Released for Publication September 11, 2014.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-001583-MR. FRANKLIN CIRCUIT COURT NO. 10-CI-00991.
FOR APPELLANT: Michael J. O'Connell, David A. Sexton.
FOR APPELLEE, O'SHEA'S BAXTER, LLC (D/B/A FLANAGAN'S ALE HOUSE: Kenneth Sidney Handmaker, Kevin Lee Chlarson.
FOR APPELLEE, COMMONWEALTH OF KENTUCKY, ALCOHOLIC BEVERAGE CONTROL BOARD: David A. Smith, Stephen Bryant Humphress.
OPINION OF THE COURT BY JUSTICE SCOTT. All sitting. All concur.
This appeal arises from a challenge by O'Shea's-Baxter, LLC, d/b/a Flanagan's Ale House (Flanagan's) to an order of the, Alcoholic Beverage Control Board (ABC Board) upholding the Louisville/Jefferson County Government's (Louisville Metro) denial of Flanagan's's application for a retail drink license. The issues involved in the present action concern KRS 241.075, which prohibits the issuance of a retail drink license to an applicant located in a " combination business and residential area of a city of the first class or consolidated local government if another " similar establishment" is located within 700 feet of the applicant. Flanagan's challenges the constitutionality of KRS 241.075 on the grounds that it (1) constitutes local and special legislation in violation of Sections 59 and 60 of the Kentucky Constitution, (2) exercises arbitrary power and fails to provide for equal protection under the law in contravention of Section 2 of the Kentucky Constitution, and (3) unconstitutionally delegates zoning powers vested in local governments to the state. The Court of Appeals ruled that the statute was unconstitutional local and special legislation in violation of Sections 59 and 60 of the Kentucky Constitution. We affirm the Court of Appeals' ruling.
Flanagan's operates at 934 Baxter Avenue in Louisville, where it serves food and drink to the public. In April 2007, Flanagan's applied for a retail liquor drink license to replace its restaurant drink license. Louisville Metro's local ABC administrator denied the application, relying on the 700-feet restriction of KRS 241.075.
Thereafter, Flanagan's appealed the administrator's decision to the ABC Board. Citing KRS 241.075, the ABC Board entered a final order affirming Louisville Metro's denial of Flanagan's's application for a retail liquor drink license. Flanagan's appealed the ABC Board's decision to the Franklin Circuit Court, arguing that KRS 241.075 is unconstitutional because the statute's 700-feet requirement only applies to businesses in certain parts of first-class cities and consolidated local governments and, therefore, the statute is discriminatory and in violation of the proscription on special legislation found in Sections 59 and 60 of the Kentucky Constitution.
The circuit court declined to declare KRS 241.075 unconstitutional, holding that an important public purpose was served by limiting the density of establishments authorized to serve and sell liquor in the " combination business and residential areas" of Louisville Metro. Accordingly, the circuit court denied Flanagan's's motion for summary ...