Request By:
Hon. Walter L. Porter
Attorney at Law
Suite 201
125 Chenoweth Lane
St. Matthews, Kentucky 40207
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Rodney V. Tapp, Assistant Attorney General
In your correspondence to the Attorney General on March 3, 1978, you have requested an opinion of this office about the prohibition contained in KRS 244.090 (1) (c) against the employment of noncitizens in retail liquor outlets. You ask whether the aforesaid provision is constitutional since it would operate to prevent your noncitizen client from managing a retail liquor outlet.
KRS 244.090 provides in pertinent part as follows:
(1) No person holding any license under KRS 243.020 to 243.670 shall knowingly employ in connection with his business, in any capacity whatsoever, any person who:
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(c) Is not a citizen of the United States or has not had an actual bona fide residence in this Commonwealth for at least one year next before the date of his employment, provided the above residence requirement shall not apply to persons employed by distillers, brewers, operators of dining cars or transporters engaged in interstate commerce.
A review of Alcoholic Beverage Control Board regulations such as subsection 1 of 804 Kentucky Administrative Regulations chapter 5:030 would indicate that the durational residency requirement is properly interpreted to be separate and distinct from the citizenship requirement.
The durational residency requirement was determined to be in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by the United States District Court for the Eastern District of Kentucky. The Court in Costa v. Bluegrass Turf Service, Inc., 406 F.Supp 1003 (E.D. Ky., 1975), had occasion to discuss the relationship between the Equal Protection Clause and the vast power of the various states over alcoholic beverages. The Court in Costa observed as follows:
The employer in this action does not attempt to meet this burden. The remaining defendants contend that the bona fide and durational residency requirements further a legitimate state interest in the control and sale of alcoholic beverages as recognized by the Twenty-First Amendment. This argument must be rejected. First, it is not sufficient for the state to show that these durational residency requirements merely further a substantial state interest. Dunn, supra at 343, 92 S. Ct. 995. Secondly, although the broad sweep Twenty-First Amendment has been recognized as conferring something more than normal state authority over public health, welfare, or morals, it is equally well recognized that said Amendment does not supersede all provisions of the United States Constitution in the area of liquor violations. California v. LaRue, 409 U.S. 109, 114-115, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). Finally, the Commonwealth has failed to provide any basis for determining that its interests in public health, welfare or morals can only be served through imposition of the durational residency requirements, considering the available rational alternatives, particularly where that state interest is implemented in terms impairing plaintiffs' desire to exercise their right of travel for purposes of legitimate continuing employment with their existing employer. Cf. Sosna v. Iowa, 419 U.S. 393, 404-410, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975).
Similarly, the Supreme Court of Kentucky indicated in Commonwealth, Alcoholic Beverage Control Board v. Burke, Ky., 481 S.W.2d 52 (1972), that the Equal Protection Clause does act as a limitation on this Commonwealth's control over alcoholic beverages. In the Buke case, the Court found this Commonwealth's prohibitions against non-licensee women bartenders and against the consumption of liquor by women at a bar to be invalid with the following holding:
[W]e perceive neither a rational connection nor a fair and substantial relation between the claimed objective of the statute (to properly regulate the sale of liquor or beer) and a purely discriminatory provision prohibiting non-licensee women bartenders and the consumption at the bar of distilled spirits rather than beer by women. It therefore follows that in these discriminatory aspects the statutes concerned are unconstitutional under the Equal Protection Clause. Such discrimination is not only solely based on sex but is compounded by a nonrational discrimination within the classification (females); the state does not attempt to demonstrate any compelling interest to be served by such compounded discrimination. Therefore, in these aspects the statutes are arbitrary and violate Section 2 of the Constitution of Kentucky. Id. at 56.
The Supreme Court of the United States has taken a similar position in Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976), a case dealing with the sale of beer to women in a certain age grouping while denying sale to mem in the same grouping. The Court made the following general observation about the claimed discrimination:
It is true that California v. LaRue, 409 US 109, 115, 34 L Ed 2d 342, 93 S Ct 390 (1972), relied upon the Twenty-first Amendment to "strengthen" the State's authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances "partake more of gross sexuality than of communication," id., at 118, 34 L Ed 2d 342, 93 S Ct 390. Nevertheless, the Court has never recognized sufficient "strength" in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause. Rather, Moose Lodge No. 107 v. Irvis, 407 US 163, 178-179, 32 L Ed 2d 627, 92 S Ct 1965 (1972), establishes that state liquor regulatory schemes cannot work invidious discriminations that violate the Equal Protection Clause. 429 U.S. at 207, 208; 50 L. Ed. 2d at 413.
More importantly, the Supreme Court of the United States has in recent years rendered several decisions respecting restrictions of the various states on the employment or occupational opportunities of noncitizens or resident aliens. In re Griffiths, 413 U.S. 717, 37 L. Ed. 2d 910, 93 S. Ct. 2851 (1973); Sugarman v. Dougall, 413 U.S. 634, 37 L. Ed. 2d 853; 93 S. Ct. 2842 (1973); Foley v. Connelie, 46 U.S.L.W. 4237 (March, 1978). The concepts embodied in the Equal Protection Clause of the Fourteenth Amendment and in the Due Process Clause of the Fifth Amendment have been the underpinnings of the Court's constitutional decisions "defining the circumstances under which state and local governments may favor citizens of this country by denying lawfully admitted aliens equal rights and opportunities." Examining Board v. Flores de Otero, 426 U.S. 572, 602, 49 L. Ed. 2d 65, 85, 96 S. Ct. 2264 (1976).
These cases establish the general rule that such employment restrictions will be subject to close judicial scrutiny. However, the Court did use the primary exception to the general rule to uphold the ban of the State of New York against alien State Troopers in Foley v. Connelie, 46 U.S.L.W. 4237 (March, 1978). The Court articulated the ground upon which the total restriction would be upheld as follows:
Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those "important nonelective executive, legislative and judicial positions," held by "officers who participate directly in the formulation, execution, or review of broad public policy." Dougall, supra, at 647. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.
The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens. Id. at 4239.
The Court also held that the State need justify its classification (alien exclusion) by a showing of some rational relationship between the interest sought to be protected and the classification in cases where the employment is affected with special public interest. It is our opinion that employment in a liquor establishment is not affected with special public interest. Therefore, the alien exclusion found in KRS 244.090 (1) (c) would be subject to close judicial scrutiny.
Since the citizenship requirement serves to interfere with the ability of resident aliens to earn a livelihood, its justification must not only be compelling but substantially related to the control of alcoholic beverages in order to satisfy the dictates of the Equal Protection Clause of the United States Constitution. It is our conclusion that the Commonwealth could not demonstrate such a justification in support of the challenged provision.
Therefore, it is our opinion that the citizenship requirement for employees of liquor licensees found in KRS 244.090 (1) is a discriminatory classification. 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. In the case of In re Griffiths, 413 U.S. 717, 37 L. Ed. 2d 910, 93 S. Ct. 2851 (1973), the Supreme Court of the United States held that the states could not completely bar aliens from the practice of law. Likewise, the Commonwealth of Kentucky may not properly exclude all noncitizens from employment in the liquor industry.