TEMPERANCE LEAGUE OF KENTUCKY; GREG EARWOOD; AND DWIGHT DONALD ELAM V. DONNA B. PERRY, SCOTT COUNTY CLERK; BEN CHANDLER, ATTORNEY GENERAL; GEORGE LUSBY, SCOTT COUNTY JUDGE/EXECUTIVE; KENTUCKY COUNTY CLERK'S ASSOCIATION; JOHN CORNETT; ANDREA MOSS; AND CITIZENS FOR A BETTER GEORGETOWN
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RENDERED: MAY 16,2002
TO BE PUBLISHED
TEMPERANCE LEAGUE OF KENTUCKY;
GREG EARWOOD; AND DWIGHT DONALD
ELAM
v.
ON TRANSFER FROM COURT OF APPEALS
2000-CA-2570-MR
FRANKLIN CIRCUIT COURT NO. 2000-Cl-0811
DONNA 9. PERRY, SCOTT COUNTY
CLERK; BEN CHANDLER, ATTORNEY
GENERAL; GEORGE LUSBY, SCOTT
COUNTY JUDGE/EXECUTIVE; KENTUCKY
COUNTY CLERK’S ASSOCIATION; JOHN
CORNETT; ANDREA MOSS; AND
CITIZENS FOR A BETTER GEORGETOWN
APPELLEES
OPINION OF THE COURT
AFFIRMING
This case concerns a challenge to the constitutionality of KRS 242.185(6). We
hold that the statute is constitutional and affirm the trial court’s ruling.
Facts and Procedural History
The Kentucky General Assembly passed Senate Bill 247 on March 29, 2000.
The bill, which became effective on July 14, 2000, amends KRS 242.185 by allowing
any “dry” city or county to hold a local option election to allow the sale of alcoholic
beverages in certain restaurants and dining facilities.
Appellants, the Temperance League of Kentucky, Dwight Donald Elam, and
Greg Earwood, brought a declaratory judgment action in Franklin Circuit Court to
challenge the constitutionality of KRS 242.185(6). Appellants argued that the statute
was special legislation that violated the Kentucky Constitution.
The trial court concluded that the statute was constitutional and entered an
Opinion and Order denying declaratory relief. Appellants then appealed the trial court’s
Opinion and Order to the Court of Appeals. We granted Appellants’ motion to transfer
the case to this Court because the issue presented is of statewide importance.
Discussion
I. Constitutionalitv of the Statute
KRS 242.185(6) provides:
In order to promote economic development and tourism, other provisions
of the Kentucky Revised Statutes notwithstanding, a city or county in
which prohibition is in effect may, by petition in accordance with KRS
242.020, hold a local option election on the sale of alcoholic beverages
by the drink at restaurants and dining facilities which seat a minimum of
one hundred (100) persons and derive a minimum of seventy percent
(70%) of their gross receipts from the sale of food. The election shall be
held in accordance with KRS 242.030(l), (2), and (5), 242.040, and
242.060 to 242.120, and the proposition on the ballot shall state “Are you
in favor of the sale of alcoholic beverages by the drink in (name of city or
county) at restaurants and dining facilities with a seating capacity of at
least one hundred (100) persons and which derive at least seventy
percent (70%) of their gross receipts from the sale of food?“. If the
majority of the votes in an election held pursuant to this subsection are
“Yes”, licenses may be issued to qualified restaurants and dining facilities
and the licensees may be regulated and taxed in accordance with
subsections (4) and (5) of this section.
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Appellants argue that this statute violates § 59 of the Kentucky Constitution,
which provides that the “General Assembly shall not pass local or special acts . . . .I’
The test for determining whether legislation violates 5 59 is set forth in Schoo v. Rose,
Ky., 270 S.W.2d 940 (1954). This two-part test provides that (1) the legislation must
apply equally to all in a class, and (2) there must be “distinctive and natural reasons
inducing and supporting the classification.” Id at 941.
A
A. Equal Application
Appellants concede that KRS 242.185(6) applies equally to all dry cities and
counties in Kentucky. Appellants do not challenge the statute on this basis. Rather,
Appellants argue that the statute draws an unconstitutional distinction between
restaurants that can sell alcohol by meeting the statute’s minimum requirements and
any other business that might want to serve liquor but cannot meet the statute’s
requirements. The trial court rejected the classification urged by Appellants and
instead concluded that the relevant classification was counties and cities. We
conclude that both classifications are constitutional under § 59.
Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631 (1943) is factually and
analytically similar to the case at bar. In Mannini, the owner of a pool room challenged
the constitutionality of a law that prohibited the sale of alcoholic beverages in bowling
alleys and pool rooms in fourth class cities. Id. In holding that the statute violated §
59, the Mannini Court appears to have addressed both the classification in the statute
as to fourth class cities and the classification as to pool rooms and bowling alleys:
[T]he classification of fourth class cities set up in the statute has no
reasonable relation to the purpose of the statute. There appears to be no
rational basis for assuming that the sale of beer in a poolroom in Danville
is fraught with other or different consequences than a similar sale in the
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nearby fifth class city of Stanford or the somewhat more distant second
class city of Lexington. The General Assemblv could bv a qeneral act
leqislate on this question or authorize cities thus to leqislate but the
subject of the Act is one of general application and the classification on
which it rests is contrary to the constitutional provisions forbidding local or
special legislation.
Id. at 634 (emphasis added).
In other words, Mannini holds that the classification in the statute limiting its
application to fourth class cities violates $ 59. But under Mannini, a general prohibition
against selling alcohol in pool rooms and bowling alleys across the Commonwealth is
not a classification that would violate the first part of the Schoo test. Nor would
legislation violate the first part of the Schoo test that gave individual cities and counties
the option to decide individually whether to prohibit the sale of alcohol in pool rooms
and bowling alleys. Thus, under Mannini, prohibiting certain classes of businesses
from selling alcohol under the statute is not special legislation in violation of 5 59. For
§ 59 purposes, we discern no meaningful difference in a classification based on what
types of businesses cannot serve alcohol and a classification based on what types of
businesses cam serve alcohol.
The “alcoholic beverage business is of such a special character that its
treatment as a separate classification for purposes of regulation and license taxation is
not subject to question.” Georqe Wiedemann Brewinq Co. v. Citv of Newport, Kv., Ky.,
321 S.W.2d 404, 408 (1959). Moreover, the sale of alcoholic beverages is the subject
of extensive and detailed regulation within the Commonwealth. See, e.q., KRS
Chapters 241, 242, 243, and 244. Given the unique nature of the regulation and
licensing of the sale of alcoholic beverages, almost any content-neutral, legislative
classification based on the types of businesses or organizations eligible to sell
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alcoholic beverages would not constitute special legislation within the meaning of § 59.
Compare Commonwealth v. Seabolt, Ky. App., 688 S.W.2d 571 (1984) (which upholds
the constitutionality of a statute that allows only restaurants, which seat a minimum of
one hundred persons and derive a minimum of fifty percent of gross revenue from the
sale of food, to apply for a Sunday liquor license) with Commonwealth, Alcoholic
Beveraqe Control Board v. Burke, KY., 481 S.W.2d 52 (1972) (which strikes down as
unconstitutional a statute that prohibits women from being employed in a business that
sells alcoholic beverages except to work as servers, cashiers or ushers). Certainly, the
classification made in this case does not violate 5 59. See, e.q., Seabolt, supra.
B. Reasonablv Related
As found by the trial court, the “General Assembly’s intent in amending KRS
242.185(6) was to promote economic development in all dry cities and counties.” In so
doing, the General Assembly has assumed that the sale of alcoholic beverages will
further this purpose. We defer to the General Assembly’s conclusions on this issue.
See United Drv Forces v. Lewis, Ky., 619 S.W.2d 489, 493 (1981). We now turn to the
question of whether the classification set forth in the statute is reasonably related to
this purpose.
The trial court found that the classification made -i.e., that only restaurants or
dining facilities that seat a minimum of one hundred persons and derive seventy
percent of their gross receipts from the sale of food may apply for licenses under the
statute - was reasonably related to the statute’s purpose:
The Court finds that there are logical reasons to limit liquor sales to larger
restaurants. The purpose of this act is to increase the amount of
business income, potential tax revenue and other development benefits to
a community. The limitation of this opportunity to larger restaurants is
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rational, as the General Assembly could reasonably have assumed that
selling alcohol in taverns and other small establishments, or
establishments whose principal business is selling alcohol, would not
promote the type of economic development described above.
Opinion and Order, Franklin Circuit Court, 00-Cl-00811, 6-7 (November 3, 2000).
We agree with the trial court’s findings that the classification made in the statute
is reasonably related to the statute’s purpose. This conclusion is supported by this
Court’s decision in United Drv Forces.
Like the case at bar, United Drv Forces concerned a statute that provided for the
holding of local option elections. 619 S.W.2d at 490. But the local option elections
permitted in United Drv Forces were not county or city wide; rather, they were to be
held in one or more individual precincts. Id. The stated purpose of the statute under
consideration in United Drv Forces - which by its own terms applied only to secondclass cities - was to alleviate economic distress. Id. The statute allowed two separate
and distinct means by which voters in an affected precinct could determine in a “minilocal option election” whether they wanted to allow the sale of alcohol in their precinct.
Id. But whether a vote could be taken was dependent on the precinct being designated
as a “limited sale precinct” by the governing body of the city. Id. Under the statute, this
only could be done by one of two methods:
(1) a determination by the governing body on its own that one or more
“dry” precincts within the city are substantially (economically) adversely
affected by reason of the legal sale of alcoholic beverages in neighboring
areas, or, (2) receipt by the governing body of a written petition
requesting an election signed by a number of voters within the dry
precinct equal to at least 33% of the persons who voted in the last
general election.
!& at 490-91.
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The United Drv Forces Court separately analyzed each of the above methods for
designating a “limited sale precinct.” It determined that the second method had no
Id.
relationship to the purpose of the statute and, thus, violated 5 59. - at 493. But it
concluded that the first method was consistent with the overall purpose of the statute
and therefore held that the first method satisfied the second part of the Schoo test. Id.
The first, constitutionally permissible method bears great similarity to the scheme for
permitting local option elections set forth in KRS 242.185(6).
The first method analyzed in United Drv Forces permitted holding an option
election only upon a determination by the relevant governing body that a precinct or
precincts had been negatively impacted because alcohol could not be sold in the
precinct or precincts. Once this determination was made, a “mini-local option election”
was permitted to be held in the affected precinct, or precincts, in order to alleviate the
adverse impact. That is, the first method makes or assumes a connection between the
sale of alcohol and increased economic activity. Under KRS 242.185(6), rather than
leaving the determination to the local government, the General Assembly has
predetermined that the sale of alcohol in restaurants of certain types and sizes in
otherwise dry cities or counties will spur economic growth. Thus, KRS 242.185(6)
makes the same or similar connection between the sale of alcohol and increased
activity that is made in the first method for holding a “mini-local option” election
considered in United Drv Forces.
II. Constitutionalitv of the Election
Appellants next argue that 5 61 of the Kentucky Constitution prohibits the
holding of local option elections on a general election day. Therefore, they argue the
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results of any and all elections held pursuant to KRS 242.185(6) on a general election
day are void. We disagree.
Section 61 provides:
The General Assembly shall, by general law, provide a means whereby
the sense of the people of any county, city, town, district or precinct may
be taken, as to whether or not spirituous, vinous or malt liquors shall be
sold, bartered or loaned therein, or the sale thereof regulated. But
nothing herein shall be construed to interfere with or to repeal any law in
force relating to the sale or gift of such liquors. All elections on this
question mav be held on a dav other than the regular election davs.
(Emphasis added).
This provision clearly allows local option elections to be held on days other than
regular election days. Appellants argue that whether the provision allows elections to
be held on a regular election day is ambiguous. We find no ambiguity.
As used in 3 61, “election” is an “election” within the meaning of § 147 of the
Kentucky Constitution. Belknap v. Citv of Louisville, Kv., 99 Ky. 474, 36 S.W. 1118,
1119 (1896), overruled on other qrounds, Montqomerv Countv Fiscal Court v. Trimble,
104 Ky. 629, 47 S.W. 773, 776 (1898); Board of Education v. Citv of Winchester, 120
Ky. 591,87 S.W. 768,769 (1905). As such, the day and time for which elections under
5 61 can be held is controlled by 5 148, which provides in pertinent part: “Not more
than one election each year shall be held in this State . . . , except as otherwise
provided in this Constitution.” Id. (Emphasis added). Consequently, absent the
permissive “may” in the last sentence in § 61, a local option election must be held on
the general election day set forth in 5148. a Patterson v. Lawson, 255 Ky. 781, 75
S.W.2d 507 (1934) (A special election held to decide the composition of fiscal court
was void because the day of the election was not in accordance with the regular
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election day established by $148.). Thus, the last sentence in 5 61 is constitutionally
necessary to allow a local option election to be held on a day other than the regular
election day mandated by 5 148. The last sentence of 5 61 serves to give permission
to hold local elections on days other than the regular election day established in $148.
It does not preclude local option elections from being held in accordance with 5 148. If
that was the intent, then the word “shall” would have been used in the last sentence of
5 61 rather than the word “may.”
Having concluded that $ 61 is not ambiguous, it normally would violate basic
rules of statutory construction to turn to the constitutional debates in order to determine
legislative intent. Citv of Vanceburo v. Plummer, 275 Ky. 713, 122 S.W.2d 772, 776
(1938) (“Where the language of a statute is doubtful or ambiguous, resort may be had
to the journals or to the legislative records showing the legislative history of the act in
question in order to ascertain the intention of the Legislature, but this rule does not
apply where the language of the statute is plain and unambiguous.“) We do so now
only to show the fallacy in the dissent’s reliance on the constitutional debates.
At page 5788 of the Debates (Vol. IV), Delegate C. J. Bronston of Lexington
offered an amended version of section 112, which ultimately became § 61 of the
Constitution. This amended version was identical to what is now § 61, except that it did
not include the last sentence pertaining to the day on which the “sense of the people”
could be taken. Delegate C. T. Allen of Caldwell County offered a substitute to
Bronston’s amendment that read:
The General Assembly shall, by general law, provide for an election
whereby the sense of the people of any county, city, town, district or
precinct may be taken as to whether or not spirituous, vinous or malt
liquors shall be sold, bartered, loaned or given away therein, or the sale
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thereof regulated; and such election shall be on a day seoarate and apart
from other election davs. Nothing herein shall be construed to repeal or
modify any law now in force in any county, city, town, district or precinct
relating to the sale, barter, loan or gift of such liquors.
A debate over these two versions then ensued. Delegate Bronston argued that
his version required all local option elections to be held “on the same day that other
elections are held on,” whereas Allen’s substitute “authorizes their holding on a
separate day.” Debates, 5788. Bronston also objected to the “provide for an election”
language because the intent of his (Bronston’s) version was not to provide for an
election but “to provide a means by which the sense of the people can be taken.”
Debates, 5789. Delegate Allen responded that he wanted to make sure that the “sense
of the people” be taken by an election and not by some other means, and clearly
indicated that the intent of his substitute was not merely to authorize, but to require,
that the election occur on a day other than a regular election day. Following an
adjournment, Allen withdrew his previous proposed substitute and offered a new
amendment that merely added to Bronston’s version what is now the last sentence in 5
61: “All elections on this question may be held on a day other than the regular election
day.” (Emphasis added). The amendment was accepted and the section, as amended,
was adopted 48 - 26 with both Bronston and Allen voting with the majority. Debates,
5790.
Obviously, the last sentence in 5 61 was a compromise between Bronston’s
desire that local option issues always be resolved by taking the “sense of the people”
and that such “takings” always be held on a regular election day, and Allen’s desire
that local option issues always be resolved by elections and that such elections never
be held on a regular election day. The substitution of “may” in Allen’s final amendment
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for “shall” in his withdrawn substitute amendment shows that the legislative history of 5
61 supports our holding today and not the contrary view taken by the dissent.
For the reasons set forth above, we hold that KRS 242.185(6) does not violate 5
59 of the Kentucky Constitution. We further hold that the holding of a local option
election on a regular election day is permissible under 5 61 of the Kentucky
Constitution.
Therefore, we affirm the Franklin Circuit Court’s Opinion and Order.
Lambert, C.J.; Cooper, Johnstone, Keller, Stumbo, and Wintersheimer, JJ.,
concur. Graves, J., dissents by separate opinion.
COUNSEL FOR APPELLANTS:
John Frith Stewart
Jeffrey C. Trapp
Segal, Stewart, Cutler, Lindsay, Janes & Berry, PLLC
1400-B Waterfront Plaza
325 W. Main Street
Louisville, KY 40202-4251
COUNSEL FOR APPELLEES,
DONNA B. PERRY, SCOTT COUNTY
CLERK; AND GEORGE LUSBY,
SCOTT COUNTY JUDGE/EXECUTIVE:
J. Clay McKnight, Jr.
119 North Hamilton Street
Court of Justice Building
Georgetown, KY 40324
COUNSEL FOR APPELLEE,
KENTUCKY COUNTY CLERK’S
ASSOCIATION:
Julius Rather
156 Market Street
Lexington, KY 40507
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COUNSEL FOR APPELLEES,
JOHN CORNETT; ANDREA
MOSS; AND CITIZENS FOR A
BETTER GEORGETOWN:
E. Douglas Richards
333 West Vine Street, Suite 300
Lexington, KY 40507
John B. Baughman
Hazelrigg & Cox
415 West Main Street
P. 0. Box 676
Frankfort, KY 40602-0676
COUNSEL FOR APPELLEE,
BEN CHANDLER, ATTORNEY
GENERAL:
A. B. Chandler III
Attorney General
Christina L. Bradford
Assistant Attorney General
Scott White
Assistant Deputy Attorney General
700 Capitol Avenue, Suite 118
Frankfort, KY 40601-3449
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RENDERED: MAY 16, 2002
TO BE PUBLISHED
2000-SC-IO 19-TG
TEMPERANCE LEAGUE OF KENTUCKY;
GREG EARWOOD; AND DWIGHT DONALD
ELAM
V.
APPELLANTS
ON TRANSFER FROM COURT OF APPEALS
2000-CA-2570-MR
FRANKLIN CIRCUIT COURT NO. 2000-Cl-0811
DONNA B. PERRY, SCOTT COUNTY
CLERK; BEN CHANDLER, ATTORNEY
GENERAL; GEORGE LUSBY, SCOTT
COUNTY JUDGE/EXECUTIVE; KENTUCKY
COUNTY CLERK’S ASSOCIATION; JOHN
CORNETT; ANDREA MOSS; AND
CITIZENS FOR A BETTER GEORGETOWN
APPELLEES
DISSENTING OPINION BY JUSTICE GRAVES
Respectfully, I dissent. Nine Kentucky communities held an election under KRS
242.185(6) on November 7, 2000, a general election day. with Georgetown. Murray,
Kuttawa, and Guthrie passing their ballot measures. Because all local option electtons
must be held on a day other than a general election day, all nine elections should be
nullified in accordance with law.
In deciding this case, we are faced with construing an ambiguous section of the
Kentucky Constitution. Section 61 reads:
The General Assembly shall, by general law, provide a means whereby
the sense of the people of any county, city, town, district or precinct may
be taken, as to whether or not spiritous, vinous or malt liquors shall be
sold, bartered or loaned therein, or the sale thereof regulated. But
nothing herein shall be construed to interfere with or to repeal any law in
force relating to the sale or gift of such liquors. All elections on this
question may be held on a day other than the regular election days.
The majority argues that, in the last sentence, the word “may” allows local option
elections to be held either on general election days or on other days.
It is elementary
that the word “may,” is permissive, and it is the election itself that is permitted and not
the day on which the election is held. Since the statute is subject to both
interpretations, this Court should follow established rules of statutory construction to
decide between the competing interpretations.
According to conventional rules of statutory construction, as stated by this Court,
“[w]here the language of the statute is doubtful or ambiguous, resort may be had to the
journals or to the legislative records showing the legislative history of the act in question
in order to ascertain the intention of the Legislature. . . .‘I Citv of Vancebura v.
Plumrner, 275 Ky. 713, 122 S.W.2d
772, 776 (1938). In this case, the legislative
history gives an excellent indication of legislative intent. The sponsor of $61 at the
Constitutional Convention of 1890 was Delegate C.T. Allen, who said:
I am in favor of giving the temperance element a fair field and an open
fight, and there is but one way to do it, and that is to make these
temperance elections on a day separate and apart from all the others.
Kentuckians particularly are given to politics, and they are not in favor of
mixing moral or temperance questions with political questions. The
holding of temperance questions on the day of political elections will tend
to greatly disturb the political parties of this state. I am opposed to it for
that reason.
Debates, Constitutional Convention of 1890, Vol. 4, P. 5789. Delegate Allen himself
proposed the language causing this dispute, that “[a]11 elections on this question may be
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held on a day other than the regular election days.” Clearly in his mind, the mixing of
temperance questions and general political elections was inappropriate. The framers of
our Constitution were well-educated and literate. They were trained in grammar and
syntax. If they had desired the majority’s result, they would have clearly written
“elections on this question may be held on regular election days or some other day.”
However, they use the adjective “all” which means every local option election, and they
chose the phrase “on a . . . day other” to determine when the election may be held.
Appellee in this case is correct in that Kentucky courts have repeatedly affirmed
that “may” is a permissive, rather than mandatory term. See e.a., Alexander v. S 6 M
Motors, Inc., Ky., 28 S.W.3d 303, 305 (2000). Here, the term is permissive in the
respect that it allows local option elections to occur. But when they do occur, they must
be held on days other than general election days. The passage of time and changes in
society, economy, and government does not change the plain meaning of the words
“may” and “day other.” By giving these words their natural and popular meaning, it is
not difficult to determine the plain meaning of Section 61.
The Kentucky Constitution is the voice of the people. It has withstood the test of
time and experience, and it should not be evaded for the sake of situational
expediency.
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