Lewis v. Smothers

• Citation: 663 S.W.2d 228
• Parties: Hon. Richard H. LEWIS, Commissioner, Department of Alcoholic Beverage Control; Hon. Edward A. Farris, Distilled Spirits Administrator; and Hon. John C. Crimmins, Malt Beverage Administrator, etc., Movants, v. William SMOTHERS d/b/a Jane Todd Inn, Respondent.
• Decision Date: 20 January 1984
• Court: Court of Appeals of Kentucky

Page 228

663 S.W.2d 228

Hon. Richard H. LEWIS, Commissioner, Department of Alcoholic

Beverage Control; Hon. Edward A. Farris, Distilled Spirits Administrator; and Hon. John C. Crimmins, Malt Beverage Administrator, etc., Movants, v. William SMOTHERS d/b/a Jane Todd Inn, Respondent.

Court of Appeals of Kentucky.

Jan. 20, 1984.

Catherine C. Staib, Alcoholic Beverage Control Bd., Frankfort, for appellant.

William S. Young, Frankfort, for appellee.

Pam Johnson, Frankfort, for amicus curiae, Marion County Ministerial Ass'n.

Before DUNN, McDONALD and WILHOIT, ^* JJ.

McDONALD, Judge.

This case is before the Court on motion by the Department of Alcoholic Beverage Control for relief under CR 65.07 from a temporary injunction of the Franklin Circuit Court. The injunction prevented the Department from enforcing the Department's order revoking the respondent's malt beverage license. The respondent appealed the revocation to the Franklin Circuit Court pursuant to K.R.S. 243.560. On October 26, 1982, the circuit court granted the temporary injunction to prevent enforcement of the revocation order until the appeal process before the circuit court had been exhausted.

The circuit court's order clearly violates K.R.S. 243.580(3) which states:

(3) No court may enjoin the operation of an order of revocation or suspension pending an appeal. If upon appeal to the Franklin Circuit Court an order of suspension or revocation is upheld, or if an order refusing to suspend or revoke a license is reversed, and an appeal is taken to the Court of Appeals, no court may enjoin the operation of the judgment of the Franklin Circuit Court pending the appeal. [Emphasis ours.]

The respondent alleges, and the circuit court found, that the statute quoted above is unconstitutional as an improper legislative intrusion into the inherent powers of the judiciary.

The constitutionality of that statute is the sole issue presented for decision at this time. Because we believe the statute is constitutional, we ORDER the motion for CR 65.07 relief be GRANTED, and the temporary injunction entered by the circuit court on October 26, 1982, be VACATED.

Our reasons are as follows: It appears that years of litigation over various departmental enforcement actions have failed to produce a decision of precedential value on this issue. Dicta in various opinions from the state's highest court are conflicting. Nevertheless, we feel somewhat constrained by the fact that the Court of Appeals (when it was Kentucky's court of last resort) cited the questioned statute as controlling in several instances.

Of particular interest is Heyser v. Brown, 299 Ky. 82, 184 S.W.2d 893 (1945), in which the court cited the statute as sufficient authority to support a chancellor's dismissal of a declaratory judgment and injunction action before the Oldham Circuit Court. Although the Heyser case is distinguishable from the case at hand in that the issue of constitutionality was not raised and the Heyser case was not an appeal from a departmental order, the court's reliance on the statute is strongly persuasive. Kentucky's highest court has relied on the Heyser case for the proposition that statutory administrative procedures are exclusive when they apply and a court may not use its equity powers to circumvent the statute. Black v. Utter, 300 Ky. 803, 190 S.W.2d 541 (1945); Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557 (1948).

Also, examination of the statute convinces us of its constitutionality. K.R.S. 243.580 is a valid portion of the legislative scheme for the regulation of alcoholic beverages.

The public demands strict control of and compliance with laws dealing with alcoholic beverages. There is nothing more destructive in our society than the abuse of alcohol. It has caused more suffering, mental and physical, and death than any other social or medical disorder. Unregulated and uncontrolled, it can have the effect of a dreaded plague. For these reasons, our legislature has a special and unique responsibility in the laws it enacts in this area.

This is not new thought. We find in 48 C.J.S. Intoxicating Liquors Sec. 21 (1981), this statement:

Although the liquor business is not inherently unlawful, it has been held that it is not a lawful business except as authorized by legislation of the state. The liquor business is different from ordinary business and it is in a class by itself. Since it is affected with a public interest, and is a source of danger to the community, it is subject to strict control. The power to control trafficking in alcoholic beverages and to prescribe the limits of the exercise in a field where absolute prohibition is possible is an attribute of sovereignty.

Our highest court, in Alcoholic Beverage Control Board v. Woosley, Ky., 367 S.W.2d 127 (1963), said:

The manufacture and sale of alcoholic beverages is a commercial activity which by nature requires extensive administrative supervision. The "liquor business" has long been recognized as being in a class by itself, subject to strict regulation and broader discretionary administrative control than other lawful occupations.

Here, the legislature appears to have felt that enforcement would be inhibited if the penalties imposed by the ABC Board could be suspended while an appeal was considered by the Franklin Circuit Court. A disciplined licensee would have no reason to rush such an appeal and could, to an extent, manipulate the timing of the imposition of the penalties to minimize the effect of the penalties. During this period of time innocent persons could suffer injury while the disciplined licensee is allowed to operate during the appeal process.

We conclude that K.R.S. 243.580 is not procedural in nature as the movants argue. It is a matter of substantive law. The statute does not offend Sections 27 and 28 of the Kentucky Constitution regarding separation of powers because, in defining the substantive law, the legislature may deny the use of equitable remedies.

For the reasons stated above, the Department's motion for CR 65.07 relief is GRANTED, and the injunction entered by the Franklin Circuit Court on October 26, 1982, is VACATED.

WILHOIT, J., concurs and files a separate opinion.

DUNN, J., dissents.

WILHOIT, Judge, concurring.

I concur in Judge McDonald's opinion that K.R.S. 243.580(3) does not violate the Kentucky Constitution as being an encroachment on the inherent authority of the courts in matters procedural. Here we are dealing with a statutory appeal from an administrative agency and not with an independent action originating in the Court of Justice. In such situations the Civil Rules themselves acknowledge that "procedural requirements of the statute shall prevail over any inconsistent procedures set forth in the Rules." CR 1(2). This statute could hardly constitute an encroachment upon the procedural authority of the judicial branch in a situation where by its own Rules that branch of government has elected to defer to the legislative.

DUNN, Judge, dissenting:

Here, the circuit court granted the temporary injunction to prevent enforcement of the revocation until the appeal process before the circuit court had been exhausted.

The circuit court's order clearly violates K.R.S. 243.580(3) which states in reference to appeals from the Alcoholic Beverage Control Board's orders:

(3) No court may enjoin the operation of an order of revocation or suspension pending an appeal. If upon appeal to the Franklin Circuit Court an order of suspension or revocation is upheld, or if an order refusing to suspend or revoke a license is reversed, and an appeal is taken to the Court of Appeals, no court may enjoin the operation of the judgment of the Franklin Circuit Court pending the appeal.

The respondent alleges, and the lower court found, that the statute is unconstitutional. All parties agree that the constitutionality of the statute is the sole issue presented for decision.

The facts of this case do not present it as an ideal case to test this constitutional issue. Here the Board's order that is being abated pending appeal is one of revocation, more than substantially supported and justified by the evidence before the Board. The likelihood of the appellant license holder ultimately succeeding on appeal from the order is more remote. If there was error on the part of the trial court, it was in the area of abuse of discretion in abating the order in the first place, not in the area of the statute's constitutionality.

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