Request By:
Lieutenant Robert S. Perry
Campbell County Police Department
Courthouse
Alexandria, Kentucky 41001
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Suzanne Guss, Assistant Attorney General
This is in response to your request for an opinion of this office regarding an interpretation of KRS 244.090(1) (a). You have asked whether a felon convicted within the last two years may be employed in a cafe under circumstances where his conviction was not directly or indirectly attributable to the use of intoxicating liquors. The answer is yes.
In 1974 at the Regular Session of the General Assembly, the Legislature amended KRS 244.090(1)(a) to read as follows:
"(1) No person holding any license under KRS 243.020 to 243.670 shall knowingly employ in connection with his business, in any capacity whatsoever, any person who:
(a) Has been convicted of a felony or of any misdemeanor or offense directly or indirectly attributable to the use of intoxicating liquors, within the last two (2) years."
The question you have presented was addressed by the Kentucky Supreme Court in Commonwealth, Alcoholic Beverage Control Board v. Lexington Johnnie's, Inc., Ky., 553 S.W.2d 694 (1977). The Supreme Court held that since subsection (1)(a) prohibited employment where an individual has been convicted (1) of a felony; (2) or of any misdemeanor; (3) or offense directly or indirectly attributable to the use of intoxicating liquors, the Court concluded that the Legislature "intended to exclude from employment in such establishments persons who had been convicted of a felony, no matter the circumstances under which the conviction was had." Id. at 695.
However, in 1978, at the Regular Session of the General Assembly the Legislature amended KRS 244.090(1)(a) as follows:
"(1) No person holding any license under KRS 243.020 to 243.670 shall knowingly employ in connection with his business, in any capacity whatsoever, any person who:
(a) Has been convicted of any [a] felony, [or of any] misdemeanor or offense directly or indirectly attributable to the use of intoxicating liquors, within the last two (2) years." (Terms underlined were added and terms bracketed were deleted).
It is presumed that the Legislature was informed of the construction that the 1974 amendment received in Commonwealth, Alcoholic Beverage Control Board v. Lexington Johnnie's, Inc., supra. Commonwealth v. Boarman, Ky.App., 610 S.W.2d 922 (1980). Legislative intent may be determined by comparing a statute to a prior act of which it is a revision. City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517 (1955). By reenacting the statute with the changes set forth it is clear that the Legislature did not intend to adopt the construction given by the Kentucky Supreme Court in Commonwealth, Alcoholic Beverage Control Board v. Lexington Johnnie's, Inc., supra. By deleting from subsection (a) the very words upon which the Supreme Court relied in construing the subsection, the Legislature clearly rejected that construction. The omissions as well as the language used are of significance. Davis v. Commonwealth Life Insurance Co., Ky., 284 S.W.2d 809 (1955). The language used, as well as the omissions reasonably imply an intent to prohibit employment of persons convicted of any felony, misdemeanor or offense, only if those offenses are directly or indirectly attributable to the use of intoxicating liquors.
We trust this information has answered your inquiry. If you have any further questions please contact us.