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Shannon Sexton: Clarification on Adair ABC Ordinance update

City or County cannot pass ordinance which conflicts with State Statutes, she found. And is continuing to ask for clarifications on other issues, such as whether will be legal for deliveries on Sunday by stores in Columbia to residents in the county would be legal.
About: Comments re article 92071 Adair County Fiscal Court Report 08 Aug 2017 Report

By Shannon Sexton, Adair County Deputy ABC Commissioner

This section of Adair County Fiscal Court meeting report in ColumbiaMagazine is incorrect: "Second reading for the ABC Ordinance Amendment, which was updated to address certain changes made by the State, including language to prevent home deliveries in the county which would have been allowed without the amendment, and language which will prevent the establishment of stand-alone bars in the county. Deputy ABC Commissioner Shannon Sexton was present. The measure was approved unanimously on a motion by Magistrate Terry Hadley (7) with a second by Greg Caldwell (6)." There is no language to prevent home delivery.

When I inquired if the county could prohibit home delivery - the following response was given by the state:
"On June 29, 2017, House Bill 183 became law. In part, it repealed KRS 244.350 and now retailers with the proper package licenses may deliver all types of alcoholic beverages to a consumerís home. To deliver packages of distilled spirits and wine, a licensee must hold a quota retail package license. To deliver packages of malt beverages only, a licensee must hold a non-quota retail malt beverage package license. No additional licensure is required.

A retailer wishing to deliver alcoholic beverages must comply with all alcoholic beverage laws regarding the sale. The retailer cannot deliver the alcoholic beverages to a minor or an intoxicated person. See KRS 244.080. The employee delivering the alcoholic beverage must be 20 years of age. See KRS 244.090. The vehicle used by a retailer must contain the licenseeís name and number as required by Board regulation. See 804 KAR 8:050.

"The licensee can make delivery sales through an online ordering process, telephone order, or application downloaded to a personal communication device. A retailer may charge an additional fee for delivery so long as the fee is paid to the retailer as part of the sales transaction.

"A retailer can sell and deliver alcoholic beverages to a consumer in any wet territory, but not a dry or moist territory. See KRS 242.260. A retailer can travel through a dry or moist territory to deliver alcoholic beverages in a wet territory. See KRS 242.290.

"The retailer is allowed to contract with an independent contractor to deliver alcoholic beverages as its agent, however the retailer is responsible for all violations or acts by its agents. See KRS 243.020(1), 243.490. If the independent contractor acts exclusively for one retailer, no additional licensure is required and the independent contractor can operate under the retailerís license. Any independent contractor vehicle used for delivery must contains the retailerís name and license number. See 804 KAR 8:050.

"If a company wishes to deliver alcoholic beverages for multiple retailers, that company must first obtain a transporterís license and display its license name and number on its vehicles used for delivery. See 804 KAR 8:050. Both the retailer and the company holding the transporter license will be jointly and severally responsible for any violations of law. See KRS 243.490.

"A city or county cannot pass a local ordinance that conflicts with a statute. See KRS 67.083(6), KRS 82.082. A conflict exists between an ordinance and a statute when the ordinance permits conduct which is prohibited by statute or prohibits conduct which is permitted by the statute. See Louisville & Nashville Railroad Company v. Commonwealth, 488 S.W.2d 329, 330 (Ky.1972). Local government cannot enact ABC ordinances without statutory authority. See Liquor Outlet, LLC v. Alcoholic Beverage Control Board, 141 S.W.3d 378 (Ky. Ct. App. 2004). A municipal ordinance which is not in compliance with statutory authorization is void and unenforceable. Id..

This story was posted on 2017-08-09 14:20:29
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