Request By:
Edward A. Farris, Commissioner
Department of Alcoholic Beverage Control
123 Walnut Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Suzanne Guss, Assistant Attorney General
This is in response to your recent request for an opinion of this office regarding the following question:
"Pursuant to KRS 243.450 and 241.080, and other applicable statutes, may the Distilled Spirits Administrator, absent specific authority from the General Assembly, utilize a lottery system in the award of liquor licenses if, in his or her sound discretion, a lottery system among qualified applicants is the best manner of selection for the granting of such licenses?"
The answer to this question is "no." The Department of Alcoholic Beverage Control is a statutory administrative department of state government. KRS 241.015. The Department and the Alcoholic Beverage Control Board are creatures of statute and are authorized to administer the law only as written.
Johnson v. Correll, Ky., 332 S.W.2d 843 (1960);
Department for Natural Resources v. Stearns Coal, Ky., 563 S.W.2d 471 (1978). A power not conferred is as plainly prohibited as a power expressly forbidden.
Johnson v. Correll, supra.
KRS 243.450(2) provides:
A license that might be issued under KRS 243.020 to 243.670 may be refused by a state administrator for any reason which he, in the exercise of his sound discretion, may deem sufficient. Among those factors that the administrator shall consider in the exercise of his discretion are: public sentiment in the area; number of licensed outlets in the area; potential for future growth; type of area involved; type of transportation available; and financial potential of the area.
This statute allows the refusal of a license only after the administrator has exercised his or her discretion by considering certain substantive factors, several of which are listed in the statute. The statute does not provide the administrator with the authority to reject applicants for licenses by any other means. Therefore, the administrator does not possess the statutory authority to accept or reject certain applicants by use of a lottery system.