Request By:
Mr. James F. Hile
"Bargains Galore"
103 East Maple Street
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Suzanne Guss, Assistant Attorney General
This is in response to your request for an opinion of this office regarding the statutory times set forth with respect to the sale of malt beverages. The questions posed are (1) whether retailers of malt beverages in the fourth class city of Nicholasville may sell malt beverages until midnight even though some retailers close at an earlier hour; and (2) whether a fourth class city may enact an ordinance in violation of state law pertaining to hours of sale.
KRS 244.480(1) provides that retailers may not sell malt beverages between midnight and 6 a.m. or on Sunday or election days while polls are open. KRS 244.480(2) and (3) also provide:
(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).
The only exception provided by the statute to the mandatory closing hours set forth is the authority to establish different hours of operation given exclusively to legislative bodies of first, second or third class cities or the fiscal court of each county in which a city of the first, second or third class is located. This authority has been granted only to cities of the first three classes. Cities of the fourth class are restricted by the hours set forth in KRS 244.480(1). Therefore, a city of the fourth class, such as Nicholasville, attempting to exercise such authority would be acting ultra vires, and any resulting ordinance would be void. We would point out, however, that it is within the retailer's discretion to remain open until midnight, nothwithstanding the early hour closing practices of his competitors.