Request By:
Hon. John J. Chewning
City Attorney
603 South Main Street
P.O. Box 573
Hopkinsville, Kentucky 42240
Opinion
Opinion By: David L. Armstrong, Attorney General; Suzanne Guss, Assistant Attorney General
This is in response to your request for an opinion of this office as to whether the City of Oak Grove, a fifth class city, may impose a license fee for manufacturing or trafficking in alcoholic beverages, pursuant to KRS 243.070 and may use the services of the county alcoholic beverage control administrator.
KRS 243.070 provides, in part:
"The city legislative body of any city in which traffic in alcoholic beverages is not prohibited under KRS Chapter 242 may impose license fees for the privilege of manufacturing and trafficking in alcoholic beverages . . . ." (Emphasis added).
KRS 241.160 provides:
"The legislative body of any city of the first, second, third or fourth class in which traffic in alcoholic beverages is not forbidden by KRS Chapter 242 shall by ordinance create the office of city alcoholic beverage control administrator, or shall assign the duties of this office to a presently established city office."
The only statutory limitations on the specific authority of cities to issue licenses are (1) the licenses must correspond in their provisions to those issued by the state administrator and (2) on the amount of fees. Deckert v. Levy, Ky., 213 S.W.2d 431 (1948). There is no statutory limitation on the class of city which may impose license fees. By enacting KRS 243.070 the legislature has shared responsibility with all municipalities in which traffic in alcoholic beverages is permitted by extending concurrent power for licensing. This specific delegation is not impaired by the fact that the city has not created the office of city alcoholic beverage control administrator because it is not authorized to do so under KRS 241.160. In Deckert v. Levy, supra, the Court confirmed the authority of a city to enact an ordinance limiting the number of retail beer licenses in the absence of regulations by the state alcoholic beverage control board and where the office of city alcoholic beverage control administrator had not been created. In City of Bowling Green v. Gasoline Marketers, Ky., 539 S.W.2d 281 (1976), the Kentucky Supreme Court affirmed the enactment of an ordinance limiting the issuance of licenses where the city alcoholic beverage control administrator had been appointed but had not adopted the ordinance as a regulation.
In Deckert, the City of Covington, a second class city, was statutorily authorized to create the position of city alcoholic beverage control administrator, but chose not to do so. In City of Bowling Green, supra, the city alcoholic beverage control administrator had been appointed but had not taken action toward adopting the ordinance as a regulation. The difference between the two cases is without distinction. City of Bowling Green, supra at 284. In both cases the validity of the ordinance enacted pursuant to KRS 243.070 was upheld.
In the instant case, the fifth class city of Oak Grove does not possess the statutory authority to create the position of alcoholic beverage control administrator. From the foregoing cases, it is clear that the existence of the office of administrator does not affect the validity of a city ordinance under KRS 243.070. Even where the office has been created and the administrator appointed, it is not necessary for the ordinance to be adopted by the city administrator as a regulation in order to be valid. City of Bowling Green, supra at 284. It is the opinion of this office that the fifth class city of Oak Grove has the authority to enact an ordinance imposing license fees on the manufacturing and trafficking of alcoholic beverages.
You have also asked whether the city may also use the services of the control administrator. KRS 241.110(5) provides:
"The said county alcoholic beverage control administrator . . . and his investigators shall have full police powers of peace officers, and their jurisdiction shall be over the unincorporated areas of such county and within the corporate limits of any city not having its own administrator . . . ." (Emphasis added).
Under KRS 241.140 the functions of the county administrator "shall be the same, with respect to local licenses and regulations as the functions of the board with respect to state licenses and regulations . . . ." (Emphasis added). The term "local" may be interpreted to mean county or city, inasmuch as the county administrator's jurisdiction includes cities which do not have a city administrator. Administration of city licenses issued by the City of Oak Grove pursuant to KRS 243.070 is the responsibility of the county alcoholic beverage administrator.
We trust this information has satisfactorily answered your inquiry. If you have any additional questions, please contact us.