TITLE XI: BUSINESS REGULATIONS
Chapter
110. ALCOHOLIC BEVERAGES
111. ADULT ENTERTAINMENT ESTABLISHMENTS
112. BUSINESS AND OCCUPATION LICENSE FEES
CHAPTER 110: ALCOHOLIC BEVERAGES
Section
General Provisions
110.01 Purpose
110.02 Definitions
110.03 Scope
110.04 Licenses; scope
110.05 Duties of City Alcoholic Beverage Control Administrator
110.06 Hours for sale and delivery; restrictions
110.07 Conditions, prohibitions, and restrictions
110.08 Enforcement
110.09 Effective date
Licensing
110.20 Application
110.21 Fees
110.22 Refund of license fees
110.23 Lost or destroyed license
110.24 Temporary closing
110.25 Revocation or suspension
110.26 Notice to licensee; surrender of license; hearing
110.27 Transfer or assignment
110.28 Refusal of license
110.29 Review of license
110.30 Change of information
110.31 Dormancy
110.32 Approval of premises
110.33 Delinquent taxes or fees
110.34 Books, records, and reports
110.99 Penalty
GENERAL PROVISIONS
§ 110.01 PURPOSE.
(A) The purpose of this chapter is to establish uniform regulations and requirements for the licensing and regulation of alcoholic beverage sales pursuant to KRS 242.185(6) for any restaurant or dining facility which seats a minimum of 100 persons and which derives a minimum of 70% of its gross receipts from the sale of food and pursuant to KRS 242.123 for any 9 or 18 hole regulation golf course that has been approved for the limited sales of alcoholic beverages.
(B) To realize this intent, the County of Shelby shall implement this chapter in a manner as to assure that:
(1) Restaurants and dining facilities licensed under this chapter shall seat a minimum of 100 persons. Only permanent seating, excluding bar-type stools, patio seating or temporary chairs available as needed, satisfies this seating threshold. This seating must comply with all fire and safety capacity ratings and regulations.
(2) The sale of alcoholic beverages shall be accessory to the sale of food, offered only during times in which the licensee's kitchen and food service staff is on duty.
(3) Restaurants and dining facilities licensed under this chapter shall derive a minimum of 70% of their gross receipts from the sale of food as certified by periodic documentation.
(4) Nine or 18 hole golf courses that have been approved for the limited sale of alcoholic beverages pursuant to KRS 242.123.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.02 DEFINITIONS.
The definitions of the words used throughout this chapter, unless the context requires otherwise, shall have the same meaning as those set out in the Kentucky Alcoholic Beverage Control law (KRS Chapters 241, 242, 243 and 244) of the Commonwealth of Kentucky and all amendments and supplements thereto.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.03 SCOPE.
(A) This chapter shall only apply to the sale of malt, wine and distilled spirits on the premises of the licensee. Nothing in this chapter shall excuse or relieve the licensee, or the agent or any employee of any licensee thereof from the restrictions, requirements and penalties of any other Ordinance or Ordinances of the County or of any statutes of the Commonwealth of Kentucky relating to violations pertaining to alcoholic beverages.
(B) Adoption of State Alcoholic Beverage Control law. The provisions of the Alcoholic Beverage Control Law of the Commonwealth of Kentucky (KRS Chapters 241, 242, 243 and 244) and all amendments and supplements thereto, are adopted so far as applicable to this chapter except as otherwise lawfully provided herein.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.04 LICENSES; SCOPE.
Under this chapter a license shall only be extended to the owners and/or operators of those establishments which qualify under KRS 242.185(6) and KRS 242.123.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.05 DUTIES OF THE OFFICE OF THE CITY ALCOHOLIC BEVERAGE CONTROL ADMINISTRATOR.
(A) The duties of the office of County Alcoholic Beverage Control Administrator (hereinafter referred to as County A.B.C. Administrator) shall be administered by the County Judge Executive unless he or she shall appoint a County A.B.C. Administrator.
(B) The salary for this office, if any, shall be fixed from time to time by Fiscal Court.
(C) The functions of the County A.B.C. Administrator shall be the same with respect to the County licenses and regulations as the functions of the A.B.C. Board of the Commonwealth of Kentucky (hereinafter referred to as A.B.C. Board) with respect to state licenses and regulations, except that no amendment to these regulations proposed by the County A.B.C. Administrator may be less stringent than the statutes relating to Alcoholic Beverage Control, or than regulations of the A.B.C. Board. No regulation of the County A.B.C. Administrator shall become effective until it has first been appropriately approved by the Shelby County Fiscal Court.
(D) No person shall be a County A.B.C. Administrator, an Investigator or an employee of the county under the supervision of the County A.B.C. Administrator, who would be disqualified to be a member of the A.B.C. Board under KRS 241.100. (KRS 241.170).
(E) The County A.B.C. Administrator shall have all authority as authorized under KRS Chapters 241 through 244.
(F) Should the County A.B.C. Administrator at any time have reasonable grounds to believe that any applicant, licensee, employee of a licensee, or any stockholder, agent or employee of a licensed corporation, has a criminal record, he or she shall have the authority to require the person to appear in person at the Shelby County Detention Center for the purpose of having his or her fingerprints taken.
(G) The County A.B.C. Administrator for entering upon his or her duties, shall take the oath as prescribed in Ky. Const. § 228, and shall execute a bond with a good corporate surety in the penal sum of not less than $5,000, and shall swear to faithfully perform the duties of his or her office pursuant to the provisions of KRS Chapter 62.
(H) The cost of any necessary bond required under this section shall be borne by the County of Shelby.
(I) Appeals from the orders of the County A.B.C. Administrator may be taken to the state A.B.C. Board by filing with the A.B.C. Board within 30 days a certified copy of the orders of the County A.B.C. Administrator. Matters at issue shall be heard by the A.B.C. Board as upon an original proceeding. Appeals from orders of the County A.B.C. Administrator shall be governed by KRS Chapter 13B.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.06 HOURS FOR SALE AND DELIVERY; RESTRICTIONS.
(A) Upon the licensee being granted a license pursuant to this chapter, it shall not be permitted to sell or dispense these beverages Monday through Saturday between the hours of midnight and 6:00 a.m.
(B) The licensee may not sell or dispense alcoholic beverages during the 24 hours of a Sunday, unless specifically authorized by statute.
(C) All delivery of alcoholic beverages in the County shall be made during normal business hours, Monday through Saturday. No delivery shall occur on Sunday.
(D) The licensee shall not sell or dispense any alcoholic beverages during the hours that the polls are open on any regular or primary election day.
(E) The licensee shall remain closed during the hours the polls are open on any regular or primary election day, unless it can provide a separate locked department in which all stock of distilled spirits, wine and malt beverages are kept during the hours the polls are open. KRS 244.290.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.07 CONDITIONS, PROHIBITIONS AND RESTRICTIONS.
(A) No gambling or game of chance, unless otherwise authorized by the Commonwealth of Kentucky, shall be permitted in any form on the licenses premises. Dice, slot machines, or any device of chance is prohibited and shall not be kept on the premises.
(B) It shall be unlawful for any licensee licensed under this chapter to have or maintain any radio receiving apparatus on the premises which is intentionally adjusted so as to receive police messages broadcast from any law enforcement agency in Shelby County, as it is now or may hereafter be operated. In addition to other penalties provided for the violation of this section, the Sheriff or the County A.B.C. Administrator shall have the authority to confiscate any and all radio receiving apparatus.
(C) The licensee shall be responsible for maintaining security on his or her premises, including providing adequate outside lighting to permit customers to utilize the parking area, and to promote the safety, health and welfare of the general public utilizing the licensed premise. Security standards are further necessary to discourage unlawful activity in and around the licensed premises.
(D) It shall be unlawful for the licensee under this chapter who sells alcoholic beverages of any kind, to give away or offer to give away anything tangible of value as a premium or prize, or for any other purpose in direct connection with the sale of alcoholic beverages.
(E) The licensee shall not sell or dispense alcoholic beverages to any person who is under 21 years of age.
(F) (1) The licensee shall display at all times in a prominent place, a sign at least 8 inches by 11 inches in 30-point or larger type which states as follows:
(2) Persons under the age of 21 are subject to a fine of up to $100 if they:
(a) Enter licensed premises to buy, or have served to them, alcoholic beverages;
(b) Possess, purchase or attempt to purchase, or get another to purchase alcoholic beverages; and
(c) Misrepresent their age for the purpose of purchasing or obtaining alcoholic beverages.
(G) The licensee, before commencing any business for which a license has been issued, shall post and display at all times in a conspicuous place in the room or principal room where the business is carried on so that all persons visiting the place may readily see the license.
(H) (1) The licensee shall not at any time post the license on premises other than the licensed premises or upon premises where traffic in alcoholic beverages is being carried on by any person other than the licensee, or knowingly deface, destroy or alter the license in any respect.
(2) The licensee shall post in a prominent place easily seen by patrons a printed sign at least 11 inches by 14 inches in size, with letters at least 1 inch high, supplied by the A.B.C. Commission, and with gender-neutral language supplied by the Cabinet for Health and Family Services, which shall warn that drinking alcoholic beverages prior to conception or during pregnancy can cause birth defects.
(3) A person who violates this section shall be subject to a fine of not less than $10 nor more than $50. (KRS 243.895.)
(I) Any off premises signage advertising the sale of alcoholic beverages is prohibited.
(J) No wholesaler or distributor shall sell any alcoholic beverages to any person in the County for any consideration except under the usual credit or cash terms of the wholesaler or distributor at or before the time of delivery. Nor shall any retail licensee sell to a purchaser for any consideration except for cash at time of purchase.
(K) (1) No licensee shall knowingly employ in connection with his or her business, in any capacity whatsoever, any person who:
(a) Has been convicted of any felony, misdemeanor or offense directly or indirectly attributable to the use of alcoholic beverages, within the last 2 years;
(b) Is under the age of 20 years who will be serving alcoholic beverages.
(c) Within 2 years prior to the date of his or her employment, has had any County license under this chapter revoked for cause.
(2) Violation of this section shall subject both employer and employee to penalties provided in this chapter and shall be cause for revocation of license.
(L) All persons who shall be serving alcoholic beverages shall undergo any training required by the state A.B.C. Office, the cost of which shall be the responsibility of the licensee.
(M) The licensee shall only distribute alcoholic beverages during times in which the licensee's kitchen and food service staff are on duty.
(N) All alcoholic beverages must be consumed on the premises.
(O) No licensee shall require a minimum cover charge or charge admission to the premises.
(Ord. 12-16-12, passed 12-16-2003)
2006 S-1
§ 110.08 ENFORCEMENT.
County Sheriff's deputies and the County A.B.C. Administrator are authorized to enforce this chapter for alleged violations.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.09 EFFECTIVE DATE.
This chapter shall take effect upon its passage and approval and publications as required by law.
(Ord. 12-16-12, passed 12-16-2003)
LICENSING
§ 110.20 APPLICATION.
(A) Before an application shall be considered, the applicant must publish a notice of its intent to apply for an alcohol beverage license in a newspaper meeting the requirements of KRS Chapter 424.
(1) The advertisement shall state the name and addresses of the members of partnership if the applicant is a partnership, as well as the name of the business and its address, or if the applicant is a corporation, the names and addresses of the principal office and directors of the corporation, as well as the name and addresses of the corporation itself, the location of the premises for which the license is sought, and the type of license for which application is made.
(2) The applicant shall attach to the application a newspaper clipping of the advertisement and proof of the publication as provided in KRS 424.170.
(B) All licenses granted under this chapter shall be approved by the County A.B.C. Administrator. Applications for the issuance of new license and for renewals of existing licenses shall be in writing and upon the forms provided by the A.B.C. Board and the County of Shelby, as amended and supplemented from time to time.
(C) (1) The application shall be verified and shall set forth in detail the information concerning the applicant and the premises for which the license is sought as required by the KRS, the A.B.C. Board and the County of Shelby including as follows:
(a) Name and address;
(b) Nature of interest;
(c) Whether or not a citizen of the United States;
(d) Date of birth;
(e) Date residence was established in Kentucky, if a resident of Kentucky. If Shelby County resident, indicate when residence was established;
(f) Whether or not he or she has any interest in any other license or corporation or partnership holding a license in any other state or province;
(g) Extent of stock ownership; and
(h) Whether or not he or she has any interest in any license or corporation or partnership holding a license in any other state or province.
(2) Each application shall be accompanied by a certified check, or postal or express money order for the license fee. Promptly upon receipt thereof the Shelby County A.B.C. Administrator shall transmit the same to the County Treasurer for deposit into the appropriate designated account.
(D) All applicants shall voluntarily submit to a criminal background check and shall sign a waiver allowing the release of this information to the Shelby County A.B.C. Administrator.
(E) All county licenses shall be in a form as may be prescribed by the County Fiscal Court and shall contain:
(1) The name and address of the licensee;
(2) The number of the license;
(3) The type of license;
(4) A description by street and number, or otherwise, of the licensed premises;
(5) The name and address of the owner of the building in which the licensed premises are located;
(6) The expiration date of the license; and
(7) A Statement in substance that the license shall not be a property or vested right and that it may be revoked at any time pursuant to law.
(F) All licenses approved by the County A.B.C. Administrator and issued by the County of Shelby shall begin on January 1 of any year and shall expire on December 31.
(G) The renewal by the County A.B.C. Administrator of the license shall not be construed to be a waiver or acceptance of any violation which occurred prior to the renewal and shall not prevent subsequent proceedings against the licensee.
(H) Any licenses issued after July 1 of any year shall be assessed a fee which is based on the pro rata portion of the remainder of the license period. However, the cost of any license shall not be less than that for a period of 6 months.
(I) In addition, any other penalties allowed by this chapter or any other statutory provision, a violation of this section shall authorize and require the revocation of the license and the County shall not be required to refund any portion of the license fee.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.21 FEES.
(A) The annual County License fee for a limited restaurant drink license and a golf course license shall be $600 with an annual renewal fee of $400. The County, with approval of the Fiscal Court, may increase this fee if allowed by KRS.
(B) The County A.B.C. Administrator shall transmit fees upon collection to the County Treasurer to be deposited into the appropriate designated account. County licenses shall be issued by the County A.B.C. Administrator upon receipt of notice from the A.B.C. Board Administrator of the finality of appeal or protest permitted upon the license pursuant to the provisions of KRS 243.360, and the fact the A.B.C. Board Administrator has approved the applicant's state application.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.22 REFUND OF LICENSE FEES.
Should any licensee under this chapter be prohibited from conducting this business for the full period covered by the license because of any changes that may hereafter be made in the laws of the Commonwealth of Kentucky with reference to alcoholic beverages or other cause outside licensee's control then the County shall refund to it the proportionate part of the license fee for the period during which it is prevented from carrying on this business if the licensee provides sufficient proof to the County A.B.C. Administrator that the period of inactivity was not the fault of the licensee or the result of a revocation, suspension or other wrong doing by licensee or agent or employee of the licensee.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.23 LOST OR DESTROYED LICENSE.
When a license shall be lost or destroyed without fault on the part of the licensee or his or her agent or employee, a duplicate in lieu of the original license shall be issued by the County A.B.C. Administrator after he or she shall be satisfied as to the facts, provided, however, that the person applying for this duplicate license shall pay a fee of $10 for issuing the duplicate.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.24 TEMPORARY CLOSING.
In the course of any 1 day of operation of a licensed premise should multiple violations of the chapter or other statutes or ordinances of a public disorder nature, e.g. disturbing the peace, be reported and investigated by the County Sheriff or other law enforcement agency, the reoccurrence shall be reported to the County A.B.C. Administrator by the Sheriff or other law enforcement agency. The County A.B.C. Administrator shall, in the interest of public health, safety, morals and welfare, direct the County Sheriff or other law enforcement agency to temporarily suspend the license in question for the remaining hours of the day in question by locking the premises after dispersing the patrons. The temporary suspension shall remain in effect until review of the alleged violations by the County A.B.C. Administrator; the review shall occur on the next business day.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.25 REVOCATION OR SUSPENSION.
(A) Any license may be revoked or suspended by the County A.B.C. Administrator if the licensee shall have violated any of the provisions of KRS Chapters 241, 243 or 244, or any rule or regulation of the A.B.C. Board or of the Department of revenue relating to the regulation of the manufacture, sale and transportation or taxation of alcoholic beverages or if the license shall have violated or shall violate any Act of Congress or any rule or regulation of any federal board, agency or commission, or this chapter now, heretofore, or hereafter in effect relating to the regulation of the manufacture, sale and transportation or taxation of intoxicating liquors of any rules or regulations of the County heretofore in existence or authorized by the terms of KRS Chapters 241, 243 and 244 to be created, referred to irrespective or whether the licensee knew of or permitted the violation or whether the violation was committed in disobedience of his or her instructions, or any license may be revoked or suspended for any cause which the County A.B.C. Administrator in the exercise of his or her sound discretion deems sufficient.
(B) A license may be revoked for any of the reasons for which the County A.B.C. Administrator would have been required to refuse a license if the facts had been known.
(C) Any license must be revoked or suspended for the following causes:
(1) Conviction of the licensee or his or her agent or employee for selling any illegal beverages on the premises license;
(2) Making any false, material statements in an application for a license;
(3) If, within a period of 2 consecutive years, any licensee or any of his or her clerks, servants, agents or employees of the licensee shall have been convicted of 2 violations of the terms and provisions of KRS Chapters 241, 243 or 244 or any act heretofore or hereafter in effect relating to the regulation of the manufacture, sale and transportation of alcoholic beverages or if, within that period, any licensee or any of the clerks, servants, agents or employees of the license shall have twice been convicted of any felony or of any misdemeanor directly or indirectly attributable to the use of alcoholic beverages, or of 1 felony and 1 misdemeanor;
(4) Willful and deliberate failure or default of a licensee to pay an excise tax or any part thereof, or any penalties imposed by or under the provisions of any statutes, this chapter or Acts of Congress relative to taxation, or for a violation of any rules or regulations of the Department of Revenue made in pursuance thereof;
(5) Revocation of any license granted under any Act of Congress relative to the regulation or manufacture, sale and transportation of alcoholic beverages. Any license must be revoked or suspended in the case of sale of alcoholic beverages by the licensee at a price in excess of the price set by federal or state regulations; and
(6) Setting up, conducting, operating or keeping, on the licensed premises, any gambling game, device, machine or contrivance, or lottery or gift enterprise, or handbook or facility for betting or transmitting bets on horse races; or permitting to be set up, conducted, operated, kept, or engaged in, on the licensed premises, any game, device, machine, contrivance, lottery, gift enterprise, handbook or facility.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.26 NOTICE TO LICENSEE; SURRENDER OF LICENSE; HEARING.
(A) Within 3 days after any order of revocation of a license becomes final, notice of revocation shall be given to the licensee and to the owner of the licensed premises. A notice mailed to the licensee and to the owner of the licensed premises at the address shown in the last application for a license or in the last statement supplemental to the application shall be deemed sufficient compliance with this section. The licensee shall at once surrender his or her license to the County A.B.C. Administrator. If the revoked license is not forthwith surrendered by the licensee, the County Sheriff or other law enforcement agency, at the request of the County A.B.C. Administrator, shall immediately cause 1 of its officers to take physical possession of the license and return it to the County A.B.C. Administrator.
(B) When a license has been revoked, the former licensee may, with prior approval of the County A.B.C. Administrator, dispose of and transfer his or her stock of alcoholic beverages to an appropriate entity.
(C) Appeal from the decision of the County A.B.C. Administrator shall be to the Kentucky A.B.C. Board.
(D) If a license is revoked or suspended by an order of the County A.B.C. Administrator, the licensee shall at once suspend all operations authorized under his or her license.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.27 TRANSFER OR ASSIGNMENT.
No license issued under this chapter shall be transferred or assigned either as to licensee or location.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.28 REFUSAL OF LICENSE.
(A) A county license shall be refused:
(1) Causes for refusal to issue or renew a license and for suspension or revocation of a city license shall be the same as provided for state license according to KRS 243.450, 243.490 and 243.500, as well as violation of any county ordinance regarding alcohol beverage licensing, sales or the administration thereof;
(2) If the applicant has done any act for which a revocation of license would be authorized; or
(3) If the applicant has made any false material statement in his or her application.
(B) A license (new issuance or renewal) may be refused by the County Administrator for any reason which he or she, in the exercise of his or her sound discretion, may deem sufficient.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.29 REVIEW OF LICENSE.
(A) Applicants to whom a license is issued authorizing the sale of alcoholic beverages by the drink pursuant KRS 242.185(6) under this chapter shall provide periodic information demonstrating compliance with the continuing requirement that 70% of the applicant's business income is earned from the sale of food.
(B) This documentation shall be provided on a schedule to be coordinated with the applicant's quarterly Occupational Tax fee filings.
(C) This information shall consist of a certificate from the licensee. This certificate shall state:
“I hereby submit the pertinent records of _____________, Licensee under Ordinance No. ___, Series 2003, and certify that the Licensee earned at least 70% of its gross receipts from the sale of food during the quarter ending ___________. The Licensee derived ___% of its gross sales from food and ___% of its gross receipts from alcohol.”
(D) This certificate shall include a brief description of the methodology utilized in the determination of the certified percentage.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.30 CHANGE OF INFORMATION.
(A) Since some of the licenses issued by the County are in the name of a corporation, it is necessary that stock ownership changes in the corporation be reported to the County A.B.C. Administrator. The County A.B.C. Administrator can therefore, investigate the person to whom the stock is transferred in order to ascertain whether that person is precluded by statute from holding an interest in an alcoholic beverage license.
(B) As used herein, the word “change” is construed to include any change in directors or officers of the corporation, or change in ownership of stock whereby any person secures 10% of the outstanding stock. Transfer of more than 10% of the total stock shall require a new license.
(C) The following information will be required concerning any new director, officer, or person securing any interest in alcoholic beverage license:
(1) Name and address;
(2) Nature of interest;
(3) Whether or not a citizen of the United States;
(4) Date of birth;
(5) Date residence was established in Kentucky, if a resident of Kentucky. If Shelby County resident, indicate when residence was established;
(6) Whether or not he or she has any interest in any other license or corporation or partnership holding a license in any other state or province;
(7) Extent of stock ownership; and
(8) Whether or not he or she has any interest in any license or corporation or partnership holding a license in any other state or province.
(D) This information shall be filed with the County A.B.C. Administrator as an amendment of application pursuant to which the license was granted.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.31 DORMANCY.
(A) It is necessary that a licensee actually conduct the business authorized by that license or else the license will be declared dormant and become null and void after 90 days. That is the intent of this section. Realizing that a licensee, like other business, may have his or her business interrupted by situations not under his or her control, various exceptions to the dormancy rule have been included in this section.
(B) Any license under which no business is transacted during a period of 90 days shall become null and void. At the expiration of the 90-day period, the license shall be surrendered to the County A.B.C. Administrator.
(C) Except that the provisions of division (A) above, shall not apply to any licensee who is unable to continue in business at the premises for which a license is issued due to construction, an act of God, casualty, death, the acquisition of the premises by any federal, state, city or other governmental agency under power of eminent domain, acquisition is voluntary or involuntary, or loss of lease through failure of landlord to renew existing lease. The licensee shall furnish to the County A.B.C. Administrator a verified statement setting forth the fact that the licensee is unable to continue in business prior to the expiration of the 90 days of inactivity, for any of the reasons set forth herein, and the County A.B.C. Administrator may grant an extension of the dormancy with the license continuing to remain in effect during the license period or until same is transferred to another premises, notwithstanding the fact that no business is transacted during this period; provided, however, no license shall be considered valid unless business is conducted thereunder with 12 months from the date of notice to the County A.B.C. Administrator. An extension may not extend beyond the renewal date but may be for certain times as the County A.B.C. Administrator deems appropriate in exercise of his or her sound discretion.
(D) All renewal licenses must be on file with the County A.B.C. Administrator within 30 days prior to the expiration of the licenses for the preceding license period or the same shall be canceled, except where the licensee is unable to continue in business at the same premises licensed during the preceding license prior due to construction, an act of God, casualty, death, the acquisition or threatened acquisition of these premises by any federal, state, city or other governmental agency or private corporation, possessing power of eminent domain, whether the acquisition is voluntary or involuntary, or loss of lease through failure of landlord to renew existing lease; that the licensee shall file a written verified statement no less than 20 days from the expiration date of the license, setting forth these facts, and that the County A.B.C. Administrator is hereby authorized to extend the time for filing of renewal of the license for a reasonable length of time within the sound discretion of the County A.B.C. Administrator; provided, however, the licensee shall pay a license fee from the expiration date of the former license or licenses. This license fee shall not be payable until application is made for the transfer of the license to a new location.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.32 APPROVAL OF PREMISES.
The County A.B.C. Administrator shall not grant any alcoholic beverage license or approve a renewal of a license until the applicant and his or her place of business shall have been approved by the city building inspector, and any and all other inspections required by the Kentucky Building Code.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.33 DELINQUENT TAXES OR FEES.
No license to sell alcoholic or malt beverages shall be granted or renewed to any person who is delinquent in the payment of any taxes or fees due the County at the time of issuing the license; nor shall any license be granted or renewed to sell upon any premises or property, owned and occupied by the licensee upon which there are any delinquent taxes or fees due the County. Further, if a licensee becomes delinquent in the payment of any taxes or any fees due the County at any time during the license period, the license to sell alcoholic or malt beverages shall be subject to revocation or suspension.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.34 BOOKS, RECORDS AND REPORTS.
(A) Every licensee under this chapter shall keep and maintain upon the licensed premises adequate books and records of all transactions involved in the sale of alcoholic beverages in the same manner required by the reasonable rules and regulations of the A.B.C. Board. The books and records shall be available at all reasonable times for inspection by the County A.B.C. Administrator and the County employees who may assist the County A.B.C. Administrator in his or her review.
(B) For the purpose of assisting the County A.B.C. Administrator in enforcement of this chapter, every licensee required by statute to report to the A.B.C. Board shall provide a copy of the reports to the County A.B.C. Administrator.
(Ord. 12-16-12, passed 12-16-2003)
§ 110.99 PENALTY.
(A) The following penalties shall be in addition to any criminal prosecution instituted in Shelby County District Court against an alleged violator and fines hereunder shall be payable to the County A.B.C. Administrator.
(B) The County A.B.C. Administrator may assess a fine of not more than $500 per violation. This payment of the fine shall be transmitted to the County Treasurer to be deposited in the appropriate designated account.
(C) Any person, firm or corporation who violates any of the provisions of this chapter, for which no other penalty is hereby provided, shall, for the first offense, be fined not less than $100 nor more than $200 or imprisoned in the county jail for not more than 6 months, or both; and for the second and each subsequent violation, he or she shall be fined not less than $200 nor more than $500, or imprisoned in the county jail for not more than 6 months, or both. The penalties provided for in this section shall be in addition to the revocation or suspension of the offender's license. If the offender is a corporation, joint stock company, association or fiduciary, the principal officer or officers responsible for the violation may be imprisoned.
(Ord. 12-16-12, passed 12-16-2003)
CHAPTER 111: ADULT ENTERTAINMENT ESTABLISHMENTS
Section
111.01 Findings, declaration of policy
111.02 Purpose
111.03 Definitions
111.04 Regulations pertaining to the exhibition of sexually explicit films, videos or live entertainment in viewing booths
111.05 Restrictions, signage and operating requirements for all Adult Entertainment Establishments
111.06 Location restrictions
111.07 Administration
111.08 Issuance of license or denial of license
111.09 Fees
111.10 Inspection
111.11 License suspension
111.12 License revocation
111.13 Procedure for denial, suspension or revocation
111.14 Transfer of license
111.15 Scienter necessary to prove liability
111.16 Failure of official to meet time frame not to risk applicant or licensee rights
111.99 Penalty
§ 111.01 FINDINGS, DECLARATION OF PUBLIC POLICY.
(A) The Shelby County Fiscal Court finds it has been the experience of other communities that certain adult entertainment activities which are located near areas zoned for residential use, near schools and public parks, and near malls and similar open spaces that cater to use by family groups and children adversely affect the viability of such nearby properties for their described purposes.
(B) (1) The Shelby County Fiscal Court relies on such evidence of the adverse secondary effects of adult entertainment uses that is within the common knowledge of local governments and is widely reported in judicial opinions, media reports, land use studies, and crime impact reports made available to the Shelby County Fiscal Court, several of which are set forth herein. Additionally, the Shelby County Fiscal Court relies on repeated judicial findings upholding the ability of local governments to rely on this body of secondary effects evidence to impose reasonable time, place, and manner regulations on Adult Entertainment Businesses. The Shelby County Fiscal Court relies upon and incorporates the findings of secondary effects discussed in the following non-exhaustive list of cases: City of Erie v. Pap 's A.M., 529 U.S. 277 (2000); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); California v. LaRue, 409 U.S. 109 (1972); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Currence v. City of Cincinnati, 28 Fed. Appx. 438 (6th Cir. 2002); Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993); Ben's Bar, Inc. v. Village of Somerset, 316 F. 3d 702 (7th Cir. 2003); Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Deja vu v. Metro Government, 1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994): O'Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir. 1990); Deja vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Z.J. Gifts D-2, LLC v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); World Wide Video of Spokane, Inc. v. City of Spokane, 227 F. Supp. 2d 1143 (E.D. Wash. 2002); Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); Bigg Wolf Discount Video Sales, Inc. v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); Kentucky Restaurant Concepts, Inc. v. City of Louisville and Jefferson County, 209 F. Supp. 2d 672 (W.D. Ky. 2002); Restaurant Ventures v. Lexington-Fayette Urban County Gov't., 60 S.W.3d 572 (Ct. App. Ky. 2001) Mr. B's Bar & Lounge, Inc. v. Louisville, 630 S.W.2d 564 (Ct. App. Ky. 1981); and Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783 (6th Cir. 2004).
(2) The Shelby County Fiscal Court further relies on reports from other communities concerning secondary effects occurring in and around Adult Entertainment Businesses, including, but not limited to, Phoenix, Arizona; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Tucson, Arizona; Testimony, Warner-Robins, Georgia; Newport News, Virginia; St. Cloud, Minnesota; New York Times Square study; State of Minnesota; and also on findings of physical abuse from the paper entitled Strip Clubs According to Strippers; Exposing Workplace Sexual Violence, by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota. Based on cases and reports such as these, the Shelby County Fiscal Court finds:
(a) Adult Entertainment Businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, illicit drug use and drug trafficking, negative impacts on property values, urban blight, pornographic litter, and sexual assault and exploitation.
(b) Sexual acts, including masturbation, oral and anal sex, sometimes occur at unregulated Adult Entertainment Businesses, especially those which provide private or semi-private booths, rooms, or cubicles for view films, videos, or live sexually explicit shows, which acts constitute a public nuisance and pose a risk to public health through the spread of sexually transmitted diseases.
(c) Numerous studies and reports have determined that semen is found in areas of Adult Entertainment Businesses where persons view sexually oriented films.
(d) Sanitary conditions in some Adult Entertainment Establishments are unhealthy, in part because of the failure of owners or operators to regulate those activities and maintain their facilities.
(e) Each of the foregoing negative secondary effects constitutes a harm which the Shelby County Fiscal Court has a substantial government interest in preventing.
(C) Adult entertainment activity tends to attract an undesirable clientele which discourages neighboring residents from undertaking civic improvements, causes residents and businesses to move elsewhere and frustrates attempts to attract new residences and business to come into an area, all of which factors contribute to a diminution of property values and to a general deterioration of neighborhoods.
(D) The small closet-like rooms or booths at adult amusement arcades in other communities have encouraged persons to loiter for the purposes of engaging in unlawful, often anonymous, sexual conduct and have encouraged lewd conduct in public places, thereby creating public nuisances and generally unsanitary and unhealthful conditions that create dangers to the public health, welfare and safety.
(E) The concentration of sexually explicit movies and books and sexual paraphernalia in Adult Entertainment Establishments which also house sexually explicit movies, as well as hotel rooms rented by the hour to couples afforded free sexually explicit movies in the hotel room, have provided prostitutes an appealing and visible meeting place to ply their trade and have created public nuisances in otherwise respectable neighborhoods.
(F) Children, the family environment and residential neighborhoods suffer injury from the deleterious effects and harmful consequences resulting from the distribution of, and exposure to, certain sexually explicit items and devices. This is particularly so when such items and devices are permitted to leave a business's premises and litter the immediate neighborhood and other areas where children are likely to be.
(G) The noise generated by patrons coming and going from Adult Entertainment Establishments causes a substantial disruption to nearby residents, and modest curtailment of the hours during which entertainment is offered to patrons of such establishments would afford some relief to persons living in those nearby residences without significantly interfering with the availability of adult entertainment.
(H) Nationally, there is extensive involvement of organized crime in the business of adult bookstores, and the disclosure of persons who own, as well as the names of those persons who operate adult bookstores and other Adult Entertainment Establishments, will aid law enforcement officials in the enforcement of the federal and state laws prohibiting the distribution of obscene matter, the use of minors to distribute obscene matter, the advertising of obscene material, the distribution of obscene material to minors, promoting the sale of obscenity, the use of a minor in a sexual performance, the distribution of material portraying a sexual performance by a minor, the promoting of material portraying a sexual performance by a minor and the advertising of material portraying a sexual performance by a minor and the use of minors to distribute materials portraying a sexual performance by a minor.
(I) The Fiscal Court of Shelby County declares as a matter of public policy that in order to preserve surrounding neighborhoods, prevent blight and the deterioration of the neighborhoods within Shelby County, protect property values, protect children from the deleterious effects of exposure to sexually explicit material and prevent the incidence of crime and juvenile delinquency, the licensing and regulation of Adult Entertainment Establishments is a public necessity and is required in the interest of public health, safety and welfare as well as the economic and aesthetic well-being of the people.
(J) Adult Entertainment Businesses have operational characteristics, which should be reasonably regulated in order to protect those substantial governmental concerns.
(K) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and operators of Adult Entertainment Businesses. Further, such a licensing procedure will place an incentive on operators to see that Adult Entertainment Businesses that may locate in Shelby County are run in a manner consistent with the health, safety and welfare of patrons and employees, as well as the citizens of Shelby County. It is appropriate to require reasonable assurances that the licensee is the actual operator of the Adult Entertainment Business, and fully in possession and control of the premises and activities occurring therein.
(L) The regulation of nudity in Adult Entertainment Businesses will further the substantial governmental interests in preventing prostitution and other sex-related crimes, including illegal sex acts, and protecting the public health, safety, and welfare.
(M) Requiring sufficient lighting in all Adult Entertainment Businesses will advance the substantial governmental interest in curbing illegal sexual activity on the premises of Adult Entertainment Businesses, and will facilitate enforcement of the provisions of this chapter and other federal, state and local laws, thereby furthering the substantial governmental interest in protecting the public health, safety, and welfare.
(N) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of Adult Entertainment Businesses, and by employees of such businesses, will facilitate the enforcement of the provisions of this chapter and other federal, state and local laws, and will thereby further the substantial government interest in protecting the public health, safety, and welfare.
(O) A person who recently has been convicted of a sexually related crime is not an appropriate individual to operate or be employed in an Adult Entertainment Business.
(P) Barring such individuals from the management of and employment in Adult Entertainment Businesses for a period of years serves as a deterrent to and prevents the commission of sexually related criminal acts, including conduct which leads to the transmission of sexually transmitted diseases.
(Ord. 05-17-06, passed 5-17-2005)
§ 111.02 PURPOSE.
(A) (1) It is the purpose of this chapter to regulate Adult Entertainment Businesses in order to promote the health, safety and welfare of the residents of Shelby County, Kentucky, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of Adult Entertainment Businesses within Shelby County. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material;
(2) To prevent the unsanitary conditions which exist at adult amusement arcades and similar establishments and to prevent health risks, including AIDs and other sexually transmitted diseases, caused by illicit and unlawful sexual relations in such public establishments;
(3) To protect children and the residential neighbors from the deleterious and harmful effects of exposure to certain sexually explicit items and devices; and
(4) To obtain the identity of persons licensed and to be licensed for the operation of establishments selling, showing, renting or offering certain sexually explicit material or entertainment to insure proper identification of those persons responsible for the operation of such businesses so as to assist in the proper enforcement of this chapter.
(B) It is not the purpose of this chapter to establish community standards on obscenity nor to permit persons to engage in any activity which is in violation of law, including but not limited to, state laws pertaining to the advertising, promotion, distribution or sale of obscene matter or matters portraying a sexual performance by a minor, or state laws pertaining to the use of a minor in a sexual performance or promotion of sexual performance by a minor, or the use of a minor to distribute material portraying sexual performance by a minor.
(Ord. 05-17-06, passed 5-17-2005)
§ 111.03 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ENTERTAINMENT ACTIVITY or ACTIVITIES or ADULT ENTERTAINMENT ESTABLISHMENT. Shall mean regular commercial participation in 1 or more of the following defined activities:
(1) ADULT AMUSEMENT ARCADE. Any place to which the public is permitted or invited where one or more video booths and/or live viewing booths are available to patrons where the images shown and/or live entertainment presented are characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas.
(2) ADULT CABARET. A nightclub, bar, restaurant, or similar commercial establishment that as a substantial or significant portion of its business regularly features:
(a) Persons who appear in areas of the establishment open to patrons in a state of nudity or state of semi-nudity so as to expose to view specified anatomical areas; or
(b) Any live entertainment, exhibition, performance, or dance by persons whose entertainment, exhibition, performance, or dance is characterized by an emphasis on the depiction or description of specified anatomical areas or specified sexual activities; or
(c) Adult media.
(3) ADULT MEDIA. Magazines, books, photographic reproductions, videotapes, movies, slides, compact discs in any format (such as, CD-ROM, CD), digital video discs in any format (such as, DVD), other devices used to reproduce or record computer images, or other print, video, film, electronic, computer-based, analog, or digital media characterized by an emphasis on matter depicting, describing or related to specified sexual activities or specified anatomical areas.
(4) ADULT MEDIA STORE. An establishment that rents and/or sells adult media and that meets any of the following tests:
(a) More than 25% of the gross public floor area is devoted to adult media; or
(b) More than 25% of the stock in trade consists of adult media; or
(c) A media store which advertises or holds itself out in any forum as an Adult Entertainment Business by use of such teems as X-rated, XXX, adult, sex, nude, or otherwise advertises or holds itself out as an Adult Entertainment Business; or
(d) An establishment as a prevailing practice excludes minors by virtue of age, regardless of whether the minor is accompanied by a parent or guardian.
(5) ADULT MOTEL. A hotel, motel or similar commercial establishment which:
(a) Offers accommodations to the public for any form of consideration; and provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and which advertises the availability of sexually oriented materials, which may include the use of teems such as XXX or adults only. Excluded from this definition is a business that does not advertise adult materials to the public but only posts a notice or sign in the hotel or motel room advising guests of the availability of cable television or that adult movies are available upon request of the guest; or
(b) Offers a sleeping room for rent for a period of time that is less than 10 hours; or
(c) Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.
(6) ADULT MOTION PICTURE THEATER. A commercial establishment occupying a building or portion of a building (including any portion of a building which contains more than 150 square feet) where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions, or other projected images are regularly shown, if such establishment as a prevailing practice excludes minors by virtue of age, regardless of whether the minor is accompanied by a parent or guardian, or if, as a prevailing practice, the films, motion pictures, video cassettes, slides or similar photographic reproductions, or other projected images presented are characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons therein.
(7) ADULT NOVELTY STORE.
(a) A business offering goods for sale or rent and that meets any of the following tests:
1. More than 5% of the stock in trade of the business consists of sexually-oriented novelties or toys; and more than 5% of the gross public floor area of the business is devoted to the display of sexually oriented novelties or toys; or
2. It offers for sale items from any 2 of the following categories: Adult media, sexually-oriented novelties or toys or other items marketed or presented in a context to suggest their use for such practices, and the combination of such items constitutes more than 10% of the stock in trade of the business and occupies more than 10% of the gross public floor area of the business; or
3. It advertises or holds itself out in any forum as an Adult Entertainment Business by use of such terms as sex toys, X-rated, XXX, adult, sex, nude, or otherwise advertises or holds itself out as a sexually oriented business.
(b) ADULT NOVELTY STORE shall not include any establishment which, as a substantial portion of its business, offers for sale or rental to persons employed in the medical, legal or education professions anatomical models, including representations of human genital organs or female breasts, or other models, displays, and exhibits produced and marketed primarily for use in the practice of medicine or law or for use by an educational institution.
(8) ADULT THEATER. A theater, concert hall, auditorium, or similar commercial establishment that as a substantial or significant portion of its business regularly features persons who appear in a state of nudity or semi-nudity, live performances which are characterized by an emphasis on the depiction or description of specified anatomical areas, specified sexual activities, or live entertainment of an erotic nature that is characterized by an emphasis on the depiction or description of specified anatomical areas, or specified sexual activities.
(9) COVERING. Any clothing or wearing apparel, including pasties, but does not include any substance that can be washed off the skin, such as paint or make-up, or any substance designed to simulate the appearance of the anatomical area beneath it.
(10) EMPLOYEE. A person who performs any service or work on the premises of an Adult Entertainment Business, including but not limited to providing entertainment, performing work of a management or supervisory nature, or performing support functions, on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not said person is paid a salary, wage or other compensation by the operator of said business. EMPLOYEE does not include a person on the premises exclusively for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
(11) EMPLOYEE STATION. An area on the premises of an Adult Entertainment Business designated for occupancy exclusively by 1 or more employees whose duties include assuring compliance with the provisions of this chapter.
(12) GROSS PUBLIC FLOOR AREA. The total area of the building accessible or visible to the public, including showrooms, motion picture theaters, motion picture arcades, service areas, behind-computer areas, storage areas visible from such other areas, restrooms (whether or not labeled public), areas used for cabarets or similar shows (including stage areas), plus aisles, hallways and entryways serving such areas.
(13) HEALTH ENFORCEMENT OFFICER. The Director of the Shelby County Health Department or his or her authorized representative.
(14) LAW ENFORCEMENT OFFICIAL. The Shelby County Sheriff or his or her authorized representative.
(15) LICENSEE. With respect to an Adult Entertainment Business license issued under this chapter, a person in whose name a license to operate an Adult Entertainment Business has been issued, as well as the individual(s) designated on the license application as principally responsible for the operation of the Adult Entertainment Business. With respect to an employee license issued under this chapter, LICENSEE means a person in whose name a license has been issued authorizing employment in an Adult Entertainment Business.
(16) LIVE VIEWING BOOTH. Any private or semi-private booth, cubicle, stall or compartment which is designed, constructed or used to hold or seat patrons wherein a live performance is presented to patrons which is distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas. A LIVE VIEWING BOOTH shall not mean a theater, movie house, playhouse or a room or enclosure or portion thereof which contains m