § 104, effective June 29, 2017; 2022 ch. 39, § 13, effective March 24, 2022.

NOTES TO DECISIONS

Cited:

Burke v. Stitzel-Weller Distillery, 284 Ky. 676 , 145 S.W.2d 861, 1940 Ky. LEXIS 565 ( Ky. 1940 ).

244.270. Wholesaler to have name and license number on window or building.

Each wholesaler shall have painted on the front window of the licensed premises, or, if there is no window, on a sign affixed to the front of the building containing the licensed premises, the name of the licensee together with the inscription: “Kentucky Wholesaler’s Liquor License No. . . . . . ” in uniform letters not less than three (3) inches in height.

History. 2554b-173: amend. Acts 1998, ch. 121, § 31, effective July 15, 1998.

244.280. Peddling prohibited.

No licensee nor any of the licensee’s agents, servants, or employees shall peddle any alcoholic beverages from house to house, by any means, where the sale is solicited at the residence or place of business of the consumer.

HISTORY: 2554b-158: amend. Acts 2000, ch. 289, § 4, effective July 14, 2000; 2017 ch. 62, § 105, effective June 29, 2017.

244.290. Sales of distilled spirits or wine when polls are open permitted in wet or moist territory — Power of local governments to regulate — Sunday sales.

    1. A licensee authorized to sell distilled spirits or wine at retail shall be permitted to sell and deliver distilled spirits and wine during the hours the polls are open on any primary, or regular, local option, or special election day unless it is located where the legislative body of a city, urban-county government, consolidated local government, charter county government, unified local government, or the fiscal court of a county adopts an ordinance after June 25, 2013, that prohibits the sale of distilled spirits and wine or limits the hours and times in which distilled spirits and wine may be sold within its jurisdictional boundaries on any primary, or regular, local option, or special election day during the hours the polls are open. (1) (a) A licensee authorized to sell distilled spirits or wine at retail shall be permitted to sell and deliver distilled spirits and wine during the hours the polls are open on any primary, or regular, local option, or special election day unless it is located where the legislative body of a city, urban-county government, consolidated local government, charter county government, unified local government, or the fiscal court of a county adopts an ordinance after June 25, 2013, that prohibits the sale of distilled spirits and wine or limits the hours and times in which distilled spirits and wine may be sold within its jurisdictional boundaries on any primary, or regular, local option, or special election day during the hours the polls are open.
    2. This subsection shall only apply in a wet or moist territory.
    3. Notwithstanding any other provision of the Kentucky Revised Statutes to the contrary, the fiscal court of a county shall not by ordinance or any other means:
      1. Supersede, reverse, or modify any decision made pursuant to this subsection by the legislative body of a city within that county; or
      2. Impose an action upon a city within that county when that city has taken no formal action pursuant to this subsection.
  1. In any county containing a city of the first class, or a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census in which the sale of distilled spirits and wine by the drink is permitted under KRS Chapter 242, an election on the question of permitting the sale of distilled spirits and wine by the drink on Sunday may be held as provided in KRS Chapter 242.
  2. Except as permitted by KRS 243.050 and subsection (4) of this section, a licensee authorized to sell distilled spirits or wine at retail shall not sell or deliver distilled spirits and wine between midnight and 6 a.m. or at any time during the twenty-four (24) hours of a Sunday.
  3. A licensee authorized to sell distilled spirits and wine at retail may sell and deliver distilled spirits and wine on Sunday and during the hours and times as permitted by local ordinance of the legislative body of a city, urban-county government, consolidated local government, charter county government, unified local government, or the county with local jurisdiction. These ordinances shall not prohibit the sale, gift, or delivery of distilled spirits or wine between 6 a.m. and 12 midnight any day, except Sunday.
  4. In any territory containing a licensed small farm winery that is permitted to sell alcoholic beverages under KRS Chapter 242, the sale of alcoholic beverages at the small farm winery on Sunday may be permitted if:
    1. The legislative body of the local government having jurisdiction approves by local ordinance the sale of alcoholic beverages on Sunday in strict accordance with the sales permitted by KRS 243.155 on the licensed premises of a small farm winery during the hours and times as permitted in the local ordinance; or
    2. A limited sale precinct election on the issue of Sunday sales is approved after meeting the requirements of KRS 242.1241 .
  5. In any county containing a city of the first class or in any city located in that county in which the sale of distilled spirits and wine is permitted under KRS Chapter 242, the distilled spirits administrator may issue a license to holders of a quota retail drink license or a special private club license that permits the sale of distilled spirits and wine by the drink on Sunday from 1 p.m. until the prevailing time for that locality.

HISTORY: 2254b-179: amend. Acts 1942, ch. 168, § 7, 16; 2016 ch. 80, § 17, effective July 15, 2016; 2017 ch. 62, § 106, effective June 29, 2017; 2020 ch. 102, § 11, effective July 15, 2020.

NOTES TO DECISIONS

1.Constitutionality.

The subject of minimum wages, even though limited to a certain group of businesses which sell alcoholic beverages, is clearly beyond the “general idea” of a bill pertaining to alcoholic beverage control; accordingly, 1982 amendment to subsection (5) of this section by Acts 1982, ch. 340, § 1, to include minimum wage provisions in an act primarily concerned with alcoholic beverage control violated Ky. Const., § 51 prohibiting legislation dealing with more than one subject. Lewis v. Captain's Quarters, Inc., 655 S.W.2d 26, 1983 Ky. App. LEXIS 331 (Ky. Ct. App. 1983).

The legislature, by the enactment of subsection (4) of this section, intended to enable those classified in the statute to be in a position to compete for tourist and convention business with those similarly situated in bordering states who were acting under less restrictive circumstances and this intent is a valid state purpose; accordingly, subsection (4) is constitutional. Commonwealth v. Seabolt, 668 S.W.2d 571, 1984 Ky. App. LEXIS 493 (Ky. Ct. App. 1984).

2.Construction.

The obvious purpose of this section is to insure that licensed premises are not open for business on Sunday, unless the alcoholic beverages are in a locked department as permitted by this section. George v. Alcoholic Beverage Control Board, 421 S.W.2d 569, 1967 Ky. LEXIS 64 ( Ky. 1967 ).

Where owner admitted opening licensed premises and selling ice, peanut butter crackers and cigars on Sunday his license was properly suspended. George v. Alcoholic Beverage Control Board, 421 S.W.2d 569, 1967 Ky. LEXIS 64 ( Ky. 1967 ).

3.Sunday Operation.

This section does not permit a licensee to sell intoxicating liquors until 6 a.m. on Sundays, in counties containing cities of the first, second and third class. Strader v. Commonwealth, 302 Ky. 330 , 194 S.W.2d 368, 1946 Ky. LEXIS 633 ( Ky. 1946 ).

Under KRS 244.290 , the restriction that liquor and wine sales on Sundays cannot begin before 1:00 p.m., which is only contained in KRS 244.290 (4) and (5), applies only to by-the-drink sales; KRS 244.290(3)(b) contains no restriction regarding the hours distilled spirits and wine can be sold on Sundays. Liquor Outlet, LLC v. Alcoholic Bev. Control Bd., 141 S.W.3d 378, 2004 Ky. App. LEXIS 225 (Ky. Ct. App. 2004).

Grant of authority to local governments by KRS 244.290(3)(b) to regulate the sale of liquor and wine on Sundays does not contain the limitation that it applies only to by-the-drink alcohol sales. Liquor Outlet, LLC v. Alcoholic Bev. Control Bd., 141 S.W.3d 378, 2004 Ky. App. LEXIS 225 (Ky. Ct. App. 2004).

As Bellevue, Ky., Ordinance § 112.40 conflicted with the 1992 version of KRS 244.290 , which was in effect when the ordinance was enacted, the ordinance was void to the extent that it allowed package liquor and wine sales on Sundays, and the later amendment of KRS 244.290 to allow package sales on Sunday did not revive the void ordinance. Liquor Outlet, LLC v. Alcoholic Bev. Control Bd., 141 S.W.3d 378, 2004 Ky. App. LEXIS 225 (Ky. Ct. App. 2004).

4.Election Day.

The prohibition respecting the sale of intoxicating liquor on election day by a licensed retailer is effective only during the time the polls are actually open. Butcher v. Adams, 310 Ky. 205 , 220 S.W.2d 398, 1949 Ky. LEXIS 880 ( Ky. 1949 ).

5.License Fees.

Since KRS 243.070 authorizes a city legislative body to impose license fees for the privilege of selling alcoholic beverages by the drink at retail, and since this section authorizes the city to establish the hours of sale, there is no violation of the statutes by reason of the fact that 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 ).

6.Evidence.

Where a state trooper testified that he had observed a party leaving the liquor store with a six-pack of beer after closing time, the evidence was sufficient to support the board’s holding that the statute had been violated. Clemons v. Kentucky Alcoholic Beverage Control Board, 443 S.W.2d 226, 1969 Ky. LEXIS 241 ( Ky. 1969 ).

7.Practice and Procedure.

Where a liquor store appealed from the suspension of its license by Kentucky’s Alcohol Beverage Control Board, as (1) the Circuit Court’s ruling that a city’s ordinance was void was merely ancillary to the determination of whether the liquor store violated KRS 244.290 by selling liquor on Sunday, and (2) the city’s absence did not prevent complete relief from being obtained by the board or liquor store, the city had not been an indispensable party. Liquor Outlet, LLC v. Alcoholic Bev. Control Bd., 141 S.W.3d 378, 2004 Ky. App. LEXIS 225 (Ky. Ct. App. 2004).

Cited:

Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1 , 178 S.W.2d 847, 1944 Ky. LEXIS 652 ( Ky. 1 944); Commonwealth v. Arlan’s Dep’t Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ).

Opinions of Attorney General.

A city of the first, second or third class could set the open hours and closing times as it sees fit even to the extent of staggering its hours on different nights so that the closing hours may differ from one night to the next. OAG 62-857 .

The fiscal courts of counties in which a city of the first, second or third class is located have complete discretion in determining at what hours and times distilled spirits, wines and malt beverages may be sold subject only to the restrictions of this section and KRS 244.480(3) (now 244.480(4)). OAG 62-857 .

A peace officer has the right to seize without a warrant alcoholic beverages kept in violation of this section when he is lawfully on the premises and observes the distilled spirits and wine without any search. OAG 65-412 .

The local option election on the Sunday sales of distilled spirits and wine must be held countywide in all precincts within the county. OAG 72-773 .

The city of Erlanger was not authorized to enact an ordinance permitting the sale of alcohol by the drink between the hours of midnight and 2:30 a.m. on Monday. OAG 74-813 .

In a wet county containing a city of the first or second class the sale of distilled spirits and wine by the drink on Sunday may only be authorized by an election. OAG 76-299 .

Retail premises licensed for the sale of distilled spirits and wine may remain open under state law for the period between 8 a.m. and midnight, and those licensed for the sale of malt beverages, between the hours of 6 a.m. and midnight, subject to the prohibition of Sunday sales, unless property excepted, and on election days, the only exception to which is the authority given specifically and exclusively to legislative bodies of first, second, and third class cities, and to the fiscal courts of counties having such cities within their boundaries, to establish different hours of operation, and no such power to regulate hours was, or has been, granted to cities of the fourth class. OAG 79-178 .

Subsection (5) of section 1 of Acts 1982, ch. 340, which amends this section by adding subsection (5) mandating the payment of minimum wages in certain industries, violates Ky. Const., § 51 because ch. 340 is entitled “An act relating to alcoholic beverage control,” while subsection (5) deals with an entirely different subject not contained in the title. OAG 82-212 .

Research References and Practice Aids

Cross-References.

Election days, general assembly may prohibit sale of alcoholic beverages on, Const., § 154.

244.295. Urban-county government may set liquor sale hours — Local option on Sunday sales in urban-county — Licensing — Sunday sales extension. [Repealed]

History. Enact. Acts 1982, ch. 340, § 2, effective July 15, 1982; 1998, ch. 522, § 22, effective July 15, 1998; 2007, ch. 99, § 11, effective June 26, 2007; 2012, ch. 125, § 10, effective July 12, 2012; 2013, ch. 121, § 92, effective June 25, 2013; 2014, ch. 22, § 23, effective July 15, 2014; repealed by 2017 ch. 62, § 119, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 340, § 2, effective July 15, 1982; 1998, ch. 522, § 22, effective July 15, 1998; 2007, ch. 99, § 11, effective June 26, 2007; 2012, ch. 125, § 10, effective July 12, 2012; 2013, ch. 121, § 92, effective June 25, 2013; 2014, ch. 22, § 23, effective July 15, 2014; 2017, ch. 62, § 119, effective January 1, 2018) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

244.300. Extension of credit by retailers prohibited — Exceptions.

No retailer selling distilled spirits and wine by the package or by the drink shall sell, deliver, or give away, or cause, permit or procure to be sold, delivered, or given away any distilled spirits or wine on credit, except that a bona fide licensed private club, restaurant, or hotel may sell on reasonable credit to its members, customers, or registered guests. Sales by any retailer selling distilled spirits or wine by the package or by the drink may be made by use of national or bank credit cards wherein the credit card company has agreed to payment to the licensee for such charges. However, nothing in this section shall be construed to authorize a licensee to issue its own credit cards or extend a personal credit to patrons.

History. 2554b-182: amend. Acts 1978, ch. 194, § 23, effective June 17, 1978; 1984, ch. 313, § 1, effective July 13, 1984; 1988, ch. 89, § 1, effective July 15, 1988; 2013, ch. 121, § 93, effective June 25, 2013.

NOTES TO DECISIONS

1.In General.

The use of a bank or national credit card as payment for distilled spirits or wine purchased from a retail package licensee is prohibited by this section. Department of Alcoholic Beverage Control v. Liquor Outlet, Inc., 734 S.W.2d 816, 1987 Ky. App. LEXIS 527 (Ky. Ct. App. 1987).

Opinions of Attorney General.

A restaurant holding retail drink and beer licenses which allows customers to purchase food and alcoholic beverages other than beer and charges them on a credit card violates this section. OAG 75-145 .

Only those establishments holding a “private club” license or a hotel holding a retail drink liquor license may sell on reasonable credit to its members or registered guests. OAG 75-145 .

The prohibition against credit sales applies only to distilled spirits and wine and not to beer or malt beverages. OAG 75-145 .

A barter club which exchanges products or services for club credits or for other products or services constitutes a prohibited credit arrangement for the sale of distilled spirits and wine. OAG 81-182 .

The legality of a retailer’s proposal to sell alcoholic beverages on a “lay-away” plan depends upon whether the terms of the “lay-away” plan at the outset involve a contract to sell rather than a present sale, with title passing on payment and delivery. If the transaction represents a contract to sell on the part of the retailer or an option to purchase on the part of the customer-purchaser, title has not passed and no binding sale for credit has occurred; on the other hand, if the lay-away plan involves a present sale with only payment and delivery postponed, the retailer-seller would clearly have completed a sale and passed title without receiving full remuneration thereby violating this section. OAG 83-416 .

The sale of malt beverages on credit or by means of a “lay-away” plan is not prohibited. OAG 83-416 .

Research References and Practice Aids

ALR

Construction and effect of liquor regulation forbidding or restricting sales on credit or other than for cash. 17 A.L.R.3d 396.

244.310. Containers that drink retailer may keep upon premises. [Repealed]

HISTORY: 2554b-187: amend. Acts 1970, ch. 136, § 2; 1978, ch. 194, § 24, effective June 17, 1978; 1988, ch. 24, § 1, effective July 15, 1988; 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-187: amend. Acts 1970, ch. 136, § 2; 1978, ch. 194, § 24, effective June 17, 1978; 1988, ch. 24, § 1, effective July 15, 1988) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

244.320. Females to be served only at tables. [Repealed.]

Compiler’s Notes.

This section (2554b-188) was repealed by Acts 1974, ch. 80, § 1.

NOTES TO DECISIONS

1.Constitutionality.

The provisions of this section respecting service of distilled spirits or whiskey to females were unconstitutional under the provisions of U.S. Const., Amend. 14, and Ky. Const., § 2. Commonwealth, Alcoholic Beverage Control v. Burke, 481 S.W.2d 52, 1972 Ky. LEXIS 218 ( Ky. 1972 ).

244.330. One bar allowed for each license — Service bars. [Repealed.]

Compiler’s Notes.

This section (2554b-188) was repealed by Acts 2013, ch. 121, § 105, effective June 25, 2013.

244.340. Containers that package retailer may purchase, keep, or sell in. [Repealed]

HISTORY: 2554b-184: amend. Acts 1978, ch. 194, § 25, effective June 17, 1978; 1992, ch. 228, § 2, effective July 14, 1992; 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-184: amend. Acts 1978, ch. 194, § 25, effective June 17, 1978; 1992, ch. 228, § 2, effective July 14, 1992) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

244.350. Package retailer not to deliver nor advertise delivery. [Repealed]

HISTORY: 2554b-186: amend. Acts 2000, ch. 435, § 16, effective July 14, 2000; 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-186: amend. Acts 2000, ch. 435, § 16, effective July 14, 2000) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

244.360. Alcoholic beverage retailer to have name and license number on window. [Repealed]

HISTORY: 2554b-185: amend. Acts 1998, ch. 522, § 23, effective July 15, 1998; 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-185: amend. Acts 1998, ch. 522, § 23, effective July 15, 1998) was repealed by Acts 2017, ch. 62, § 119, effective June 29, 2017.

244.370. Whiskey to be aged — Exception if not labeled as Kentucky whiskey.

No whiskey produced from grains which are cooked, fermented, and distilled in Kentucky, except whiskey the barrel containing which is branded “Corn Whiskey” under the internal revenue laws, shall be bottled in Kentucky or removed from this state unless such whiskey has been aged in oak barrels for a period of not less than one (1) full year; provided, however, that whiskey aged less than one (1) year may be removed from the state and bottled, or bottled in Kentucky, if the word “Kentucky” or any word or phrase implying Kentucky origin does not appear on the front label or elsewhere on the retail container or package except in the name and address of the distiller as required by federal regulation. For violations of this section, the department shall revoke the permit of the licensee from whose warehouse or premises such whiskey shall have been removed or in which such whiskey shall have been bottled.

HISTORY: 2554b-169: amend. Acts 1942, ch. 183, §§ 1, 2; 1970, ch. 11; 2010, ch. 24, § 595, effective July 15, 2010; 2017 ch. 59, § 5, effective June 29, 2017.

Opinions of Attorney General.

This section does not prohibit the aging, bottling and labeling of “light whiskey” in Kentucky which is done in strict compliance with applicable federal regulations. OAG 68-242 .

244.380. Provisions contracts of sale to contain (fair trade contracts). [Repealed.]

Compiler’s Notes.

This section (2554e-2, 2554e-12, 4748i-1, 4748i-3) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.390. Minimum resale prices. [Repealed.]

Compiler’s Notes.

This section (2554e-2: amend. Acts 1942, ch. 175) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.400. Contracts of producers and processors — Filing — Contents. [Repealed.]

Compiler’s Notes.

This section (2554e-3) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.410. Contracts of wholesalers — Filing — Contents. [Repealed.]

Compiler’s Notes.

This section (2554e-4) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.420. Nonresident producers and importers to sell under fair trade contract. [Repealed.]

Compiler’s Notes.

This section (2554e-5) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.430. Amendments to fair trade contracts may be filed. [Repealed.]

Compiler’s Notes.

This section (2554e-6) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.440. Registration of wholesalers authorized to handle particular brands — and product names.

  1. Every resident and nonresident distiller, rectifier, or winery and nonresident wholesaler who owns, is the primary source of supply, or has an exclusive interest in any particular brands, which are intended for sale or sold in this state, shall be licensed in this state and shall register on a form to be provided by the department, the names of the wholesalers in this state to whom distributing rights have been granted for one or more or all of the brands and product names of distilled spirits or wine offered for sale or sold in this state.
  2. No distiller, rectifier, or winery shall offer to sell or sell, and no wholesaler shall offer to purchase or purchase, any brands and product names that have not been registered as provided by this section.

HISTORY: 2554e-8, 2554e-9; 2010, ch. 24, § 596, effective July 15, 2010; 2013, ch. 121, § 94, effective June 25, 2013; 2017 ch. 62, § 107, effective June 29, 2017.

244.450. Wholesaler not to act until receipt of license and distribution rights and after filing brand registration form with department.

  1. No licensed wholesaler shall import, buy, offer for sale, or sell any brands offered for sale or sold by any out-of-state distiller, rectifier, winery, supplier, or wholesaler without:
    1. Having previously been granted distributing rights by a licensed out-of-state distiller, rectifier, winery, supplier, or wholesaler; and
    2. Having previously filed with the department a brand registration form signed by the licensed out-of-state distiller, rectifier, winery, supplier, or wholesaler.
  2. No wholesaler shall file or register a brand belonging to an out-of-state distiller, rectifier, winery, supplier, or wholesaler until the out-of-state distiller, rectifier, winery, supplier, or wholesaler becomes licensed and has granted distributing rights to the wholesaler.

History. 2554e-9; 2010, ch. 24, § 597, effective July 15, 2010; 2013, ch. 121, § 95, effective June 25, 2013.

244.460. Close-out sales — Requirements of. [Repealed.]

Compiler’s Notes.

This section (2554e-7) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.461. Use of rebate coupons — Redemption — Retailers’ loyalty cards.

  1. Manufacturers and importers of malt beverages, distilled spirits, and wine may advertise and promote, by specific brand and bottle size, malt beverages, distilled spirits, and wine for off-premises consumption by use of rebate coupons.
  2. Except as provided in subsection (3) of this section, rebate coupons are redeemable by the consumer at the point of purchase, or by mail-in certificate by which the consumer receives a cash refund or nonalcoholic beverage merchandise from the manufacturer, importer, or clearinghouse acting for the manufacturer or importer, upon submission by the consumer of the required proof of purchase.
  3. Rebate coupons on malt beverages that are redeemable by the consumer at the point of purchase are prohibited. Manufacturers and importers of malt beverages may provide rebate coupons that are redeemable by mail-in certificate by which the consumer receives a cash refund or nonalcoholic beverage merchandise from the manufacturer, importer, or clearinghouse acting for the manufacturer or importer, upon submission by the consumer of the required proof of purchase. Redemption of permitted rebate coupons on malt beverages shall be funded solely by manufacturers and importers of malt beverages.
  4. Unless prohibited by KRS 244.050 , loyalty cards issued by retailers that reward customers with product discounts for buying goods or services shall not be prohibited by this section.

History. Enact. Acts 2000, ch. 289, § 1, effective July 14, 2000; 2017 ch. 62, § 108, effective June 29, 2017; 2020 ch. 102, § 13, effective July 15, 2020.

244.470. Violators guilty of unfair competition. [Repealed.]

Compiler’s Notes.

This section (2554e-10, 4748i-2) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

Malt Beverages

244.480. Sales of malt beverages when polls are open permitted in wet or moist territory — Power of local governments to regulate — Sunday sales.

  1. Except as permitted by subsection (4) of this section, no brewer or distributor shall deliver any malt beverages on Sunday or between the hours of midnight and 6 a.m. on any other day.
  2. Except as permitted by subsection (4) of this section, a licensee authorized to sell malt beverages at retail shall not sell, give away, or deliver any malt beverages between midnight and 6 a.m. or at any time during the twenty-four (24) hours of a Sunday.
    1. A licensee authorized to sell malt beverages at retail may sell malt beverages during the hours the polls are open on a primary, or regular, local option, or special election day unless the licensee is located where the legislative body of an urban-county government, consolidated local government, charter county government, unified local government, city, or county, in which traffic in malt beverages is permitted by KRS Chapter 242 has adopted an ordinance after June 25, 2013, that prohibits the sale of alcoholic beverages or limits the hours and times in which alcoholic beverages may be sold within its jurisdictional boundaries on any primary, or regular, local option, or special election day. (3) (a) A licensee authorized to sell malt beverages at retail may sell malt beverages during the hours the polls are open on a primary, or regular, local option, or special election day unless the licensee is located where the legislative body of an urban-county government, consolidated local government, charter county government, unified local government, city, or county, in which traffic in malt beverages is permitted by KRS Chapter 242 has adopted an ordinance after June 25, 2013, that prohibits the sale of alcoholic beverages or limits the hours and times in which alcoholic beverages may be sold within its jurisdictional boundaries on any primary, or regular, local option, or special election day.
    2. This subsection shall only apply in a wet or moist territory.
    3. Notwithstanding any other provisions of the Kentucky Revised Statutes to the contrary, the fiscal court of a county shall not by ordinance or any other means:
      1. Supersede, reverse, or modify any decision made pursuant to this subsection by the legislative body of a city within that county; or
      2. Impose an action upon a city within that county when that city has taken no formal action pursuant to this subsection.
  3. A licensee may sell or deliver malt beverages on Sunday and during the times and hours as permitted by a local ordinance of the legislative body of an urban-county government, consolidated local government, charter county government, unified local government, city, or county with local jurisdiction. The ordinance shall not prohibit the sale, gift, or delivery of any malt beverages between 6 a.m. and midnight during any day, except Sunday.

HISTORY: 2554b-207: amend. Acts 1944, ch. 154, § 28; 2016 ch. 80, § 18, effective July 15, 2016; 2017 ch. 62, § 109, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Commonwealth v. Arlan’s Dep’t Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ), appeal denied, Arlan’s Dep’t Store, Inc. v. Kentucky, 371 U.S. 218, 83 S. Ct. 277, 9 L. Ed. 2d 264, 1962 U.S. LEXIS 3 (1962).

Opinions of Attorney General.

A city of the first, second or third class could set the open hours and closing times as it sees fit even to the extent of staggering its hours on different nights so that the closing hours may differ from one night to the next. OAG 62-857 .

The fiscal courts of counties in which a city of the first, second or third class is located have complete discretion in determining at what hours and times distilled spirits, wines and malt beverages may be sold subject only to the restrictions of KRS 244.290 and subsection (3) of this section. OAG 62-857 .

Retail premises licensed for the sale of distilled spirits and wine may remain open under state law for the period between 8 a.m. and midnight, and those licensed for the sale of malt beverages, between the hours of 6 a.m. and midnight, subject to the prohibition of Sunday sales, unless properly excepted, and on election days, the only exception to which is the authority given specifically and exclusively to legislative bodies of first, second, and third class cities, and to the fiscal courts of counties having such cities within their boundaries, to establish different hours of operation, and no such power to regulate hours was, or has been, granted to cities of the fourth class. OAG 79-178 .

A city of the fourth class may not enact an ordinance to vary the hours during which a retailer may sell malt beverages; the authority to vary the hours is granted only to cities of the first three classes and cities of the fourth class are restricted by the hours set forth in subsection (1) of this section. OAG 81-398 .

The hours and days of the sale of malt beverages are governed by subsection (1) of this section, in the absence of the fiscal court’s adopting an ordinance regulating the same. OAG 84-362 .

Research References and Practice Aids

Cross-References.

Election day, general assembly may prohibit sale of alcoholic beverages on, Ky. Const., § 154.

Local option election day, sale of alcoholic beverages on, prohibited, KRS 242.100 .

244.490. Sales to persons illegally selling malt beverages prohibited.

No person shall sell any malt beverage to any person engaged in selling malt beverages in violation of the provisions of KRS Chapters 242, 243 and 244.

History. 2554b-211.

244.500. Malt beverage premium prohibition — Exceptions.

  1. Except as permitted by subsection (2) of this section, a licensee shall not offer or give anything tangible of value as a premium, gift, or prize for:
    1. The return of caps, stoppers, corks, stamps, wrappers, coupons, or labels taken from any bottle, case, barrel, or package containing malt beverages; or
    2. Any purpose in connection with the sale of malt beverages.
  2. The following activities shall be permitted:
    1. The return of moneys specifically deposited for the return of the original containers to the owners;
    2. A premium, gift, or prize by brewers, wholesalers, or distributors to wholesalers, distributors, or their employees in connection with sales incentive programs;
    3. Brewer-sponsored national sweepstakes in which major prizes, not including brand-related novelty items, are given to consumers based on certificates found in malt beverage packages or on point of sale materials. Malt beverage distributors, retail licensees, and their employees shall not be eligible to redeem the certificates or participate in the national sweepstakes;
    4. The sale of malt beverages packaged in or securely bundled with brand-related novelty items if the price charged for the packaged or bundled malt beverages specifically includes the cost of the brand-related novelty item; and
    5. Loyalty cards issued by retailers that reward customers with points or discounts for buying goods or services.

History. 2554b-206: amend. Acts 1982, ch. 104, § 1, effective July 15, 1982; 1990, ch. 359, § 1, effective July 13, 1990; 2007, ch. 99, § 7, effective June 26, 2007; 2017 ch. 62, § 110, effective June 29, 2017; 2020 ch. 102, § 14, effective July 15, 2020.

NOTES TO DECISIONS

Cited:

Cobb v. King Kwik Minit Market, Inc., 675 S.W.2d 386, 1984 Ky. LEXIS 250 ( Ky. 1984 ).

Opinions of Attorney General.

Driver/salesmen incentives provided by breweries or distributors are within the meaning of this section, and are prohibited. OAG 80-632 .

Local bowling establishments could sponsor a national bowling tournament conducted by a beer manufacturer without violating this section where it was the manufacturer and not the malt beverage licensee offering or giving the “premium, gift or prize” and, the event did not occur “in connection with the sale of malt beverages” inasmuch as the purchase of such beverages was not required of persons who wished to participate in or observe the tournament. OAG 82-178 .

The underwriting of a $50,000 stakes race purse at a race track by a brewery company did not violate this section since it was the manufacturer and not the licensee, which was offering the “prize” and, the prize was not offered “in connection with the sale of malt beverages,” inasmuch as the purchase of such beverages was not required of persons who wished to participate in the race. Although the event might build goodwill for the brewery company thereby indirectly increasing sales of its product, the relationship between the prize and the purchase of the brewery’s products was so remote as to remove the event from the scope of this section. OAG 82-321 .

244.510. Adoption of labeling and advertising regulations of Bureau of Internal Revenue.

  1. The department may in its discretion adopt any regulations of the Bureau of Internal Revenue in the United States Department of the Treasury relating to labeling and advertising of malt beverages.
  2. The adoption of regulations of the Bureau of Internal Revenue in the United States Department of the Treasury shall not become effective as to any brewer or distributor having labels on hand that would be outlawed by adoption of the regulation until a period of ninety (90) days from the date of adoption.

History. 2554b-215; 2010, ch. 24, § 598, effective July 15, 2010.

244.520. Advertisement or label not to refer to alcoholic content. [Repealed.]

Compiler’s Notes.

This section (2554b-210) was repealed by Acts 1998, ch. 121, § 39, effective July 15, 1998.

244.530. Signs on premises. [Repealed.]

Compiler’s Notes.

This section (2554b-209) was repealed by Acts 1984, ch. 58, § 1, effective July 13, 1984.

244.540. Advertising malt beverages near school or church prohibited.

  1. No licensee shall advertise any malt beverage by trade name, trade-mark or in any other manner within one hundred (100) feet of the property line of any school or church. The distance shall be by straight line.
  2. Subsection (1) shall not apply to advertisements placed on the establishment of brewers or distributors in operation prior to March 7, 1938, nor to signs in position on March 7, 1938, nor to signs located in urban-county governments, cities of the first class, or cities containing a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census.

History. 2554b-208; 2014, ch. 92, § 302, effective January 1, 2015.

Research References and Practice Aids

ALR

Validity, construction, and effect of statutes, ordinances or regulations prohibiting or regulating advertising of intoxicating liquors. 20 A.L.R.4th 600.

244.550. Adulteration of malt beverages prohibited.

No person shall fortify, adulterate, contaminate or in any manner change the character or purity of the malt beverages from that as originally marketed by the brewer or sell, deliver or transport malt beverages except in the original containers.

History. 2554b-216: amend. Acts 1974, ch. 308, § 45.

244.560. Brewer or distributor to make accurate invoice — Refund, rebate or discount prohibited.

  1. No brewer or distributor, his agents or employees, shall make any sale or delivery of any malt beverage without a written invoice made concurrently with the sale or delivery, showing prices and conditions upon which the sale or delivery is made; make any invoice which falsely indicates prices and terms of any sale; insert in any invoice any statements which make the invoice a false record, wholly or in part, of the transaction involved or represented on the face of the invoice; or withhold from any invoice any statement which properly should be included in it so that in the absence of such a statement the invoice does not truly reflect the transaction involved.
  2. No brewer or distributor shall make, directly or indirectly, through any agent or employee, and no retailer shall receive any payment of any allowance, rebate, refund, concession or discount, whether in the form of money or otherwise, that does not conform with the prices and conditions of sale shown on the invoice.

History. 2554b-218.

Opinions of Attorney General.

A District of Columbia based wholesaler does not have a right to give invoices to Kentucky distributors for beer picked up by the Kentucky distributor from distributors and retailers in other states. OAG 80-629 .

244.570. Brewer or distributor not to be financially interested in retail premises.

  1. No brewer or distributor shall be interested in any manner, either directly or indirectly, in the ownership or leasehold of any property or in any mortgage against the property for which a retail license is issued, nor shall a brewer or distributor either directly or indirectly lend any moneys, credit or the equivalent thereto to any retailer in equipping, fitting out or maintaining and conducting either in whole or in part a malt beverage retail establishment or business.
  2. Subsection (1) shall not apply to the interest of a brewer or distributor in any mortgage or other lien taken by him to secure the payment in whole or part of any indebtedness due him by any other licensee and incurred prior to March 7, 1938. It shall not prohibit a distributor from owning stock in a brewery.

History. 2554b-217.

Opinions of Attorney General.

An individual may be a major stockholder in a corporation holding a retail malt beverage license in Kentucky while also a major stockholder of a corporation holding a brewer’s or distributor’s license in another state since it is the corporations, and not the individual stockholder, whose mutual financial interests are precluded by this section. OAG 80-312 .

Since this section prohibits any wholesale beer distributor or brewer from becoming financially interested in retail premises, the fact that the wholesaler or brewer is a nonresident is of no consequence. OAG 80-312 .

The purpose of this section is clearly to prohibit brewers and distributors from becoming financially interested in retail malt beverage premises. OAG 80-312 .

244.580. Exclusive outlets prohibited.

No brewer, distributor or transporter of malt beverages shall require by agreement or otherwise, directly or indirectly or through an affiliate or subsidiary, that any retailer engaged in the sale of malt beverages, purchase malt beverages from him to the exclusion in whole or in part of malt beverages sold or offered for sale by other persons.

History. 2554b-212.

244.585. Distributor of malt beverages not to sell outside his designated territory — Contract between distributor and supplier.

  1. It shall be unlawful for any distributor to sell any brand or product name of malt beverage in the Commonwealth of Kentucky, except in the territory described in a written agreement between the supplier or brewer and distributor, authorizing sale by the distributor of that brand and product name within a designated area, and within that designated area the distributor shall not refuse to sell or offer reasonable service to licensed retailers during the normal business hours of the distributor. Where a supplier or brewer sells several brands and named products, the agreement need not apply to all brands and named products sold by the supplier or brewer and may apply to only one (1) brand and product name. No supplier or brewer shall provide by the written agreement for the distribution of a brand or named product of malt beverages to more than one (1) distributor for all or any part of the designated territory. Upon request, all territorial agreements shall be filed with the department.
  2. Each distributor shall comply with current, written quality control standards as determined by the owner of the trademark of the brand of malt beverage, provided those controls are:
    1. Normal industry practice;
    2. Reasonably related to the maintenance of quality control;
    3. Consistent with the provisions of this chapter and all administrative regulations promulgated under this chapter; and
    4. Communicated to the distributor through written notice of them from the owner.
  3. A distributor may sell to only those licensed retailers, religious, charitable, or fraternal organizations located within its designated geographical territory as provided in this section and to the distributor’s employees and to other distributors of the same brand. No brand or product name of malt beverage may be sold in the Commonwealth of Kentucky without prior written approval of the brewer and supplier filed with the department.
  4. A territorial designation in any agreement between a distributor and brewer or supplier pursuant to this section shall be modified only in accordance with all the rights and duties of the distributor and brewer or supplier contained in any written agreement between them or by any other action of the brewer, supplier, or distributor that is consistent with the terms of their agreement, and this modification shall be filed pursuant to the provisions of this section. The board shall require each party to verify that the level of service within the designated territory will not be adversely affected by the modification. When a distributor is prevented from selling or servicing retailers within its territory due to natural disasters, labor disputes, or other causes beyond the distributor’s control, the distributor may allow another distributor of the same brand or named product of malt beverages to sell and service that brand within its territory upon approval of the brewer or supplier.
  5. No provisions of any agreement shall expressly or impliedly establish or maintain the resale price of any brand or product name of malt beverage by the distributor.

HISTORY: Enact. Acts 1982, ch. 117, § 1, effective July 15, 1982; 2010, ch. 24, § 599, effective July 15, 2010; 2014, ch. 22, § 25, effective July 15, 2014; 2017 ch. 62, § 111, effective June 29, 2017.

Opinions of Attorney General.

Whether the vertical restraint created by this section violates the antitrust laws would depend on whether the restraint poses a significant injury to competition and the anti-competitive conduct clearly overrides any procompetitive redeeming benefit. OAG 82-514 .

In enacting this section, the 1982 General Assembly clearly articulated its policy to supplant the free and open market determination of distributor arrangements by requiring a written agreement between the distributor and brewer or supplier which defines the distributor’s exclusive territory; however, the section fails to provide for adequate state supervision over this policy since the determination of the exclusive territories is accomplished by private parties rather than by the state and the state does not regulate or “police” the enforcement of these exclusive territorial arrangements entered into by private parties. Thus, even though the exclusive territories for distributors are required by this section, the arrangements are not immune from antitrust scrutiny under the state action doctrine; whether the conduct contemplated by the section violates the antitrust laws would depend upon the factual circumstances surrounding the particular arrangement and the existence of an illegal restraint of trade. OAG 82-514 .

This section represents a vertical restraint between the brewer or supplier and the distributor by confining the distributor to a particular area of operation (plus various other restrictions relating to sale and quality control); these vertical nonprice restraints contained the potential to promote interbrand competition by allowing the manufacturer to achieve certain efficiencies in the distribution of his products and, moreover, society’s increasing demand that manufacturers directly assume responsibility for the safety and quality of their products constitutes a legitimate reason or justification for manufacturer control over the manner in which his product is sold. Accordingly, there is a rational relationship, for equal protection purposes, between the classification and the objectives justifying it; the statute also withstands a due process analysis in that it bears a reasonable relationship to the regulation of the sale of alcoholic beverages. OAG 82-514 .

In order to effectuate the intent of this section and to construe subsection (3) of this section in harmony with the other subsections, the phrase “brewer and supplier” in the last sentence of subsection (3) must be interpreted as “brewer or supplier” and thus subsection (3) must be interpreted to require the prior written approval of the supplier or brewer for the sale of a particular brand of malt beverage. OAG 82-572 .

244.590. Brewer or distributor prohibited from offering certain inducements to retailers — Brewer or distributor may furnish advertising matter or cleaning service to retailer — Retailer not to demand violation of this section — Sampling events not a violation of this section.

  1. No brewer or distributor shall induce through any of the following means any retailer selling malt beverages by the package or drink to purchase any malt beverages from that brewer or distributor to the exclusion in whole or in part of malt beverages sold or offered for sale by other persons:
    1. By acquiring or holding, after the expiration of any existing license, any interest in any license with respect to the premises of the retailer;
    2. By acquiring any interest in real or personal property owned, occupied, or used by the retailer in the conduct of the retailer’s business;
    3. By furnishing, giving, renting, lending, or selling to the retailer, any equipment, fixtures, signs, supplies, money, services, or other things of value, except as the malt beverages administrator, having regard for the public health, the quantity and value of the articles involved, the prevention of monopoly, and the practice of deception, may permit through the promulgation of an administrative regulation;
    4. By paying or crediting the retailer for any advertising, display, or distribution service subject to the exceptions that the board may permit through the promulgation of an administrative regulation;
    5. By guaranteeing any loan or the repayment of any financial obligation of the retailer; or
    6. By requiring the retailer to take and dispose of a certain quota of any malt beverages.
  2. Notwithstanding any provisions in KRS Chapters 241 to 244 and this section, a brewer or distributor may:
    1. Give, rent, loan, or sell to any retailer selling malt beverages by the package or drink signs, posters, placards, designs, devices, decorations, or graphic displays bearing advertising matter and for use in windows or elsewhere in the interior of a retail malt beverage establishment; and
    2. Provide or furnish draught-line cleaning or coil-cleaning service to a nonquota retail malt beverage package licensee either directly or indirectly with the consent of the distributor.
  3. A retailer shall not require or demand that a brewer or distributor violate this section.
  4. Sampling events conducted under KRS 243.0307(2)(d) shall not be a violation of this section.

History. 2554b-213: amend. Acts 2004, ch. 120, § 4, effective July 13, 2004; 2013, ch. 121, § 97, effective June 25, 2013; 2016 ch. 80, § 25, effective July 15, 2016; 2017 ch. 62, § 112, effective January 1, 2018; 2020 ch. 102, § 15, effective July 15, 2020.

Compiler’s Notes.

For this section as effective until January 1, 2018, see the preceding section also numbered KRS 244.590 .

244.600. Commercial bribery and other inducements unlawful.

No brewer shall induce through any of the following means, any retailer selling malt beverages by the package or drink to purchase any malt beverage products from him or her to the exclusion in whole or in part of malt beverages sold or offered for sale by other persons, if the brewer engages in the practice of using such means, or any of them, to such an extent as substantially to restrain or prevent transactions in malt beverages:

  1. By commercial bribery;
  2. By offering or giving any bonus, premium, or compensation to any officer, employee, or representative of the retailer; or
  3. By making or allowing any rebates or refunds to any officer, employee, or representative of the retailer.
  4. Sampling events conducted under KRS 243.0307(2)(d) shall not be a violation of this section.

History. 2554b-214: amend. 2013, ch. 121, § 98, effective June 25, 2013; 2020 ch. 102, § 16, effective July 15, 2020.

Research References and Practice Aids

Cross-References.

Commercial bribery, Penal Code, KRS 518.020 .

Distribution of Malt Beverages

244.602. Legislative findings for KRS 244.602 to 244.606.

The General Assembly finds that KRS 244.602 to 244.606 are necessary in order to:

  1. Provide an orderly three (3) tier system for the distribution and sale of quality malt beverages in the Commonwealth of Kentucky;
  2. Promote the public health, safety, and welfare of the people of the Commonwealth of Kentucky; and
  3. Provide a distribution system of malt beverages that will facilitate the collection and accountability of state and local taxes.

History. Enact. Acts 2004, ch. 120, § 1, effective July 13, 2004.

244.604. Definitions for KRS 244.602 to 244.606.

As used in KRS 244.602 to 244.606 , unless the context requires otherwise:

  1. “Distributor” means any person who distributes or sells at wholesale malt beverages for the purpose of being sold at retail.
  2. “Existing distributor” means a distributor who distributes a particular brand or brands of malt beverage at the time a successor brewer or importer acquires rights to manufacture or import the particular brand or brands of malt beverage.
  3. “Good cause” means failure by a distributor to comply with the provisions of an agreement as delineated therein, which provisions are not unconscionable. Good cause shall not include:
    1. The failure or refusal of the distributor to engage in any trade practice or activity which would violate federal or state law;
    2. The failure or refusal of the distributor to take any action which would be contrary to these provisions;
    3. The sale or purchase of a brewer or importer, except as provided under KRS 244.606(2); and
    4. The implementation by a brewer or importer of a national or regional policy of consolidation unless the policy:
      1. Is reasonable, nondiscriminatory, and essential;
      2. Results in a contemporaneous reduction in the number of a brewer’s or importer’s distributors not only for a brand in this state, but also for that brand in contiguous states or in a majority of the state in which the brewer or importer sells that brand; and
      3. Was previously disclosed in writing and in reasonable detail by the brewer or importer implementing the policy to all affected distributors at least one hundred eighty (180) days prior to the implementation of the policy.

        The term “affected distributor” means distributors who may reasonably be expected to experience a loss or diminishment of a right to distribute a brand, in whole or in part as a consequence of a proposed consolidation policy.

  4. “Good faith” means honesty in fact and the observance of reasonable commercial standard of fair dealing in the trade, as defined under KRS Chapter 355.
  5. “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, exceeding five-tenths of one percent (0.5%) alcohol by volume.
  6. “Successor” means a brewer or importer that acquires the right to manufacture or import a particular brand or brands of malt beverage.
  7. “Successor’s designee” means one (1) or more distributors designated by a successor to replace the existing distributor, for all or part of the existing distributor’s territory, in the distribution of a particular brand or brands of malt beverage.

History. Enact. Acts 2004, ch. 120, § 2, effective July 13, 2004; 2005, ch. 142, § 3, effective June 20, 2005.

244.605. Prohibition against requiring, requesting, or accepting payment of money for right to distribute brewer’s or importer’s malt beverages — Exception for marketing costs.

  1. No brewer or importer of malt beverages shall:
    1. Require or request a distributor to pay or convey to the brewer or importer; nor
    2. Accept any sum of money;

      in exchange for the right to distribute the product or products of the brewer or importer in a designated territory.

  2. Nothing in this section shall prohibit a brewer or importer of malt beverages from requesting a distributor to pay or contribute any sum of money for or toward the cost of marketing the product or products of the brewer or importer so long as the money contributed by the distributor is spent by the brewer or importer in a manner and at such times as agreed to in writing by the brewer or importer and the distributor.

History. Enact. Acts 2014, ch. 115, § 5, effective July 15, 2014.

244.606. Contents of agreement among brewer, importer, and distributor — Conditions for transfer of brands from brewer or importer — Conditions for termination — Duties — Damages.

  1. Every brewer and importer of malt beverages shall contract and agree in writing with each of its distributors to provide and specify the rights and duties of the brewer, the importer, and the distributor with and in regard to the sale of the products of the brewer or the importer within the Commonwealth of Kentucky. The terms and provisions of the contracts shall comply with and conform to KRS 244.602 to 244.606 and to all other applicable statutes.
  2. If a particular brand or brands of malt beverage are transferred by purchase or otherwise from a brewer or importer, the successor brewer or importer, and the successor brewer’s or importer’s designee, shall comply with the following:
    1. The successor brewer or importer shall notify the existing distributor of the successor’s intent not to appoint the existing distributor for all or a part of the existing distributor’s territory for the product. The successor shall mail the notice of termination by certified mail, return receipt requested, to the existing distributor. The successor shall include in the notice the names, addresses, and telephone numbers of the successor’s designees;
    2. A successor’s designee shall negotiate with the existing distributor to determine the fair market value of the existing distributor’s right to distribute the product in the existing distributor’s territory immediately before the successor acquired rights to the particular brand or brands of malt beverage. For the purposes of this paragraph, fair market value shall be the value that would be determined in an arm’s length transaction entered into without duress or threat of termination of the existing distributor’s right and shall include all elements of value, including goodwill and going-concern value;
    3. The existing distributor shall continue to distribute the product until payment of the compensation agreed to under paragraph (b) of this subsection or awarded under paragraph (d) of this subsection is received;
    4. The successor’s designee and the existing distributor shall negotiate in good faith. If the parties fail to reach an agreement not later than thirty (30) days after the existing distributor receives the notice under paragraph (a) of this subsection, the successor’s designee or the existing distributor may send a written notice to the other party and the American Arbitration Association, or its successor in interest, declaring the party’s intention to proceed with final and binding arbitration administered by the American Arbitration Association under the American Arbitration Association’s Commercial Arbitration Rules. Thereafter, an arbitration shall be held for the purpose of determining the fair market value of the existing distributor’s right to distribute the product in the existing distributor’s territory immediately before the successor acquired rights to the particular brand or brands of malt beverage. For the purpose of this paragraph, fair market value shall be the value that would be determined in an arm’s length transaction entered into without duress or threat of termination of the existing distributor’s right and shall include all elements of value, including goodwill and going-concern value;
    5. Notice of intent to arbitrate shall be sent, as provided in paragraph (d) of this subsection, not later than thirty-five (35) days after the existing distributor receives notice under paragraph (a) of this subsection. The arbitration proceeding shall conclude not later than forty-five (45) days after the date the notice of intent to arbitrate is mailed to a party;
    6. Any arbitration held pursuant to this subsection shall be conducted in the city within Kentucky that:
      1. Is closest to the existing distributor; and
      2. Has a population of more than twenty thousand (20,000);
    7. Any arbitration held pursuant to this subsection shall be conducted before one (1) impartial arbitrator to be selected by the American Arbitration Association. The arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association;
    8. An arbitrator’s award in any arbitration held pursuant to this subsection shall be monetary only and shall not enjoin or compel conduct. Any arbitration held pursuant to this subsection shall be instead of all other remedies and procedures;
    9. The cost of the arbitrator and any other direct costs of any arbitration held pursuant to this subsection shall be equally divided by the parties engaged in the arbitration. All other costs shall be paid by the party incurring them;
    10. The arbitrator in any arbitration held pursuant to this subsection shall render a decision not later than thirty (30) days after the conclusion of the arbitration, unless this time period is extended by mutual agreement of the parties or by the arbitrator. The decision of the arbitration is final and binding on the parties. Under no circumstances may the parties appeal the decision of the arbitrator;
    11. A party who fails to participate in the arbitration hearings in any arbitration held pursuant to this subsection waives all rights the party would have had in the arbitration and is considered to have consented to the determination of the arbitrator;
    12. If the existing distributor does not receive payment from the successor’s designee of the compensation under paragraph (b) or (d) of this subsection not later than thirty (30) days after the date of the settlement or arbitration award:
      1. The existing distributor shall remain the distributor of the product in the existing distributor’s territory to at least the same extent that the existing distributor distributed the product immediately before the successor’s designee acquired rights to the product; and
      2. The existing distributor is not entitled to the settlement or arbitration award;
    13. Nothing in this section shall be construed to limit or prohibit good-faith settlements voluntarily entered into by the parties; and
    14. Nothing in this section shall be construed to give the existing distributor or a successor’s designee any right to compensation if the existing distributor or successor’s designee is terminated by a brewer or importer pursuant to subsection (4) of this section.
  3. The terms or provisions of any contract or agreement among any brewers, importers, or distributors, including contracts or agreements entered into after July 13, 2004, and any renewals or extensions of contracts existing prior to July 13, 2004, shall not permit a brewer or importer of malt beverages to, nor may any brewer or importer:
    1. Terminate, refuse to renew, or refuse to enter into an agreement, in part or in whole, with a distributor, except for good cause and in good faith;
    2. Terminate, refuse to renew, or refuse to enter into an agreement, in part or in whole, with a distributor without first giving the distributor written notice of any alleged deficiency on the part of the distributor and giving the distributor a reasonable opportunity of sixty (60) to one hundred twenty (120) days to cure the alleged deficiency;
    3. Unreasonably withhold timely consent to a proposed sale or transfer, in part or whole, of the stock or assets of the distributor, and in no event shall the brewer take more than thirty (30) days to approve or disapprove the proposed sale or transfer after the brewer has received written notice of the proposal from the distributor and received all requested information from the distributor to enable the brewer to pass upon the proposed sale or transfer;
    4. Assign an agreement, in part or in whole, with a distributor, except with consent from the distributor which shall not be unreasonably withheld. No consent is required where the distributor has proposed to transfer an ownership interest in its business and the brewer exercises its right to purchase this ownership interest in accordance with a written agreement between the brewer and distributor, subject to the brewer or its designee purchasing the ownership interest at the price and on the conditions applicable to the proposed change.
    5. Enter into a contract with more than one (1) distributor to sell any of its products or brand within the same territory or area at the same time. This paragraph shall not apply to contracts entered into prior to January 1, 2004, or future renewals of such contracts, to the extent the existing contract and the future renewal allow different distributors to sell certain but not all of the brewer’s or importer’s brands or brand extensions within the same territory or area at the same time;
    6. Unilaterally amend its agreement, or any document referred to or incorporated by reference in its agreement, with any distributor, except modifications contemplated by the brewer-distributor agreement which modifications occur after written notice to the distributor or amendments that occur by a brewer after having consulted with an advisory panel of distributors;
    7. Terminate an agreement with a distributor because the distributor refuses or fails to accept an unreasonable amendment to the agreement proposed by the brewer or importer;
    8. Require a distributor to arbitrate disputes which may arise between it and the brewer or the importer;
    9. Preclude a distributor from litigating in state or federal courts located in Kentucky or from litigating under the laws of the Commonwealth;
    10. Unreasonably discriminate or retaliate against its distributor in the application of the terms of a written agreement;
    11. Unreasonably fail to consent to the distributor’s designation of an individual as the distributor’s manager or successor-manager in accordance with nondiscriminatory and reasonable qualifications and standards; or
    12. Withdraw approval of an individual as the distributor’s manager or successor-manager without just cause.
  4. Notwithstanding the provisions in subsection (3) of this section, a brewer or importer of malt beverages may terminate an agreement with a distributor if any of the following occur:
    1. The assignment or attempted assignment by the distributor for the benefit of creditors, the institution of proceedings in bankruptcy by or against the distributor, the dissolution or liquidation of the distributor, the insolvency of the distributor or the distributor’s failure to pay for malt beverages in accordance with the agreed terms;
    2. Failure of any owner of the distributor to sell his or her ownership interest within one hundred twenty (120) days after the later of the owner having been convicted of a felony which, in the sole judgment of the brewer, may adversely affect the goodwill or interests of the distributor or the brewer, or the brewer learns of the conviction;
    3. Fraudulent conduct of the distributor in any of its dealings with the brewer or the brewer’s products;
    4. Revocation or suspension for more than thirty-one (31) days of the distributor’s federal basic permit or any state or local license required of the distributor for the normal operation of its business;
    5. Sale of malt beverages by a distributor outside its sales territory prescribed by the brewer in accordance with KRS 244.585 ; or
    6. Without brewer consent, the distributor engaging in changes in ownership or possession of ownership interests, the establishment of trusts or other ownership interest, entering into buy-sell agreements, or granting an option to purchase an ownership interest.
  5. During the term of a contract or agreement between the brewer or importer and a distributor, including contracts or agreements in existence prior to July 13, 2004, the distributor shall, in accordance with the provisions of such contract or agreement, maintain physical facilities and personnel so that the product and brand of the brewer or importer are properly represented in the territory of the distributor, the reputation and trade name of the brewer or importer are reasonably protected, and the public is serviced. The brewer, importer, and distributor shall act in good faith at all times during the term of the contract or agreement.
  6. Any brewer, importer, or distributor who violates any provision of this section shall pay the injured brewer, importer, or distributor all reasonable damages sustained by it as a result of the brewer’s, importer’s, or distributor’s violations, together with the costs and attorney’s fees incurred by the brewer, importer, or distributor in protecting its right. If a brewer or importer violates subsection (3)(a), (b), or (g) of this section, the injured distributor’s reasonable damages shall be the fair market value of the distributor’s business. In determining the fair market value of the distributor’s business, proper and full consideration shall be given to all elements of value, including goodwill and going-concern value.

History. Enact. Acts 2004, ch. 120, § 3, effective July 13, 2004; 2005, ch. 142, § 4, effective June 20, 2005.

Distribution Agreements After June 29, 2021

244.608. Distribution agreements after June 29, 2021 — Nonapplicability of KRS 244.602 to 244.606 — Requirements for distribution agreements between microbrewer and distributor.

  1. As of June 29, 2021, KRS 244.602 to 244.606 shall not apply to any new distribution agreement, or the renewal of an existing distribution agreement, between a distributor of malt beverages and a microbrewery. Any existing distribution agreement between a distributor of malt beverages and a microbrewery shall be deemed to renew upon the earlier of January 1, 2022, or the renewal date set forth in that agreement.
  2. Every distribution agreement providing for and specifying the rights and duties of a microbrewer and distributor with and in regard to the sale of the products of the microbrewer within the Commonwealth of Kentucky shall be in writing. The terms and provisions of the agreement shall comply with and conform to this section.
  3. A distribution agreement between a microbrewer and a distributor shall not:
    1. Require the microbrewer or distributor to agree to renew the distribution agreement at the expiration of a term;
    2. Except as set forth in subsection (4) or (9) of this section, permit a microbrewer or distributor to terminate a distribution agreement without first giving written notice of any alleged deficiency and giving the other party a reasonable opportunity to cure the alleged deficiency. For purposes of this paragraph, a reasonable opportunity to cure shall be sixty (60) days from the date a notice of an alleged deficiency is received;
    3. Permit the assignment of the distribution agreement, in part or in whole, without first obtaining the consent of the other party, which shall not be unreasonably withheld provided the assignee possesses the financial, technical, and operational skills necessary to perform under the distribution agreement;
    4. Permit the microbrewer or distributor to unilaterally amend a distribution agreement, or any document referred to or incorporated by reference in the distribution agreement;
    5. Require a microbrewer or distributor to mediate or arbitrate disputes which may arise between them, though nothing shall prohibit the parties from resolving the dispute by retaining an independent mediator or arbitrator while equally sharing the cost; or
    6. Prohibit a microbrewer or distributor from litigating in state or federal courts located in Kentucky or from litigating under the laws of the Commonwealth.
  4. A microbrewer may terminate a distribution agreement according to the terms of the agreement or in any of the following instances:
    1. The assignment or attempted assignment by the distributor for the benefit of creditors, the institution of proceedings in bankruptcy by or against the distributor, the dissolution or liquidation of the distributor, the insolvency of the distributor, or the distributor’s failure to pay for malt beverages in accordance with law;
    2. The felony conviction of a distributor, or any of its owners who participate in the distributor’s management which, in the sole judgment of the microbrewer, may adversely affect the goodwill or interests of the microbrewer;
    3. Fraudulent or discriminatory conduct of the distributor in any of its dealings with a microbrewery or a microbrewer’s products;
    4. Revocation or suspension for more than thirty-one (31) days of the distributor’s federal basic permit or any state or local license required of the distributor for the normal operation of its business;
    5. Sale of malt beverages by a distributor outside its sales territory prescribed by the distribution agreement in accordance with KRS 244.585 ;
    6. Without microbrewer consent, the distributor effectuates a change in ownership or possession of ownership interests, establishes a trust or other ownership interest, enters into buy-sell agreements, or grants an option to purchase an ownership interest; provided, however, this right of termination shall not apply to the transfer, creation, sale, gift, or grant of an ownership interest, or option thereon, of a total aggregate of less than ten percent (10%) of the total existing ownership or possession of ownership interest of the distributor or intrafamily transfer; or
    7. In the case of a microbrewer whose products represent five percent (5%) or less of a distributor’s gross annual sales, the giving of a forty-five (45) day notice of termination and the payment to the distributor of reasonable compensation, which shall be equivalent to the fair market value of the distributor’s total investment in the microbrewer’s products being terminated. For purposes of this subsection, fair market value shall be calculated based on a multiple of the distributor’s gross profits from the sale of the microbrewer’s products in the twelve (12) months immediately prior to the date of the microbrewer’s written notice of intent to terminate. The fair market valuation shall be based on an arm’s length transaction entered into without duress or threat of termination, and shall include all elements of value, including goodwill and going-concern value. If the parties are unable to agree on the fair market valuation, the dispute shall be resolved as provided in KRS 244.609 . A microbrewer terminating an agreement under this paragraph may do so not more than once in a thirty-six (36) month period and shall not be deemed to be in violation of subsection (5)(b) of this section.
  5. A microbrewer or a distributor of malt beverages shall not:
    1. Unreasonably discriminate or retaliate against the other party in the application or performance of the terms of a distribution agreement;
    2. Require or request payment, convey money or other consideration, or accept any sum of money or other consideration in exchange for the right to distribute the product or products of the microbrewer in a designated territory, provided that the following items shall not be prohibited:
      1. A microbrewer’s request to a distributor to pay or contribute any sum of money for or toward the cost of marketing the product or products of the microbrewer so long as the money contributed by the distributor is spent by the microbrewer in a manner and at such times as agreed to in writing by the microbrewer and the distributor; and
      2. Any payment pursuant to subsection (4)(g) of this section;
    3. Unreasonably withhold timely consent to a proposed sale or transfer, in part or whole, of the stock or assets of the microbrewer or distributor, and in no event shall the microbrewer or distributor take more than thirty (30) days to approve or disapprove the proposed sale or transfer after the microbrewer or distributor has received written notice of the proposal and received all requested information to enable the microbrewer or distributor to pass upon the purchaser’s or transferee’s financial, technical, and operational skills necessary to perform under the distribution agreement; or
    4. Fail to give at least thirty (30) days’ advance notice of a change in ownership or possession of an ownership interest, whether by sale, transfer, gift, or grant of an option.
  6. A distributor of malt beverages shall not:
    1. Refuse to enter into a distribution agreement with a microbrewery, in whole or in part, except for good cause and in good faith; or
    2. Continue to distribute the microbrewer’s products thirty (30) days after receiving a notice of termination of a distribution agreement. However, any sums owed to the distributor by the microbrewer or another distributor assuming the obligation to distribute the microbrewer’s product within the territory encompassed by the terminated distribution agreement shall still be owed.
  7. A microbrewer shall not enter into a contract with more than one (1) distributor to sell any of its products or brands within the same territory or area at the same time. This subsection shall not apply to contracts entered into prior to January 1, 2004, or future renewals of those contracts to the extent the existing contract and the future renewal allow different distributors to sell some but not all of the brewer’s or importer’s brands or brand extensions within the same territory or area at the same time.
  8. A distributor that enters into or renews a distribution agreement with a microbrewer following June 29, 2021, shall maintain physical facilities and personnel so that:
    1. The product and brand of the microbrewer are reasonably represented in the territory of the distributor for which the distribution agreement applies;
    2. The reputation and trade name of the microbrewer are reasonably promoted and protected; and
    3. The public is fully serviced.
  9. A distributor may terminate a distribution agreement according to the terms of the agreement or in any of the following instances:
    1. The assignment or attempted assignment by the microbrewer for the benefit of creditors, the institution of proceedings in bankruptcy by or against the microbrewer, the dissolution or liquidation of the microbrewer, or the insolvency of the microbrewer;
    2. The felony conviction of a microbrewer, or any of its owners who participate in the microbrewer’s management which, in the sole judgment of the distributor, may adversely affect the goodwill or interests of the distributor;
    3. Fraudulent or discriminatory conduct of the microbrewer in any of its dealings with a distributor or a distributor’s brands;
    4. Revocation or suspension for more than thirty-one (31) days of the microbrewer’s federal basic permit or any state or local license required of the microbrewer for the normal operation of its business;
    5. Without distributor consent, the microbrewer effectuates a change in ownership or possession of ownership interests, establishes a trust or other ownership interest, enters into buy-sell agreements, or grants an option to purchase an ownership interest; provided, however, this right of termination shall not apply to the transfer, creation, sale, gift, or grant of an ownership interest, or option thereon, of a total aggregate of less than ten percent (10%) of the total existing ownership or possession of ownership interest of the microbrewer or intrafamily transfer; or
    6. In the case of a microbrewer whose products represent five percent (5%) or less of a distributor’s gross annual sales, the giving of a forty-five (45) day notice of termination and payment to the microbrewer of reasonable compensation, which shall be determined to be a sum equal to five (5) times the monthly average of purchases from the microbrewer over the twelve (12) months prior to the termination.
  10. In the event of a termination of a contract between a microbrewer and a distributor, the microbrewer shall repurchase all of its product still in the distributor’s inventory upon return from the distributor, provided that the “best by”, “expiration”, or other similar printed date is greater than thirty (30) days after the date of the return of the product.
  11. Any microbrewer or distributor that violates any provision of this section shall pay the injured party all reasonable damages sustained as a result of the microbrewer’s or distributor’s violations, together with the costs and attorneys’ fees incurred by the microbrewer or distributor in protecting its right.

HISTORY: 2021 ch. 34, § 2, effective June 29, 2021.

244.609. Resolution of disputes between microbrewer and distributor — Arbitration.

In the event the microbrewer and distributor cannot agree on the fair market value as set forth in KRS 244.608(4)(g), then the parties shall arbitrate in accordance with the following:

  1. If the parties fail to reach an agreement not later than thirty (30) days after the distributor receives the microbrewer’s written notice to terminate, the distributor or microbrewer may send a written notice to the other party and the American Arbitration Association, or its successor in interest, declaring the party’s intention to proceed with final and binding arbitration administered by the American Arbitration Association under the American Arbitration Association’s Commercial Arbitration Rules. Thereafter, an arbitration shall be held for the purpose of determining the fair market value of the distributor’s total investment in the microbrewer’s products being terminated. For the purpose of this subsection, fair market value shall be the value that would be determined in an arm’s length transaction entered into without duress or threat of termination of the existing distributor’s right and shall include all elements of value, including goodwill and going-concern value.
  2. Notice of intent to arbitrate shall be sent, as provided in subsection (1) of this section, not later than thirty-five (35) days after the distributor receives written notice to terminate. The arbitration proceeding shall conclude not later than forty-five (45) days after the date the notice of intent to arbitrate is mailed to a party.
  3. Any arbitration held pursuant to this section shall be conducted in the city within Kentucky that:
    1. Is closest to the distributor; and
    2. Has a population of more than twenty thousand (20,000).
  4. Any arbitration held pursuant to this section shall be conducted before one (1) impartial arbitrator to be selected by the American Arbitration Association. The arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association.
  5. An arbitrator’s award in any arbitration held pursuant to this section shall be monetary only and shall not enjoin or compel conduct. Any arbitration held pursuant to this section shall be instead of all other remedies and procedures.
  6. The cost of the arbitrator and any other direct costs of any arbitration held pursuant to this section shall be equally divided by the parties engaged in the arbitration. All other costs shall be paid by the party incurring them.
  7. The arbitrator in any arbitration held pursuant to this section shall render a decision not later than thirty (30) days after the conclusion of the arbitration, unless this time period is extended by mutual agreement of the parties or by the arbitrator. The decision of the arbitration is final and binding on the parties. Under no circumstances may the parties appeal the decision of the arbitrator.
  8. A party who fails to participate in the arbitration hearings in any arbitration held pursuant to this section waives all rights the party would have had in the arbitration and is considered to have consented to the determination of the arbitrator.
  9. Nothing in this section shall be construed to limit or prohibit good-faith settlements voluntarily entered into by the parties.

HISTORY: 2021 ch. 34, § 3, effective June 29, 2021.

Products Containing Alcohol

244.650. Sale of confections or candies containing alcohol — Sales to minors prohibited — Labeling required.

  1. Notwithstanding any other provision of the statutes, confections or candies having a liquid filling or liquid center and containing more than one-half percent (0.5%) but not more than five percent (5%) of alcohol by volume or weight may be sold at premises whether or not licensed under the provisions of KRS 243.030 and 243.040 .
  2. No confection or candy described in this section shall be sold, given or delivered to any person under twenty-one (21) years of age. Any violation of this section shall be considered an unlawful transaction with a minor in the third degree pursuant to KRS 530.070 .
  3. No confection or candy described in this section shall be sold or offered for sale in this state unless the product has a prominently displayed label containing the statement: “SALE OF THIS PRODUCT TO PERSONS UNDER 21 YEARS OF AGE IS UNLAWFUL.”

History. Enact. Acts 1988, ch. 433, § 1, effective July 15, 1988.

244.652. Prohibition of possession, sale, or use of powdered or crystalline alcoholic beverage products.

No person shall possess, sell, offer for sale, or use any powdered or crystalline alcoholic beverage product.

HISTORY: 2016 ch. 80, § 28, effective July 15, 2016.

Penalties

244.990. Penalties.

  1. Any person who, alone or acting through another, directly or indirectly, violates any of the provisions of this chapter for which no other penalty is provided shall, for the first offense, be guilty of a Class B misdemeanor; and for the second and each subsequent violation, the person shall be guilty of a Class A misdemeanor. The penalties provided for in this subsection shall be in addition to the revocation of the offender’s license. If the offender is a corporation, joint stock company, association, fiduciary, limited liability company, or other business entity recognized by law, the principal officer or officers responsible for the violation may be imprisoned.
  2. Any person who violates KRS 244.170 shall, upon the first conviction, be guilty of a Class A misdemeanor. Upon a second conviction the person shall be guilty of a Class D felony. Upon the third and each subsequent conviction, the person shall be guilty of a Class C felony.
  3. Any person who violates any of the provisions of KRS 244.480 to 244.600 shall be guilty of a violation.
  4. Except as provided in subsection (7) of this section, any person, firm, corporation, limited liability company, or other business entity recognized by law violating any provision of KRS 244.083 and 244.085 shall be guilty of a violation and each violation shall constitute a separate offense.
  5. Except as provided in subsection (7) of this section, any person who violates the provisions of KRS 244.085 shall, for the first offense, be guilty of a violation, and for each subsequent offense shall be guilty of a Class A misdemeanor.
  6. Any person who violates KRS 244.125 shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for each subsequent offense.
  7. For any person under the age of eighteen (18) years, a violation of KRS 244.085(1), (2), (3), (4), or (7) shall be deemed a status offense and shall be under the jurisdiction of the juvenile session of the District Court or the family division of the Circuit Court, as appropriate.

HISTORY: 2554b-67, 2554b-152, 2554b-196, 2554b-219: amend. Acts 1968, ch. 62, § 6; 1972, ch. 286, § 3; 1980, ch. 254, § 10; 1982, ch. 312, § 10, effective July 1, 1986; 1986, ch. 336, § 10, effective July 15, 1986; 1992, ch. 463, § 32, effective July 14, 1992; 1994, ch. 396, § 7, effective July 15, 1994; 1998, ch. 121, § 35, effective July 15, 1998; 2008, ch. 87, § 23, effective July 15, 2008; 2017 ch. 62, § 113, effective June 29, 2017.

Compiler’s Notes.

Acts 1986, ch. 336, § 12, effective July 1, 1986, repealed both Acts 1980, ch. 254 and Acts 1982, ch. 312, which acts amended this section. Acts 1980, ch. 254 had previously also been repealed by Acts 1982, ch. 312, effective July 1, 1982.

Acts 1986, ch. 336, § 13 provided that:

“It is the intent of the General Assembly that the amendments and repealers of Acts 1980, Chapter 254 and Acts 1982, Chapter 312 not become effective and that the statutes affected thereby remain as not amended or not repealed, except as affected by this Act or by legislation other than Acts 1980, Chapter 254; Acts 1982, Chapter 312; and Acts 1984, Chapter 205, passed during 1980, 1982 and 1984.”

NOTES TO DECISIONS

1.Operation of Carrier.

This section only provides a penalty for the offender and does not prescribe course of conduct for the operation of a carrier. Louisville Taxicab & Transfer Co. v. Jackson, 251 S.W.2d 874, 1952 Ky. LEXIS 946 ( Ky. 1952 ).

Cited:

York v. Holliday, 311 Ky. 206 , 223 S.W.2d 754, 1949 Ky. LEXIS 1096 ( Ky. 1949 ); George v. Commonwealth, 311 Ky. 234 , 223 S.W.2d 906, 1949 Ky. LEXIS 1112 ( Ky. 1949 ); Tackett v. Commonwealth, 261 S.W.2d 298, 1953 Ky. LEXIS 1004 ( Ky. 1953 ); Sterling Brewers, Inc. v. Williamson, 269 S.W.2d 249, 1954 Ky. LEXIS 984 ( Ky. 1954 ); Kilburn v. Colwell, 396 S.W.2d 803, 1965 Ky. LEXIS 134 ( Ky. 1965 ).

Opinions of Attorney General.

A police officer may, if necessary in the discharge of his duty, use reasonable force to gain access to the public areas of licensed taverns during the hours of licensed operation. OAG 67-65 .

A police officer of a city of the second class, acting in accordance with his general duties to preserve the peace, may take steps to secure a clear view of the entire premises of an establishment operating under license to sell alcoholic beverages by the drink. OAG 67-65 .

That portion of a city ordinance which imposed a lesser punishment for the sale of alcoholic beverages to minors than the state statute on the same subject was unconstitutional. OAG 67-273 .

A prisoner sentenced to five (5) days in jail may be required to spend additional days in jail to pay the court costs. Where hard labor is a part of the judgment of conviction in misdemeanor cases, the prisoner (if a male) shall be permitted to satisfy his fine and costs at the rate of $2.00 per day. See former KRS 431.140 (see now 533.070 ). When not worked, the prisoner must remain in jail until the imprisonment is satisfied and the fine and costs are paid. Such prisoner shall receive a credit of $1.00 toward payment of the fine and costs, for each day he remains in jail, and may pay or replevy the fine and costs at any time. See former KRS 441.190 (see now 534.060 ). OAG 70-200 .

A state university campus is a public place and the school buildings located thereon are public buildings pursuant to KRS 244.020 (now repealed), so that the drinking of alcoholic beverages on the campus or in the buildings is a violation of this section and punishable in the manner provided herein. OAG 74-39 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, State Action Immunity and Preemption in Antitrust Challenges to State Pricing Laws: Alcoholic Beverage Control Board v. Taylor Drug Stores, Inc., 71 Ky. L.J. 703 (1982-83).

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, §§ 9.39 — 9.41A.

244.992. Medical amnesty for persons reporting an alcohol overdose.

  1. A person shall be immune from prosecution for the criminal offenses identified in subsection (2) of this section if:
    1. A law enforcement officer has contact with the person because the person:
      1. Requests emergency medical assistance for himself or herself or another person;
      2. Acts in concert with another person who requests emergency medical assistance; or
      3. Appears to be in need of emergency medical assistance and is the individual for whom the request is made;
    2. The request is made for an individual who reasonably appears to be in need of medical assistance due to alcohol consumption; and
    3. The person described in paragraph (a) of this subsection, if physically capable:
      1. Provides his or her own full name if requested by emergency medical assistance personnel or law enforcement officers;
      2. Provides any other relevant information requested by the law enforcement officer that is known to such person;
      3. Remains with, or is, the individual who reasonably appears to be in need of medical assistance due to alcohol consumption until professional emergency medical assistance is provided; and
      4. Cooperates with emergency medical assistance personnel and law enforcement officers.
  2. A person who meets the qualifications set forth in subsection (1) of this section shall be immune from criminal prosecution for the following offenses:
    1. Alcohol intoxication under KRS 222.202(1);
    2. Drinking alcoholic beverages in a public place under KRS 222.202(2);
    3. Offenses related to possession of alcoholic beverages by a minor under twenty-one (21) years of age under KRS 244.085 ; and
    4. Providing alcohol to minors under twenty-one (21) years of age or assisting minors under twenty-one (21) years of age to purchase alcohol under KRS 244.085 or 530.070 .

History. Enact. Acts 2013, ch. 121, § 81, effective June 25, 2013.