Request By:
The Honorable Glen Shepherd
Mayor of Cumberland
402 West Main Street
Cumberland, Kentucky 40823
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Suzanne Guss, Assistant Attorney General
Thank you for your recent letter to this office. According to your letter and the accompanying ordinance enacted in 1950, the city council of Cumberland, a fourth class city, created the office of City Alcoholic Control Administrator and vested the powers and duties of that office with the mayor. Based upon these facts you have posed the following question: whether the only franchised beer distributor in the city of Cumberland may simultaneously hold the office of mayor and alcoholic beverage control administrator.
Before answering this question, we wish to point out that the ordinance itself does not comply with the statutory authority governing the creation of the position of city alcoholic beverage control administrator. KRS 241.160 states that a fourth class city shall by ordinance create the office of administrator or shall assign the duties of this office to a presently established city office. In the present case, the municipal office was created by ordinance. Therefore, the portion of the ordinance which appoints the mayor to the position of city alcoholic beverage control administrator is in violation of KRS 61.080(3) and Kentucky Constitution § 165 which prohibit any person from filling two municipal offices at the same time. (See also OAG 43,920, wherein this issue was addressed by this office in response to a question submitted in 1959 by the Cumberland City Clerk).
The city council may, of course, amend or revise the ordinance to state that the duties of administrator shall be assigned to the office of mayor, thereby avoiding the creation of a separate municipal office. However, under the facts as presented, a mayor who holds a malt beverage distributor's license would be precluded from serving as administrator pursuant to KRS 241.170 which states:
(3) No person shall be city administrator . . . who would be disqualified to be a member of the board under KRS 241.100.
KRS 241.100 prohibits a person from serving as a member of the board where that person has "any interest in any of the premises or business where alcoholic beverages are manufactured, stored or sold." A person who holds a malt beverage distributor's license is authorized to store malt beverages and to sell them from licensed premises to other distributors, licensed retailers, to employees for home consumption, and to charitable or fraternal organizations for group ventures. Accordingly, in a situation where the mayor holds a malt beverage distributor's license, the mayor would be prohibited from serving as alcoholic beverage control administrator.
We hope that this satisfactorily answers your inquiry. If we can be of any further assistance, please do not hesitate to contact us.