Request By:
Mr. Bernard Keene, Commissioner
Department of Alcoholic Beverage Control
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
Please excuse our delay in responding to your request for an opinion of this office regarding potential conflicts between the 1978 enactment of House Bill 100, as it pertains to licensing and public employment qualifications, and House Bill 1, dealing with alcoholic beverage control licensing procedures.
Our review of this legislation indicates that while both acts address overlapping subject matters to some extent, they do not necessarily conflict.
House Bill 100 established anew KRS Chapter 335B. Subsection one thereof defines several terms relevant to the issue here presented. These definitions provide, to wit:
Occupation includes all occupations, trades, vocations, professions, businesses, or employment of any kind for which a license is required to be issued by the Commonwealth of Kentucky, its agents, or political subdivisions.
License includes all licenses, permits, certificates, registrations, or other means required to engage in an occupation which are granted or issued by the Commonwealth of Kentucky, its agents or political subdivisions before a person can pursue, practice, or engage in any occupation.
Public employment includes all employment with the Commonwealth of Kentucky, its agencies, or political subdivisions.
Conviction of a crime shall be limited to convictions of felonies, high misdemeanors, and misdemeanors for which a jail sentence may be imposed. No other criminal conviction shall be considered unless moral turpitude is involved.
Hiring or licensing authority shall mean the person, board, commission, or department of the Commonwealth of Kentucky, its agencies or political subdivisions, responsible by law for the hiring of persons for public employment or the licensing of persons for occupations.
The question becomes one of whether these definitions and the qualification provisions of House Bill 100 apply to applicants for licenses to do business in alcoholic beverages. It is our opinion that they do not.
Statutes enacted at the same legislative session "are presumed to be imbued with the same spirit and activated by the same policy, and must be construed if possible, so as to effectuate both acts." State Property and
Building Commission v. Hays, Ky., 346 S.W.2d 3, 6 (1961).
The right of the states to regulate traffic in alcoholic beverages has long been recognized. The manufacture and sale of such beverages has been described in Kentucky as being in a class by itself, "subject to strict regulation and broader discretionary administrative control than other lawful occupations. "
Alcoholic Beverage Control Board v. Woosley, Ky., 367 S.W.2d 127, 128 (1963). One dealing in alcoholic beverages does so under a highly guarded privilege and not under an inherent right.
Harris v. Commonwealth, Ky., 199 S.W.2d 429 (1947).
The intent of House Bill 100 would appear to relate only to such professions as those contained in Title XXVI of Kentucky's Statutes. Included therein are KRS Chapters 311 through 335. A business involving alcoholic beverages, peculiar to itself, must and should be regulated by specific provisions. The legislature clearly intended such a result by enacting House Bill 1.
Contrasting Section 2 of House Bill 100 with Section 12 of House Bill 1 poses a possible conflict in only one regard. House Bill 100 provides,
(1) No person shall be disqualified from public employment, nor shall a person be disqualified from pursuing, practicing, or engaging in any occupation for which a license is issued solely because of a prior conviction of a crime, unless the crime for which convicted is one described in Section 1 (4) [See definition of "conviction of crime" above] of this Act or otherwise directly relates to the position of employment sought or the occupation for which the license is sought.
House Bill 1 states,
No person shall become a licensee under KRS 243.020 to 243.670 who:
(1) Has been convicted of any felony or misdemeanor directly or indirectly attributable to the use of alcoholic beverages within two years preceding the application.
House Bill 1 would appear to be less onerous than House Bill 100 in this regard in that it contains a two year limitation period, after which one convicted of a crime could be issued a license. The latter act leaves such a determination to the unguided discretion of the licensing authority.
The remaining provisions of KRS 243.100 contained in Section 12 of House Bill 1, and relating to the age of the license applicant, and whether a previous license granted by the Board had been revoked within the previous two years, are clearly justified under the state's police powers in providing for the adequate regulation of alcoholic beverages.
In summary it is our opinion that the Department of Alcoholic Beverage Control should follow the guidelines established under Section 12 of House Bill 1, i.e. the amended version of KRS 243.100, in its issuance of licenses.