Request By:
Mr. Ray A. Cohn
Frankfort Bureau Chief
Lexington Herald
Room 242, Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
This is in response to your request of September 13th for an opinion of this Office relative to the sale and consumption of alcoholic beverages at the Kentucky Horse Park. You query,
1) Whether liquor may be sold legally in a state park or on state property, and
2) Whether the state may legally grant a license to any individual or group to sell liquor in a state park or on state property?
We have chosen to direct our response to your inquiries as they specifically relate to the Horse Park.
Our research has revealed that no statute or administrative regulation precludes the sale or consumption of alcoholic beverages at the Park. The only statutory provision having any possible application to your questions is KRS 244.020(1). It provides,
No person shall drink any alcoholic beverage in any public place, in or upon any passenger coach, street car or other vehicle commonly used for the transportation of passengers, or in or about any depot, platform or waiting room. (Emphasis added)
This statute has remained practically unaltered since its 1922 enactment. Notwithstanding a legitimate argument that the language following the highlighted portion of this provision limits the definition of "public place" to the transportation field, other reasons exist for its non-application to the issues you present.
It is initially noted that this statute precludes the consumption of alcoholic beverages in a public place but not the sale of such beverages. It has been editorialized that the idea that liquor may be sold but not consumed is absurd. Logic necessitates our agreement, yet the distinction exists.
What is a public place? This is of utmost importance. A definition of the term is noticeably absent from the alcoholic beverage statutes (KRS Chapters 241 through 244). However the meaning of "public place" has been addressed in other statutes. For instance in KRS 525.010(2), a penal code provision, it is defined as,
A place to which the public or a substantial group of persons has access and includes but is not limited to highways, transportation facilities, schools, places of amusements, parks, places of business, playgrounds and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.
Kentucky's courts have had several occasions to address the meaning of "public place" as it relates to alcoholic beverages. In
Lewis v. Commonwealth, Ky., 247 S.W. 748, 751 (1923), the court observed, "Manifestly that language [public place] means a place exposed to the public, and where the public gather together or pass to and fro. . . ." Other decisions have held a public or private road, a combination beer tavern and restaurant, and a barroom to be public places.
Tackett v. Commonwealth, Ky., 261 S.W.2d 298 (1953);
Ginter v. Commonwealth, Ky., 262 S.W.2d 178 (1953);
Hahn v. Commonwealth, Ky., 453 S.W.2d 736 (1970). In an opinion of this Office, OAG 77-564, a banquet room rented for a dinner, dance, or other similar use, which was open to the general public for an admission fee, was viewed to be a public place.
Based upon the foregoing there is little doubt but that the Kentucky Horse Park constitutes a public place. At first blush one would conclude that consumption of alcoholic beverages at this location would be a violation of KRS 244.020(1). However one may then ask, how could this be true if a bar is also considered to be a public place? Certainly the very purpose of a bar is the sale and consumption of alcoholic beverages.
We view the presence of a license to sell such beverages, and it concomitant regulation by the Alcoholic Beverage Control Board, to constitute an exception permitting an individual to consume spirits in a bar, restaurant, et cetera, notwithstanding the fact that such establishments are public places. The legislature has properly delegated the authority for the issuance of such licenses to the Department for Alcoholic Beverage Control. Where a proper license has been correctly issued a person may consume alcoholic beverages on the premises where purchased. This is certainly inferred by KRS 243.020(3), which provides,
No person, conducting a place of business patronized by the public, who does not hold a license to sell distilled spirits and wine by the drink, shall permit any person to sell, barter, loan, give away or drink distilled spirits or wine on the premises of his place of business. (Emphasis added.)
To proscribe the consumption of alcoholic beverages on properly licensed premises based upon KRS 244.020(1) would be contrary to the very purpose of the licensing statutes.
In its recent attempt to obtain a temporary restraining order and permanent injunction prohibiting the sale of alcoholic beverages at the Horse Park, the Cane Run Baptist Church argued, in part, that KRS 244.020(1) did preclude the sale and consumption of spirits at that location. However Judge George Barker observed,
I would also be tentatively of the opinion that the statute which is basically relied on by the Plaintiff which is 244.020 which provides, at any public place, does not have application to a public place where there is alcoholic beverages sold under a valid license . . . . And I say valid and I think the license is valid until it is established that it is invalid. (Emphasis added.) (Cane Run Baptist Church v. Equestrian Events, Inc., Fayette Circuit Court, Hon. George E. Barker presiding, September 14, 1978, partial transcript of hearing at page 5.)
It is therefore our opinion that where an individual or group, such as Equestrian Events, Inc., is properly licensed to sell alcoholic beverages at the Horse Park, a park located in "wet" territory, such beverages may be sold and consumed on those premises. Alcoholic beverages can never be sold in a "dry" territory regardless of the nature of the property.
Your second inquiry concerns the propriety of issuing licenses to sell alcoholic beverages at the Horse Park during the World Championship Three-Day Event. As has already been noted, no statute or administrative regulation precludes the sale of alcoholic beverages at the Horse Park. The Kentucky Department of Parks, which has responsibility for the state park system, voiced no disagreement or concern regarding the plan to sell alcoholic beverages at the Park. The issuing authority was thereby guided by the provisions of KRS Chapter 243, dealing with licensure. 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. Once issued the license is subject to the regulation of the Board and is thereby controlled in the public interest.
The alcoholic beverage licenses held by Equestrian Events, Inc., the corporation which staged the Three-Day Event under state contract, were special temporary licenses issued pursuant to KRS 243.260 and 243.290. The former provision, dealing with distilled spirits and wine, and the latter, concerning malt beverages, provide in pertinent part,
A distilled spirits and wine special temporary license may be issued to any regularly organized fair, exposition, racing association, or other party, when in the opinion of the board a necessity exists. (KRS 243.260.)
A malt beverage special temporary license shall authorize the sale of malt beverages at retail for consumption on the premises of any regularly organized fair or racing association for a particular fair, race, or race meeting conducted by the association, or for special temporary occasions such as picnics, bazaars and carnivals. (KRS 243.290.)
Based upon these statutory provisions we perceive no abuse of discretion on the part of the Department of Alcoholic Beverage Control in the issuance of these licenses.
I trust that we have satisfactorily answered your inquiries in this regard.