Opinion
NO. 2016-CA-001796-MR
01-12-2018
THE GRAYSON BEVERAGE CENTER, LLC d/b/a THE GRAYSON BEVERAGE CENTER, LLC APPELLANT v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, COMMONWEALTH OF KENTUCKY; ALCOHOLIC BEVERAGE CONTROL BOARD, COMMONWEALTH OF KENTUCKY; COMMISSIONER FREDERICK HIGDON; TONY DEHNER, DISTILLED SPIRITS ADMINISTRATOR; HOLLY MCCOY-JOHNSON, MALT BEVERAGE ADMINISTRATOR; JAN LILE; RICHARD MAYSE; AND WILLIS JOHNSON APPELLEES
BRIEF FOR APPELLANT: John Thompson Grayson, Kentucky BRIEF FOR APPELLEE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL: Barry L. Dunn Stephen Lee Walters Frankfort, Kentucky BRIEF FOR APPELLEE ALCOHOLIC BEVERAGE CONTROL BOARD: Stephen B. Humphress Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00098 OPINION AND ORDER
DISMISSING
When final disposition of an appeal is made by an "Opinion and Order," as in this case, the party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1). --------
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND JONES, JUDGES. JOHNSON, JUDGE: The Grayson Beverage Center, LLC ("Grayson") appeals from the Franklin Circuit Court's Opinion and Order on November 1, 2016, affirming the decision of the Kentucky Alcoholic Beverage Control Board ("Board"), charging it with violating Kentucky Revised Statutes ("KRS") 242.250(1), Advertising the Sale of Alcoholic Beverages in a Dry Territory. Because this appeal challenges the constitutionality of a statute, KRS 242.250(1), and notice as required was not properly served on the Attorney General, we dismiss this appeal.
The events of this case stem from a complaint filed on September 5, 2014, against Grayson by the Board wherein, ABC Investigator Richard Mayse ("Mayse") observed two signs advertising the sale of beer, wine, and distilled spirits which were 1.9 miles and 2.6 miles outside Grayson city limits. Grayson is a wet city located in a dry county. This gave rise to the Board Administrative Case No. 16-ABC-146, wherein Investigator Mayse charged Grayson with a violation of KRS 242.250(1), which provides:
No person, while representing either the buyer or seller, shall distribute, solicit, or receive contracts, proposals or orders for the purchase or sale of any alcoholic beverages, or distribute any handbills or posters advertising them in dry territory.
Grayson received notice of the complaint and filed a motion to dismiss, arguing that KRS 242.250, adopted in 1949, if followed leads to an absurdity. Grayson points out that placards and handbills would be prohibited from display in dry territory where alcohol sales are prohibited while periodicals, television, internet, and radio advertisements are permissible.
The Board overruled the motion to dismiss and conducted a hearing on November 16, 2015, wherein it found Grayson guilty of a violation of KRS 242.250(1). The Board issued its Findings of Fact, Conclusions of Law, and Order on December 29, 2015. Grayson appealed the Board's decision to the Franklin Circuit Court, again raising his allegation that KRS 242.250(1) violates his First Amendment rights. On November 1, 2016, the Franklin Circuit Court issued an opinion and order affirming the Board. It is from this opinion of the Franklin Circuit Court which Grayson now appeals.
Grayson contends that KRS 242.250(1) violates his First Amendment rights and all licensed alcoholic beverage vendors in the Commonwealth of Kentucky. The record is devoid of any compliance with KRS 418.075(1).
Kentucky Rule of Civil Procedure ("CR") 24.03 states: "When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney General." In addition, KRS 418.075(1) provides:
In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the petition . . . .
In Benet v . Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008), the Kentucky Supreme Court held that "strict compliance with the notification provisions of KRS 418.075 is mandatory[.]" It noted it consistently "refused to address arguments that a statute is unconstitutional unless the notice provisions of KRS 418.075 had been fully satisfied[,]" and adhered to its view that strict compliance with the statute is required in all cases. The Supreme Court in Benet rejected an appeal when the Attorney General had not been notified of a statutory challenge. "Because the plain language of KRS 418.075 requires notice be given to the Attorney General prior to the entry of judgment, we reject any contention that merely filing an appellate brief, which necessarily occurs post-judgment, satisfies the clear requirements of KRS 418.075." Id .
Since Grayson failed to notify the Attorney General as required by KRS 418.075(1), he has not properly preserved his challenge to the constitutionality of KRS 242.250(1). Benet , 253 S.W.3d at 532. Based on the foregoing, the appeal of Grayson is hereby DISMISSED.
ALL CONCUR. ENTERED: January 12, 2018
/s/ Rob Johnson
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: John Thompson
Grayson, Kentucky BRIEF FOR APPELLEE
DEPARTMENT OF ALCOHOLIC
BEVERAGE CONTROL: Barry L. Dunn
Stephen Lee Walters
Frankfort, Kentucky BRIEF FOR APPELLEE
ALCOHOLIC BEVERAGE
CONTROL BOARD: Stephen B. Humphress
Frankfort, Kentucky