The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/213936
What are local option election laws? Following the repeal of Prohibition, Kentucky Constitution Section 61 provided local communities with the right to choose whether to legalize the sale of alcoholic beverages. Many communities decided to remain dry or partly dry (moist), which meant that alcohol sales were banned or restricted. To this day, more than 50 percent of Kentucky geographically remains dry or moist. Citizens in a community can hold a local option election and decide to legalize or prohibit the sale of alcoholic beverages, or authorize a limited form of alcoholic beverage sale (moist). SB 13 attempted to correct many problems in Kentucky's existing local option election laws. For the sake of convenience, all local option election laws were placed in KRS Chapter 242, and any laws dealing with unrelated issues such as licensing and ordinances were moved to KRS Chapters 243 or 244. KRS Chapter 242 now better explains which territories can have local option elections and how petitions should be worded. KRS Chapter 242 specifically addresses new "moist" territories where voters only approve a limited form of alcoholic beverage sales in a territory. Although the term "moist" was previously used in the industry, it held different meanings for various industry members. It has now been defined by SB 13 to mean "a territory in which a majority of the electorate voted to permit limited alcohol sales by any one (1) or a combination of special limited local option elections. . . ."44 Limited alcohol sales (moist) elections are held only for limited restaurants, golf courses, small farm wineries, qualified historic sites, and horse racetracks.45 The local option election rules were also modernized to more closely follow KRS Chapter 117 dealing with primary and general elections. KRS 242.125, dealing with city elections to become wet separate from the county, was amended to be more comprehensible. All possible combinations of "wet," "dry" and "moist" status of cities and counties to permit those cities and counties to hold full wet elections are now recognized under amended KRS 242.125. PUBLIC SAFETY AND PROTECTION SB 13 expanded the scope of the disorderly premises statute, KRS 244.120, to provide the Kentucky ABC and local ABC administrators with additional powers to protect the public. Specifically, KRS 244.120 was amended to prohibit disorderly conduct by licensees' employees because the Franklin Circuit Court held in Hofbrauhaus Newport, LLC v. Department of Alcoholic Beverage Control, Civil Action No. 11-CI-1345, that the prior language of the statute only applied to patrons' conduct, and not the conduct of the licensee's employees. The court held that the Kentucky ABC was powerless to reprimand a licensee whose premises became disorderly by virtue of the licensee's own employees' conduct, which was ironic since licensees can legally exhibit more control over an employee's behavior than they can a patron's behavior. Further, in addition to existing prohibitions, the acts constituting disorderly conduct were enlarged to include: creating a public nuisance; engaging in criminal activity that would constitute a capital offense, felony, or misdemeanor; and failing to maintain the minimum health, fire, safety, or sanitary standards established by the state or a local government, or by state administrative regulations, for the licensed premises.46 Following a rising trend in other states, SB 13 created a new medical amnesty law.47 Its purpose is to encourage individuals to seek needed emergency medical attention for a minor or others due to alcohol poisoning. If certain strict requirements are met, the law would provide immunity from criminal prosecution to both minors and adults for less serious offenses such as alcohol intoxication, drinking alcoholic beverages in a public place, and possession of alcoholic beverages by an individual under 21 years of age, but not for more serious offenses such as driving under the influence. Based on discussions with various university representatives, the task force learned that after a night of binge drinking, college students failed to call for medical help for themselves or for a friend because of the fear of punishment from law enforcement. The expectation is that the universities will educate their students about this law and it will save lives. THREE-TIER SYSTEM PROTECTIONS RELATING TO MICROBREWERIES To deter business activities and abuse which resulted from Prohibition, Kentucky and other states have adopted a three-tier alcohol distribution system. The basic structure of that system is that producers (the makers of the alcohol) can sell their products only to wholesalers or distributors who then sell to retailers, and only retailers may sell to consumers. The three-tier system is designed to encourage competition and protect a retailer from being forced to only carry only one producer's product. Under prior law, a microbrewery produced malt beverages but was also granted the special privilege of obtaining the former retail malt beverage license to authorize retail beer sales at the microbrewery. Because of the separation of the former retail 11 LOCAL OPTION ELECTION LAW CHANGES B&B;