Request By:
Hon. James G. Adams, Jr.
Assistant Christian County Attorney
209 East Fourteenth Street
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to this office in which you requested an opinion of the Attorney General to determine which statute should be used to prosecute employees of retail licensees for selling alcoholic beverages to a minor. In your letter, you note that KRS 244.080 prohibits retail licensees which are engaged in the sale of alcoholic beverages from selling alcoholic beverages to minors. You also note that KRS 530.070 (unlawful transaction with a minor in the second degree) prohibits individuals "other than a retail licensee" from selling or giving away alcoholic beverages to minors. However, you note that KRS 244.080 applies only to persons who are acting as a "retail licensee. " You ask the Attorney General to address "whether the term 'retail licensee' in KRS 244.080 is broad enough to include those persons employed by the retail licensee. "
We are of the opinion that KRS 244.080 prohibits a person while acting as an employee of a retail licensee from selling alcoholic beverages to a person under twenty-one years of age. KRS 244.080, states, in pertinent part, as follows:
No retail licensee shall sell, give away or deliver any alcoholic beverages, or procure or permit any alcoholic beverages to be sold, given away or delivered to:
(1) A minor . . . .
The issue presented by your letter is whether the statute is broad enough to include the employees of licensees. Unfortunately, the term "retail licensee" is not specifically defined by the statutes. The definitions contained in KRS 241.010 are incorporated by reference by KRS 244.010, for the purposes of KRS Chapter 244. Krs 241.010 defines a "licensee" as "any person to whom a license has been issued, pursuant to KRS 243.020 to 243.670," while KRS 241.010 defines "retailer" as "any person who sells at retail any alcoholic beverage for the sale of which a license is required." Strictly speaking, a person who does not personally hold a license to sell alcoholic beverages is not a "licensee" but is a "retailer" if he sells alcoholic beverages as an employee of a "licensee. " Thus, for the sake of clarity, we believe that a "retail licensee" is a person who is both a retailer under KRS 241.010 and a licensee under KRS 241.010.
First, we note that the question is not whether such an employee can be personally prosecuted for selling alcoholic beverages to minors. Obviously the employee can be prosecuted for violating at least one of two statutes, since one statute prohibits the sale of alcoholic beverages by "retail licensees" and the other statute prohibits such sales by persons "other than a retail licensee. " Clearly the employee must be subject to prosecution under one statute or the other, either KRS 244.080 or KRS 530.070. The issue is under which of the two statutes may an employee of a licensed retailer be prosecuted when he sells alcoholic beverages to a minor. To determine the extent of the employee's personal liability, we refer to KRS 502.060, which states as follows:
A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if the conduct were performed in his own name or behalf.
KRS 446.010(8) states that the term, "'corporation' may extend and be applied to any corporation, company, partnership, joint stock company or association." KRS 446.010(7) states that a "'company' may extend and be applied to any corporation, company, person, partnership, joint stock company or association."
In making statutory interpretations, we must also look to the intent of the legislature, as required by KRS 446.080, which states in pertinent part, as follows:
(1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the laws of this state.
Furthermore, in
Newbolt v. Board of Ed. of Berea Independent School Dist., Ky., 409 S.W.2d 513 (1966), the court held, " . . . the courts will consider the purpose which the statute is intended to accomplish . . . . And the courts will not give a strict literal construction to a statute if it would lead to an unreasonable or absurd conclusion." Id. at 514. See also
Kentucky Mountain Coal Company v. Witt, Ky., 358 S.W.2d 517, 518 (1962). In
Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489 (1974), the court held, "the policy and purpose of the statute will be considered in determining the meaning of the words used." Id. at 491.
The legislative intent of KRS 244.080 is obviously to prohibit retail licensees as well as their employees working under their direct supervision and control from selling alcoholic beverages to minors. We believe that the statute is sufficiently broad to include the employees acting in their scope of employment by retail licensees as well as the retail licensees themselves, since the KRS 244.080 appears to be directed more toward retail businesses, while KRS 530.070 appears to be directed toward private persons acting in their private capacities.
We note that in these situations, the retail licensee is held to a strict liability standard for the direct illegal acts of his employee. Although the offense might be directly committed by the employee, the retail business is held accountable. For this reason, we believe that both the retail licensee and the employee should each be charged with the same offense.
For these reasons, we are of the opinion that KRS 244.080 prohibits a person acting as an employee of a retail licensee from selling alcoholic beverages to a person under twenty-one years of age.