ANNA FRANCIS DALTON v. JUDY FORTNER, Grant County Clerk; DARRELL LINK, Grant County Judge Executive; JUDY FORTNER, RANDY MIDDLETON, BETTY BREWER, and DUDLEY PEDDICORD, all Members of GRANT COUNTY BOARD OF ELECTIONS
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RENDERED: OCTOBER 10, 2003; 2:00 p.m.
ORDERED PUBLISHED: NOVEMBER 7, 2003; 2:00 p.m.
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001577-MR
ANNA FRANCIS DALTON
v.
APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 02-CI-00136
JUDY FORTNER, Grant County Clerk;
DARRELL LINK, Grant County Judge
Executive; JUDY FORTNER, RANDY
MIDDLETON, BETTY BREWER, and DUDLEY
PEDDICORD, all Members of GRANT COUNTY
BOARD OF ELECTIONS
APPELLEES
OPINION
REVERSING and REMANDING
** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE; McANULTY, JUDGE; AND HUDDLESTON,
SENIOR JUDGE.1
EMBERTON, CHIEF JUDGE.
The appellant filed this action for
declaratory and injunctive relief against the Grant County
election officials, the Grant County Clerk and the Grant County
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Judge Executive after the Judge Executive refused to order a
local option election in the City of Corinth, Grant County,
Kentucky.
The issue presented is whether KRS2 242.185(6), the
local option election law permitting the sale of alcoholic
beverage by the drink, is applicable to cities other than those
of the fourth class or counties containing cities of the fourth
class.
The circuit court held that it is not and denied the
requested relief.
KRS 242.185(6), enacted in 2000, 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(1), (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 the subsection are “Yes”,
licenses may be issued to qualified
restaurants and dining facilities and the
licensees may be regulated and taxed in
2
Kentucky Revised Statutes.
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accordance with subsections (4) and (5) of
this section.
On January 30, 2002, the appellant filed a petition
with the Grant County Clerk requesting a local option election
be held in the City of Corinth.
The petition met the
requirements of KRS 242.020 containing the names of fifty-nine
qualified voters of the City of Corinth, exceeding the twentyfive percent of the votes cast in the city at the last preceding
general election.
Upon the petition being forwarded to the
Grant County Judge Executive, the Judge Executive refused to set
the matter for an election.
The circuit court held, and the appellees argue, that
subsection (1) of KRS 242.185 precludes the application of KRS
242.185(6) to cities other than those of the fourth class or
counties containing such cities.
class city.
The City of Corinth is a sixth
KRS 242.185(1) states:
This section shall apply to any city of the
fourth class or county containing a city of
the fourth class in which prohibition is not
in effect, notwithstanding any other
provisions of this chapter relating to the
sales of alcoholic beverages by the drink
for consumption on the premises.
If subsection (1) is intended to apply to subsection
(6), the provisions are inconsistent.
Under subsection (1)
every provision of KRS 242.185 would apply only to fourth class
cities and those counties containing fourth class cities where
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prohibition is not in effect.
Subsection (6), however, states
that it is applicable only to a city or county where prohibition
is in effect.
Where, as here, the language of the statute is
ambiguous, it is proper for this court to consider the
legislative history of the statute to determine its meaning.3
It
is our duty to “ascertain and give effect to the intent of the
General Assembly.”4
KRS 242.185(6) was enacted in 2000 as an amendment to
KRS 242.185, which had been enacted two years earlier, and which
contained the restrictive language of subsection (1).
Fourth
class cities have had the right to a local option election since
the enactment of KRS 242.125.
Additionally, before the 2000
amendment to KRS 242.185, upon a determination by the
legislative body that an economic hardship exists and the sale
of alcoholic beverages could aid economic growth, cities of the
fourth class and counties containing such a city could enact
regulations and ordinances licensing certain businesses to sell
alcoholic beverages by the drink.
Therefore, in order to give
cities other than those of the first four classes an equal
privilege, that is, the right to vote on the issue of limited
alcohol sales in otherwise dry territories, KRS 242.185(6) was
3
See City of Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772, 776 (1938).
4
Owens-Illinois Labels, Inc. v. Commonwealth, Ky. App., 27 S.W.3d 798, 802
(2000)(quoting Beckham v. Board of Education of Jefferson County, Ky., 873
S.W.2d 575, 577 (1994)).
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enacted.
The General Assembly, recognizing that these cities
and counties also have economic needs that can be met by the
limited sale of alcohol in otherwise dry territories, and
further being aware of the possible construction that could be
given by the courts, the legislature specifically included the
language, “In order to promote economic development and tourism,
other provisions of the Kentucky Revised Statutes
notwithstanding, a city . . . .”
“Other provisions” necessarily
includes the limiting language of KRS 242.185(1).
Our Supreme Court in Temperance League of Kentucky v.
Perry5 was confronted with a constitutional challenge to KRS
242.185(6).
The challenge, however, related to the distinction
between restaurants that meet, and those that do not meet the
statutory requirements.
In that case, the appellants conceded
that KRS 242.185(6) applied equally to all dry cities and
counties in Kentucky.
Despite this concession and although not
directly confronted with the issue, the court in its statement
of facts and procedural history stated:
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.6 (Emphasis added.)
5
Ky., 74 S.W.3d 730 (2002).
6
Id. at 731.
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The appellees and the trial court characterize the Temperance
League court’s language as dicta and not binding precedent.
We agree with the appellees in view of the appellant’s
concession in Temperance League, that the language is dicta and
does not bind us; however, we find it helpful to our analysis.
Had the appellants not conceded this issue, and contended that
it was applicable to only fourth class cities and counties
containing fourth class cities, the court would have been forced
to discuss the application of United Dry Forces v. Lewis,7 and
whether a classification based on a city’s size is
constitutional.
Instead, the court in Temperance League
deferred to the General Assembly’s intent to promote economic
development in all dry cities and counties and the assumption
that the sale of alcoholic beverages will further this purpose.8
The circuit court erred in holding that KRS 242.185(6)
does not apply to all cities and counties in Kentucky and
improperly denied appellant’s motion for declaratory and
injunctive relief.
The order is reversed and the case remanded
for further proceedings.
ALL CONCUR.
7
Ky., 619 S.W.2d 489 (1981).
8
Temperance League, supra, at 733.
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BRIEF FOR APPELLANT:
Robert P. Gettys
Covington, Kentucky
William T. Robinson, III
GREENEBAUM DOLL & McDONALD
Covington, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
Edward J. Lorenz
GRANT COUNTY ATTORNEY
Williamstown, Kentucky
ORAL ARGUMENT FOR APPELLANT:
Robert P. Gettys
Covington, Kentucky
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