Request By:
Charles D. Franks, M.D.
Cave Run Clinic
Flemingsburg Road
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Gerald Henry, Assistant Attorney General
This is in response to your letter which asks the following questions:
(1) What is the proper mechanism for bringing before the people in a dry territory the proposition of selling alcoholic beverages there?
(2) May the vote be limited to the sale of alcoholic beverages in package stores and restaurants, excluding bars or places where only alcoholic beverages are served?
KRS 242.020, which deals with local option elections, provides as follows:
(1) A petition for an election shall be signed by a number of constitutionally qualified voters of the territory to be affected, equal to twenty-five percent of the votes cast in the territory at the last preceding general election. The petition may consist of one or more separate units, and shall be filed with the county clerk.
(2) The petition for election, in addition to the name of the voter, shall state also his post office address and the correct date upon which his name was signed.
(3) No signer may withdraw his name or have it taken from the petition after the petition has been filed. If the name of any person has been placed on the petition for election without his authority, he may appear before the county court before the election is ordered and upon proof that his name was placed on the petition without his authority, his name may be eliminated by an order of the court. When his name has been eliminated, he shall not be counted as a petitioner.
(4) After a petition for election has been filed, the county court shall, at the current or the next regular term, make an order on the order book of the court directing an election to be held in that territory.
KRS 242.030 provides:
(1) The date of the election may be stated in the petition for election. If the date is not stated, it shall be designated by the county court.
(2) The election shall be held not earlier than sixty nor later than ninety days after the date the petition is filed with the county clerk.
(3) The election shall not be held on the same day that a primary or general election is held in the territory or any part of the territory, nor within thirty days next preceding or following a regular political election.
(4) No election in any territory less than the county shall be held on the same day on which an election for the entire county is held, except as approved in KRS 242.125.
(5) No election shall be held in the same territory oftener than once in every three years.
KRS 242.040 thereafter sets forth the manner in which the election shall be advertised.
KRS 242.125, KRS 242.127 and KRS 242.129 provide additional procedures for certain cities. We believe these statutes are sufficiently clear that further comment will not be necessary, inasmuch as your question went only to the general mechanism of local option elections.
However, an additional comment is necessary in regard to the statutory use of "county court" in this matter.
On the basis of OAG 78-33, copy enclosed, we are of the opinion that "county court" in the cited statutes should be interpreted to mean "county judge/executive." Thus, when an act is directed toward "county court," the act instead should be directed to the county judge/executive. This office believes that no strictly judicial function is involved and that the General Assembly apparently intended that the county judge/executive be the acting authority.
We believe the answer to question two may be found in the provisions of KRS 242.050 and KRS 242.129, which deal with the form of the question to be placed upon the ballot. The ballot question in the first statute is, "Are you in favor of the sale of alcoholic beverages in . . .?" The ballot question in the second statute, in relation to cities of the fourth class, is, "Are you in favor of the sale of distilled spirits and wine by the drink for consumption on the premises in . . .?"
We are aware of no other statute which would allow the voters to pick and choose a particular type or form of sales, thereby limiting the specific ballot question required by the General Assembly of Kentucky. Our answer to question two, then, would be "no."