Request By:
Mr. J. Harold Sizemore
Clay County Sheriff
P.O. Box 443
Manchester, Kentucky 40962
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The following facts were stated in your letter concerning a problem with certain places of entertainment:
"During the past few months we have had several pool rooms, restaurants, and individuals, who have closed their present business or just opened what they are calling private clubs, etc. Clay Co. Mens Club, V.F.W., Moose, and Amvets Post.
"I know that under the case of Veteran's of Foreign Wars v. Scott, 278 S.W.2d 733, that private clubs are required to obtain a permit to operate a place of entertainment. It appears that the members of these clubs want to have alcoholic beverages on the premises for their use. With this it has brought several complaints from wives of the members as well as other members of the community. This has brought several questions from citizens as well as club owners or agents and law enforcement officers as to violations of Ch's 242 and Ch. 231."
Question No. 1:
"Does a permit for a place of entertainment issued for private clubs, place the premises under the same definition of a public place as used in regards to a restaurant or pool room?"
Under the definitional statute, KRS 231.010, a "place of entertainment" includes a place offering intoxicating drinks for sale. A permit is necessary to operate a "place of entertainment" outside the corporate limits of a city. KRS 231.020. The old Court of Appeals, in Veterans of Foreign Wars v. Scott, Ky., 278 S.W.2d 733 (1955), held that private clubs offering for sale intoxicating drinks to members of their club come within the definition of "place of entertainment" , pursuant to KRS 231.010. This holding presupposes a permanent or continuous operation type of club. The key to KRS 231.010 lies in the specifically described activity or activities. Here you specifically mentioned the making available of alcoholic beverages. However, where the club does not actually sell any intoxicating drinks, i.e., where the intoxicating drinks are simply made available to members and their friends, without sale, such making available of alcoholic beverages would not qualify, on that factual basis, as a "place of entertainment. " In addition, no permit can be issued under KRS 231.010, et seq., where alcoholic beverages are for sale in a dry county. The permit does not envision the violation of any law, ABC or otherwise.
Question No. 2:
"If a member of a private club is observed drinking alcoholic beverages by an officer making a routine inspection can the member be charged under KRS 244.020."
A public place, as mentioned in KRS 244.020, is generally a place which is accessible to the public and to which the public is invited. See Ginter v. Commonwealth, Ky., 262 S.W.2d 178 (1953) 179; Williams v. Commonwealth, Ky., 261 S.W.2d 807 (1953); and Mahon v. Bueschel Sewer Construction District #1, Ky., 355 S.W.2d 683 (1962) 685.
A private club, which does not permit access to the public, does not qualify as a public place under KRS 244.020. Thus the member of the private club cannot be charged under KRS 244.020, where the member is drinking an alcoholic beverage in the private club.
Question No. 3:
"Are the officers or agents of a private club in violation of any section of Ch. 528 when they provide a table, cards, and a locked room, for the purpose of its members playing poker?"
Where such officers or agents advance gambling activity (see KRS 528.010(1) and (3), they could be charged under KRS 528.030 (promoting gambling in the second degree).
Question No. 4:
"If a permit was issued under the name of Doe and Brown to operate a place of amusement and they convert to a private club and file incorporate papers to this effect, does this constitute the need to file for a new permit? "
If the conversion to a private club involves any of the activities described in KRS 231.010, and if such activities to be engaged in by the private club were previously engaged in under its present permit, then no new permit would be indicated, unless the manager or owner who held the permit is changed. Permits are issued to the manager or to the owner of a place of entertainment. KRS 231.020. It is the described activity or activities under KRS 231.010 and the manager or owner which are controlling here, not the mere fact that the place of entertainment has switched from a public to a private place.
Question No. 5:
"In Dry Local Option Territory can a private club possess and store alcoholic beverages on its premises for the use of its members? Where it is under the care and control of someone other than the individual member. Example, a bottle of whiskey with the members name taped on it, or sitting on a table, behind the counter, and or beer either by the case or half case with the members name wrote on it, in a cooler along with other members names on various cases."
We assume in this question that the club is not engaged in the sale of alcoholic beverages of any kind, but is merely storing, marking, and making available alcoholic beverages to the specific club member owners thereof in dry territory.
KRS 242.230 provides:
"(1) No person in dry territory shall sell, barter, loan, give, procure for or furnish another, or keep or transport for sale, barter or loan, directly or indirectly, any alcoholic beverage.
"(2) No person shall possess any alcoholic beverage unless it has been lawfully acquired and is intended to be used lawfully, and in any action the defendant shall have the burden of proving that the alcoholic beverages found in his possession were lawfully acquired and were intended for lawful use."
The drinking of alcoholic beverages in a private club, whether in a wet or dry county, is not a crime. Lewis v. Commonwealth, 197 Ky. 449, 247 S.W. 749 (1923). KRS 242.230 only prohibits the possession of alcoholic beverages when that possession is for the purpose of sale in a dry territory or the possession has been unlawfully acquired. The local option law does not prohibit a person's possessing or consuming alcoholic beverages for his own personal consumption in a private place. Roberts v. Commonwealth, 284 Ky. 31, 143 S.W.2d 856 (1940). The statute, to be applicable, involves possession for the purpose of trafficking in liquor in dry territory. Thus liquor lawfully acquired and lawfully used is outside of this prohibition. The mere possession of alcoholic beverages in local option territory does not constitute an offense. It is not a criminal offense to transport alcoholic beverages by either public or private conveyance into dry territory for personal use. Holbrook v. Commonwealth, Ky., 327 S.W.2d 950 (1959).
A private club can make a club member's whiskey available to him for his consumption in the club house.
Question No. 6:
"Could any person who holds a permit for a place of entertainment be charged under KRS 231.110 who permits the consumption of alcoholic beverages on the premises?"
As explained under Question No. 5, a private club member may drink his own liquor in the club. Now, where a private club does not offer alcoholic beverages for sale, nor engages in any described activities under KRS 231.010, no permit is indicated. However, assume that a private club does offer alcoholic beverages for sale in a county in which such sales are legal, still KRS 231.110(1) would prohibit the permit holder from allowing drunken, disorderly or boisterous persons, etc., from congregating in or about such premises.
Question No. 7:
"Is a search warrant needed or required before an officer enters the premises for determination that the premises is being used as a place of entertainment? "
Under KRS 231.130, the sheriff, deputy sheriff and county patrolmen of each county are required to visit places of entertainment regularly. Upon their observing any violations of KRS Chapter 231, by the owner or manager, they shall make arrests without warrants for violations committed in their presence. Thus you and your staff (as well as county policemen) can visit periodically "places of entertainment" , operating under a permit from the county judge executive, without having a search warrant in your possession. In Kentucky, a search implies a prying into hidden places for that which is concealed. It is not a search if the object is open to view. Baril v. Com., Ky., 612 S.W.2d 739 (1981) 742. It is merely a matter of going inside the place of entertainment in order to physically observe whether the place is in reality being operated as a place of entertainment, as defined in KRS 231.010. In addition, under the literal language, you and your staff may enter, without a search warrant, a place of entertainment in order to determine whether the owner or manager has in fact a permit for the operation, assuming you have reasonable cause to believe that it is being operated as a place of entertainment. KRS 231.130 carries no mention of a search warrant.
Question No. 8:
"Under KRS 231.130, which requires the inspection of places of entertainment, should entry be refused by owner or agent of a private club or any establishment what course of action does an officer have?"
Assuming that a place is under a known permit or that you have reasonable cause to suspect that it is a place of entertainment, as defined by statute, in order to discharge your duty under KRS 231.130, you or your deputies may use reasonable force in effecting an entrance to such places of entertainment. Note that the right of inspection without a warrant is specifically extended to ABC administrators in cities of the first class by KRS 231.170.
Question No. 9:
"If a place of entertainment is rented or leased for one night by an individual for the purpose of a private party in which they plan to serve or permit the guest to bring their own bottle, is there a violation of any of the statutes, and if so who would be charged?"
Assuming that the place of entertainment is under a permit, under these facts we see no violation of any statute. Here the place is temporarily the situs of a private party with no alcoholic beverages being sold. The owner or manager who holds the permit is required by KRS 231.030 to obey the laws of the state in carrying on such business. Here we assume that the permit holder will see to it that KRS 231.030, 231.100, and 231.110 are properly obeyed in this situation, otherwise he could suffer a forfeiture of his permit for a violation of KRS Chapter 231. See especially KRS 231.110, prohibiting certain conduct on such premises.