Request By:
Mr. James E. Boyd
Franklin County Attorney
Courthouse
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have requested our opinion on the following question concerning the leasing of surplus county property:
"Is there any statutory or regulatory prohibition that would prohibit Franklin County from leasing a County owned building to a restaurant business which would have a retail beer, wine or mixed drink license issued by the Alcoholic Beverage Control Board?"
We assume you are referring to a proposed lease of surplus county real property to a person who will conduct a restaurant in such county building, which proposed lease was dealt with in OAG 83-417. We concluded in that opinion that the Franklin County Fiscal Court may lease the building for any term it deems desirable, in the sound judgment of the fiscal court, such that it reasonably appears that such term and conditions imposed are beneficial to and in the interest of the citizens of Franklin County.
We assume that the county property will be leased to the person you mentioned in the earlier correspondence for a restaurant operation, and that the lessee will apply for and receive a license covering retail beer, wine or mixed drinks as a part of the restaurant operation, pursuant to KRS Chapter 243.
We are unaware of any statute or regulation which would prohibit Franklin County from leasing its building to the subject restaurant business holding a license for the sale of drinks etc. Of course, it is the responsibility of the lessee, under the A.B.C. statutes and regulations, to abide by any applicable regulation or statute covering the use of the alcoholic beverage license. See KRS 243.490, 243.500, and 243.520. Also see 804 KAR 4:150, 804 KAR 5:040, and 804 KAR 7:040. Also note KAR 242.1295, providing that such a license to a restaurant operator shall be conditioned on the applicant's demonstrating to the administrator that gross receipts of the restaurant from the sale of food for consumption on the premises is reasonably estimated to be not less than fifty percent (50%) of the total gross receipts of such restaurant for the licensing period.
While KRS 244.020(1) prohibits any person from drinking any alcoholic beverage in a "public place" , we have concluded that a drink license permits a person to drink alcoholic beverages (covered by the license) in a licensed restaurant. The legislature has properly delegated the authority for the issuance of such licenses to the Department for Alcoholic Beverage Control. Where a proper license has been correctly issued, a person may consume alcoholic beverages on the premises where purchased. This is strongly implied in KRS 243.020(3), which provides that "No person, conducting a place of business patronized by the public, who does not hold a license to sell distilled spirits and wine by the drink, shall permit any person to sell, barter, loan, give away or drink distilled spirits or wine on the premises of his place of business. " In that context, it is meaningless to say you can sell it to a customer, but the customer cannot drink it in the restaurant. On what is a "public place" , see KRS 525.010(2) and Ginter v. Commonwealth, Ky., 262 S.W.2d 178 (1953). The court held that a combined beer tavern and restaurant is a public place within the meaning of KRS 244.020(2) (which subsection prohibits drunkenness in a public place) .
CONCLUSION
We know of no statute or administrative regulation which prohibits the sale or consumption of alcoholic beverages, under a license issued pursuant to KRS Chapter 243, on premises owned by the county and leased to an individual for the purpose of operating a restaurant.