Turner v. Portwood ( 1960 )

MONTGOMERY, Chief Justice.

This is an appeal from an order and judgment dismissing the appeal of W. Denzil Turner from an order of the Alcoholic Beverage Control Board. The Board’s order denied Turner’s application for a retail package liquor license to be exercised in Christian County. The statement in lieu of brief filed by appellees eliminates all other questions by saying “that the only real contention * * * is the quota for retail package liquor licenses in Christian County, Kentucky.”

On May 15, 1959, the application was denied by the Administrator of the Distilled Spirits Unit because “there are no vacancies in the quota * * * in Christian County.” On review the Board sustained the order. Other reasons for denying the application are considered- as having been abandoned in view of the statement of appellees’ counsel.

At the time of the filing of appellant’s application, the only regulation of the Board filed with the Legislative Research Commission which related to or undertook to fix quotas on retail package liquor licenses for the various counties provided that the number of such licenses to be issued should not exceed a number equal to one for every 2,500 persons resident in such county. See KRS 241.060(1), 13.081, and 13.085(1). By uncontradicted testimony, appellant proved that the population of Christian County, as determined by the method provided in the Board’s regulation, was in excess of 60,000 in 1957 and 1958. Appellant contends that such population justified a quota of 24 and that inasmuch as there were only 22 such licenses issued and operating at the time of the filing of his application it should have been approved.

On December 7, 1959, the Board denied the application of one W. N. Fritz for a similar license. The Board made findings of fact that the Christian County quota had theretofore been raised to 24 and that at that time there were 23 licenses issued and operating in Christian County. The Board concluded as a matter of law:

“1. The Alcoholic Beverage Control Board is without authority to issue a retail package liquor license without exceeding the retail package liquor license quota in Christian County, which is twenty-four (24), when twenty-three (23) retail package liquor licenses have been issued and are operating in said Christian County, and an additional application for a retail package liquor license for Christian County, Kentucky is pending before the Franklin Circuit Court and the Kentucky Court of Appeals. Said application being that of W. Denzil Turner.”

It, therefore, is considered final and conclusive that the retail package liquor license quota for Christian County is 24; that there is a vacancy; and that since the matter of whether there is a vacancy is the only question to be determined in this appeal the appellant is entitled to have his application approved and a license issued. In effect, this is conceded by appellees’ statement filed in lieu of brief.

Judgment is reversed for proceedings consistent herewith.