Opinion
NO. 2015-CA-000830-MR
04-29-2016
SCORPION ENTERPRISES, INC. D/B/A LOST RIVER LIQUORS APPELLANT v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Matthew J. Baker Bowling Green, Kentucky BRIEF FOR APPELLEE: David A. Smith Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-00236 OPINION AND ORDER
DISMISSING
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BEFORE: CLAYTON, KRAMER, AND J. LAMBERT, JUDGES. KRAMER, JUDGE: The Kentucky State Alcoholic Beverage Control Board ("Board") suspended the alcoholic beverage licenses of Scorpion Enterprises, Inc., for a period of 60 days after determining Scorpion had violated Kentucky Revised Statute (KRS) 244.085(7). Scorpion filed an original action in Franklin Circuit Court to appeal the Board's decision, and the circuit court entered an order on May 7, 2015, affirming. Scorpion now appeals to this Court. Upon review, we dismiss. As to why, KRS 243.560(3) mandates that the Board shall be a "necessary" party to "any appeals." Here, Scorpion omitted the Board from its notice of appeal to this Court; its notice names only the Department of Alcoholic Beverage Control ("Department"), which is an entity separate and apart from the Board.,
The General Assembly has made clear that the Board and the Department are not the same administrative body. KRS 241.010(4) defines "the State Alcoholic Beverage Control Board created by KRS 241.030." The Board is composed of a Distilled Spirits Division director, a Malt Beverages Division Director, and the Department's commissioner. KRS 241.030. Board functions include KRS Chapter 13B hearings, appeals, and final orders. KRS 241.060(3), (4). Unlike the Board, the Department has no power to conduct hearings or appeals or to render final orders. KRS 241.010(17) defines "the Department of Alcoholic Beverage Control." KRS 241.015 creates the Department as an administrative department of state government. KRS 12.020 II (4)(g) identifies the Department and its divisions as a state agency. The Department is charged with administering the alcoholic beverage laws. Its division directors have various functions and powers in administering those laws. KRS 241.020; KRS 241.080; KRS 241.090. State licenses are issued or refused by the Department's Division of Distilled Spirits and Division of Malt Beverages. KRS 241.080.
The matter of our jurisdiction is an issue we are required to raise sua sponte, "as it cannot be acquired by waiver, consent, or estoppel." Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky. App. 2005) (footnotes omitted). --------
Kentucky courts have long held that statutes providing for judicial review of administrative agency decisions are to be strictly observed. See Kentucky Unemployment Comm'n v. Carter, 689 S.W.2d 360 (Ky. 1985); Board of Adjustment of the City of Richmond v. Flood, 581 S.W.2d 1 (Ky. 1979); Fisher v. Kentucky Unemployment Ins. Comm'n, 880 S.W.2d 891, 892 (Ky. App. 1994); Monyhan v. Kentucky Unemployment Ins. Comm'n, 709 S.W.2d 837 (Ky. App. 1986); Frisby v. Board of Educ. of Boyle County, 707 S.W.2d 359 (Ky. App. 1986); Cabinet for Human Res. v. Holbrook, 672 S.W.2d 672 (Ky. App. 1984); Pickhart v. United States Post Office, 664 S.W.2d 939 (Ky. App. 1983); Roberts v. Watts, 258 S.W.2d 513 (Ky. 1953). When an aggrieved party is permitted by statute to appeal an administrative agency decision, the requirements of the statute are mandatory, and a court does not obtain jurisdiction to hear the appeal unless the statutory requirements have been met. Cabinet for Human Res. v. Holbrook, 672 S.W.2d 672, 675 (Ky. App. 1984) (citations omitted). By failing to name the Board as a party to this appeal as mandated by statute, Scorpion has effectively deprived this Court of jurisdiction. Accordingly, we DISMISS.
ALL CONCUR. ENTERED: April 29, 2016
/s/ Joy A. Kramer
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Matthew J. Baker
Bowling Green, Kentucky BRIEF FOR APPELLEE: David A. Smith
Frankfort, Kentucky