Request By:
Mr. Harold Cornish
Anderson County Sheriff
Lawrenceburg, Kentucky 40342
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Questions concerning places of entertainment which are being operated without permits are raised in your letter, which reads in part:
"At one time in Anderson County there were numerous roadhouses operating under permits. Recently there has been one open up in the county and they have music and dancing every weekend. Everyone seemed to have forgotten that they were supposed to have a permit. They have been open for several months. My question is this - While they are applying for a permit, do I have to close them down or can a temporary permit be issued?
"Also, I need to know what the sheriff's duty is in this matter. Am I allowed to let them stay open until they have an opportunity to get their permit or can they stay open only if they stop the music and dancing until after they get their permit? Under the law, what type of place constitutes a place of entertainment and has to have a permit?"
The roadhouse, which offers dancing and music, comes under the definition of a place of entertainment, as described in KRS 231.010. We assume that such entertainment is not offered for free, but for a commercial sum of money. You say it is outside the city limits. It cannot be operated without a permit, according to KRS 231.020. There are no statutory provisions for a temporary permit. The obtaining of a permit is a condition precedent to its lawful operation. Such a place should not operate at all until a permit is obtained from the county judge executive. Note that KRS 231.040 relating to an application for a permit, speaks of "the proposed place of entertainment" , not the "operating place of entertainment. "
KRS 231.990(1) provides, for a violation of KRS 231.020, a penalty of a fine of not more than two hundred dollars ($200) or confinement in the county jail for not more than ninety (90) days, or both. Each day that a place of entertainment is operated without a permit shall be a separate offense.
Since the subject place of entertainment does not presently have a permit, and regardless of any pending application or not, the owner or manager, in operating such place, is in violation of KRS 231.020 and is subject to your arrest. See KRS 431.005(1)(d), providing that a peace officer may make an arrest without a warrant when a misdemeanor, as defined in KRS 431.060(2), has been committed in his presence. The responsibility for procuring a permit prior to operating such a business is clearly upon the shoulders of the owner or manager of such place of entertainment. As a law enforcement officer your only concern is that: (1) in Act and under KRS 231.010 it is a place of entertainment, and (2) the place of entertainment is being operated without a permit. See
Patton v. Commonwealth, 288 Ky. 324, 156 S.W.2d 179 (1941). You can call on your county attorney if you have any question concerning whether or not those two elements we just described co-exist. Assuming that this is a place of entertainment and that it is being operated without a permit, you have no authority to permit it to be operated pending application and receipt of a permit. You can only proceed to arrest the owner or manager for a violation of KRS 231.020, where they are actually operating such place of entertainment.
Under KRS 231.010, a place of entertainment includes a roadhouse, offering either food, drink, dancing, or music, for a commercial sum of money, on a permanent basis and as a continuous operation (even though it is operated only on weekends) . See
Veterans of Foreign Wars v. Scott, Ky., 278 S.W.2d 733 (1955). When we say "for a commercial sum of money" , we mean that the place in question has customers who pay for either drinks, food, or for the privilege of dancing or listening to music.
The permit does not envision the violation of any law, ABC or otherwise.
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 violation of KRS 231.020, by the owner or manager, they shall make an arrest without warrants for such violation committed in their presence. See