Request By:
Mr. A. Jack May, Director
Division of Judicial Training
Department of Justice
Box 608, E.K.U.
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James S. Goldberg, Assistant Attorney General
This letter is in response to your correspondence of April 12, 1977, in which you have asked this Office for an opinion on the following questions:
1. KRS 243.500 sets out causes for which alcoholic beverage licenses may be revoked or suspended. Is this statute also penal in nature so that a person may also be held criminally liable for violation of its provisions.
2. Is KRS 243.500 (7) constitutional for mandating a revocation or suspension of a license for permitting gambling which is otherwise ordinarily legal?
In answer to your first question, it is the position of this Office that KRS 243.500 is not, in and of itself, penal in nature. However, we would refer you to KRS 243.990 (1), which states:
"Any person who, by himself or acting through another, directly or indirectly, violates any of the provisions of KRS 243.020 to 243.670, for which no other penalty is provided, shall, for the first offense, be fined not less than one hundred nor more than two hundred dollars, or be imprisoned in the county jail or workhouse for not more than six months, or both; and for the second and each subsequent violation, he shall be fined not less than two hundred nor more than five hundred dollars, or be imprisoned in the county jail or workhouse for not more than six months, or both. The penalties provided for in this subsection shall be in addition to the revocation of the offender's license. "
We would therefore conclude that KRS 243.990 (1) is the appropriate statute for determining the penal liability of a licensee who violates any of the provisions of KRS 243.500. It should be mentioned at this point that the penalities provided for in KRS 243.990 (1) may only be additionally imposed on an offender whose license has been actually revoked, and not merely suspended, under the provisions of KRS 243.500. If the offender's license is only temporarily suspended, the sanctions of KRS 243.990 (1) are not applicable.
Furthermore, in view of the fact that you are particularly interested in section 7 of KRS 243.500, regarding the conducting of gambling activity on licensed premises, we would also refer you to KRS Chapter 528, which imposes criminal sanctions on any individual who advances and/or profits from any gambling activity, as those terms have been defined in KRS 528.010 (1), (3) and (8).
In answer to your second question, we observe that "[t]he principal concept of the entire gambling chapter (528) is to punish those who make a business or profession of gambling rather than the player who makes the business possible." Commentary to KRS 528.010. Indeed, as you point out, the status of a "player, " under KRS 528.010 (7), is a defense to any prosecution under KRS Chapter 528.
However, under KRS 500.040 (2), it is stated:
"This code shall not bar, suspend or otherwise affect any right or liability to damages, penalty, forfeiture or other remedy authorized by law to be recovered or enforced in a civil action."
Thus, while the conducting of gambling activity on licensed premises, if not found to be advancing or profiting from such activity under KRS Chapter 528, may not subject a licensee to criminal liability under the Kentucky Penal Code, this nevertheless would not prevent the ABC Board from revoking or suspending an individual's license for permitting such activity on licensed premises.
We hope that this opinion will satisfactorily answer all your questions. If we can be of any further service, please do not hesitate to call upon us.