Recent Publications
March 5, 2009
Supreme Court of Kentucky Upholds Agency's Measurement of 700-Foot Distance Required Between Bars in Louisville, Avoiding Constitutional Challenge
Peter
M.
Cummins
The Supreme Court of Kentucky recently endorsed the Kentucky Alcoholic Beverage Control Board’s interpretation of the 700-foot distance required between retail drink licensees in Louisville. In
Louisville Metro v. Molly Malone’s, 2007-SC-315-DG (Feb. 19, 2009), the Supreme Court upheld the ABC Board’s conclusion that “KRS 241.075(3)’s requirement that the [700-foot] measurement be taken according to the ‘shortest route of ordinary pedestrian travel’ means a route that is both lawful and safe.” This conclusion permitted Molly Malone’s, a popular bar in the busy Bardstown Road/Baxter Avenue corridor of Louisville, to retain its retail drink license despite the location of two other retail drink licensees directly across the street. The ABC Board and the Supreme Court reached this conclusion by determining that a pedestrian route directly across Baxter Avenue from one bar to the other, while lawful, was not safe. The Court concluded that by following the shortest lawful and safe pedestrian route through the closest marked crosswalk, the distance between establishments exceeded 700 feet.
In light of its agreement with Molly Malone’s on this issue of statutory interpretation, the Supreme Court bypassed the more significant constitutional challenge to the statute. Molly Malone’s contended, and the lower court had agreed, that KRS 241.075 violated Sections 59 and 60 of the Kentucky Constitution because it applied only to establishments located in the Louisville Metro area. The Supreme Court avoided this challenge by upholding the ABC Board’s determination on its merits.
The
Molly Malone’s Court acknowledged that its interpretation “likely means the [ABC] Board will grant more licenses,” but concluded that the ABC Board was within its discretion to interpret the statute as it did. Another likely result of Molly Malone’s that the Court did not mention is that the unresolved constitutional challenge will no doubt be litigated again, forcing the courts to rule on the constitutionality of KRS 241.075.
Peter M. Cummins is a Member of Frost Brown Todd LLC, practicing out of its Louisville, Kentucky office where he concentrates his practice in the area of business litigation. You can reach Peter at (502) 589-5400 or , and can learn more about Frost Brown Todd’s Hospitality Industry Service Group by clicking here.