Request By:
Mr. Thomas M. Bertram, II
Stanley and Bertram
317 Second Street
Vanceburg, Kentucky 41179
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
This is in response to your request for an opinion of this office regarding the authority of the City of Vanceburg to pass an ordinance proscribing the sale of alcoholic beverages within its boundaries after 10 P.M. It is my understanding, pursuant to KRS 81.010, that Vanceburg is a city of the fourth class.
The time when retail establishments engaged in the sale of alcoholic beverages are to be closed is established by KRS 244.290(1), and KRS 244.480(2) and (3). The former statute provides,
No premises for which there has been granted a license for the sale of distilled spirits or wine at retail shall be permitted to remain open for any purpose between midnight and 8 a.m., or at any time during the twenty-four hours of a Sunday, or during the hours the polls are open on any regular, primary, school or special election day, provided, that if a licensee provides a separate department within his licensed premises capable of being locked and closed off, within which is kept all stocks of distilled spirits and wine, and all fixtures and apparatus connected with his business as a licensee, and said department is kept locked during the times mentioned above, he shall be deemed to have complied with this section; except that the city council, board of aldermen or other municipal legislative body of cities of the first, second or third class in which traffic in distilled spirits and wine is permitted under KRS Chapter 242 shall have the exclusive right and power, by ordinance duly enacted, to establish the hours and times in which distilled spirits and wine may be sold within its jurisdictional boundaries, and except further that the fiscal court of each county in which cities of the first, second or third class are located shall have the exclusive right and power to establish the hours and times in which distilled spirits and wine may be sold over that portion of the county which lies without the corporate limits of such cities, except any portion in which distilled spirits and wine are prohibited from being sold. Provided, however, that no distilled spirits or wine may be sold in any portion of the counties containing cities of the first, second or third class during the twenty-four hours between 6 a.m. Sunday and 6 a.m. Monday, except as provided in subsection (2) of this section, and that no distilled spirits or wine may be sold on any election day while the polls are still open; and provided, also, that all stocks of distilled spirits and wine must be kept locked during the hours which the licensee is prohibited from selling same. (Emphasis added).
Similarly, KRS 244.480(2) and (3), pertaining to malt beverages, provides,
(2) The legislative body of a city of the first, second or third class in which traffic in malt beverages is permitted by KRS Chapter 242, shall have the exclusive power, subject to subsection (3), by ordinance, to establish the times in which malt beverages may be sold within its jurisdictional boundaries. The fiscal court of each county in which a city of the first, second or third class is located shall have the exclusive power, subject to subsection (3) to establish the times in which malt beverages may be sold in that portion of the county which lies without the corporate limits of such a city, except any portion in which malt beverages are prohibited by KRS Chapter 242 from being sold.
(3) Notwithstanding subsections (1) and (2):
(a) The hours so fixed by the legislative body of a city of the first, second or third class, and by fiscal courts, shall not prohibit the sale, gift or delivery of any malt beverages between 6 a.m. and midnight during week days; and
(b) No malt beverages shall be sold on any election day while the polls are still open. (Emphasis added).
It is readily apparent upon the reading of these statutes, that 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 that 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 provided by both statutes to the mandatory closing hours therein set out was 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.
The power of cities of the first, second, and third class to regulate the hours of retail alcoholic beverage licenscee was upheld in City of Newport v. Tye, Ky., 335 S.W.2d 340 (1960). No such power to regulate hours was, or has been, granted to cities of the fourth class.
Since only cities of the first three classes were granted this authority, it must be concluded as a matter of legislative will that cities of the fourth class were intentionally denied such authority. It is therefore our opinion that retail establishments selling alcoholic beverages need only close between the hours specified in KRS 244.290 and KRS 244.480, unless directed otherwise by an ordinance duly enacted by a municipal legislative body in a city of the first three classes, or a fiscal court of a county containing such a city. A city of the fourth class attempting to exercise such authority would be acting ultra vires, and the ordinance thereby enacted void.