Request By:
Mr. Neal Smith
Attorney at Law
204 Scott Avenue
P.O. Box 112
Pikeville, Kentucky 41501
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter presents the question of the applicability of KRS Chapter 231, relating to permits for places of entertainment, to private, charitable organizations. It reads in part:
"I am writing in regard to a question which has arisen during my representation of a client in Pike County, Kentucky. As you are aware Chapter 231 of the Kentucky Revised Statutes restricts the issuance and control of entertainment permits throughout the State of Kentucky. This is, of course, handled through the office of the County Judge Executive and provisions of that chapter also deal with the violations of any permit.
"There are several clubs who operate without permits due to their association or affiliation with membership groups such as the Elk's Club, Moose Club or other such charitable organization which attempts to serve a community purpose. My question is whether an entertainment permit need be issued to such an establishment if the membership is indeed private and only card carrying members are admitted. I would appreciate your response as soon as it is convenient for you to consider this matter, as a club has been organized and I have advised them to refrain from doing business until I receive an opinion from your office."
KRS 231.020 provides that no place of entertainment shall be operated outside the corporate limits of a city unless its owner or manager has a permit, issued to him by the county judge executive in the county in which the place of entertainment is located, granting to him the privilege to operate the place of entertainment in that county. The county attorney is required to investigate the applicant. A hearing on the application is afforded. See KRS 231.070 and 231.080.
Your question is whether or not private or charitable clubs or organizations come within the operative provisions of KRS Chapter 231.
A place of entertainment is defined in KRS 231.010:
"As used in this chapter, 'place of entertainment' means a roadhouse, place offering intoxicating or nonintoxicating drinks for sale, tourist camp or place of public entertainment at which people assemble to eat, drink, dance, bathe, or engage in any game or amusement, or any place having therein or thereon any person engaging in the practice of being a medium, clairvoyant, soothsayer, palmist, phrenologist, spiritualist, or like activity, or one who, with or without the use of cards, crystal ball, tea leaves, or any other object or device, engages in the practice of telling the fortune of another; but this last clause shall not be construed to apply to persons pretending to tell fortunes as part of any play, exhibition, fair or amateur show presented or offered by any religious, charitable, or benevolent institution. It shall not mean a private home at which bona fide guests are entertained, drive-in theaters, places of business conducted only as filling stations for motor vehicles or grocery stores, nor transient or temporary entertainment such as circuses, carnivals and county fairs."
We assume that the club you have in mind will provide for its membership certain social amenities, including eating, drinking, dancing, games of amusement, and other entertainment. We assume that the club will operate outside of the corporate limits of a city, pursuant to KRS 231.020. We also assume that the club will operate on a permanent basis, and that its activities will not be of a transitory, spasmodic, or temporary nature.
Under the definitional statute, KRS 231.010, the club falls within the definition. In Veterans of Foreign Wars v. Scott, Ky., 278 S.W.2d 733 (1955), the V.F.W. post agreed that it was offering for sale intoxicating and nonintoxicating drinks to the members of the club; and that the members assemble at the club to eat, drink, dance and engage in entertainment. The old Court of Appeals wrote that "We construe the phrase 'place of entertainment' as it is used and defined by statute to include a private club such as the one in question." Thus the court ruled that the V.F.W. would have to procure a permit under KRS Chapter 231 in order to operate.
Even though the club does not actually offer intoxicating or nonintoxicating drinks for sale, as such, it would be a place of entertainment and subject to a permit if the club affords its members any of the simple amenities such as a place for relaxing and talking, eating, drinking or engaging in games or other kinds of amusement. The statute emphasizes the term "entertainment" and expressly mentions various types of entertainment which were intended to be embraced within the term "entertainment" .
The court, in the Lexington V.F.W. case, observed that if the legislature had intended to exempt private clubs from the operation of the statute, such an exemption would have been provided for in the definition of the term "place of entertainment" . We find no such exemption of private or charitable clubs in KRS 231.010. In the recent case of Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984), the court observed that "A legislature making no exceptions to the positive terms of a statute is presumed to have intended to make none. Commonwealth v. Boarman, Ky.App., 610 S.W.2d 922 (1980)." (Emphasis added).
CONCLUSION
It is our opinion that private clubs operating on a regular schedule and permanent basis and affording entertainment to its members of the kinds outlined in KRS 231.010 is required, in order to operate, to procure a permit, as provided in KRS Chapter 231.